July 2009

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I’m thinking, more and more, that the whole Henry Louis Gates thing is a racial Rorschach test.  It’s a misshapen blob of an incident that, regardless of what can and should be learned from it, everybody with a strong opinion about The Important Issue of Race in America learns, once again, what they already believed.

I don’t think that’s necessary to explain what happened.  I’m not, at this point, interested in discussing the actual racial aspects of their encounter, or the aftermath. 

Because there is a much simpler explanation — one that might even be true — which quite fully explains the unpleasantness, the deception, and the bombastic behavior on both of their parts.

Let’s review the facts.  Well, no, we can’t; we don’t have the facts.  We have some of the facts, and, far as I can tell, they’re summarized pretty well here. My short version:

Guy comes home from a trip, with a driver. Front door is jammed, so he goes in through the back door, and then comes back around to try to force the front door open. Neighbor, seeing two guys apparently (and, in fact) trying to force a door open, calls 911 to report it, adding that maybe it’s not a burglary because they’ve got suitcases and might be returning from a trip or something.

Cops are dispatched, and arrive more or less promptly, but after the driver is gone, and the resident is home alone.

So far, everybody agrees on that, more or less.

The next part is unclear, to me, and not just because there’s two stories.

According to the police report, the cop — Crowley — asks Gates to step outside.  This means to me that, at least according to the police, Gates was inside the house, and suggests that Crowley was outside when he was doing the asking.  Okay.

According to Gates, Wikipedia says that “when the officer asked for ID, Gates replied he had to get it inside, and then officer Crowley followed him into his home without permission.”  Which suggests that Gates was outside his house when asked for the ID.

I’m sensing some idiocy here.  (I think both the cops and Gates are lying, actually, and each is doing so against their own best interests.)  But let’s, for the sake of argument, go with this:  Gates is inside his house when there’s a knock on the door, and there’s a cop there, asking him for ID.  He agrees to provide it, and leaves the door open as he goes to get it; he does, and it makes clear to the cop that this is the guy who lives there, and that there’s no reason for any further investigation.

Up to this point — assuming that all that’s just what happened, and nothing more is — nobody’s done anything wrong, although at least arguably Gates has been stupid by not locking the door.

Let’s try that again, this time with a bit more sense.  There’s a knock on the door, and Gates answers it — why not? — to find a cop there, demanding ID from the person inside the house.  Now, he’s in his home (provided to him by the U, but it’s his home), and he’s got every right to say, “No, thank you; go away, please,” and, leaving the door locked behind him, go to bed, but he doesn’t. 

Let’s let him be reasonably cooperative.  “Sure.  I’ll get my ID.”  He does, holds it up to the door; the cop reads it, and we’re at about the same place.

Except, of course, that didn’t happen. Both men tried to pull rank, and I’m guessing that both of them did it for precisely the wrong reason — as they’re both members of classes of people who often both see themselves as beleaguered and oppressed, while both live a life of almost preposterous privilege, often seeing it as their due.

Gates is a tenured professor, and Crowley’s a cop.  Both are surrounded by colleagues and sycophants — fellow tenured types and students in one case; other badged types, badge bunnies, and badgelickers in the other — who will, even without request, leap to the unfounded and often utterly preposterous conclusion that they did the right thing simply because of who they are, and both have been inculcated to believe that they have earned special respect from all they encounter because of the status that they have achieved.  Both are used to having their word taken as holy writ, no matter whether or not they happen to be full of it — and, in the case of both tenured professor types and badged types, they often are full of it, and rarely called to account.

Why would it surprise anybody that when two such archtypical examples of puffed egos and manifest privilege would bump heads — regardless of their relative status as a man in his own home and a cop investigating a report of a possible break-in — it would be anything but ugly?

So, yeah, it is possible to discuss their encounter, and explain it fully, even without reference to race.

Why the racial explanation utterly dominates the discourse about this is, alas, yet another sign that this society is just too obsessed with the whole subject.

Random shots around the web:

  • Postal service hell.
  • Launch a fake North Korean Twitter feed, watch real media pick it up. Kudos to Popehat.
  • Whatever else I may think of Obama, I really hope that on his last day in office he provides the “vault copy” of his birth certificate that all the idiot birthers have been asking for.
  • The guys at Second City Cop chime in on the arrest of Professor Gates: It’s a scheme by Gates to create an incident so he can sue.
  • I understand that they’re posted on Friday, but remind me why they’re called “Funnies”
  • When you search for “recursion” on Google, it askes you if you meant “recursion”. How cool is that?

 (Hat tip: Google Blogoscoped)

I’ve been posting about my attempt to get an answer to a simple question using Avvo Answers. In Take 1, an out-of-state lawyer provided a wrong answer. In Take 2, our own Jeremy Richey provided a good answer that misseda part of the question. I clarified my question, and now Jeremy has provided the final answer in a comment to Take 2.

My clarified question was:

If the bond is $1000/10%, that means I only had to pay $100 to get the person out. I’ll lose that. But what happens to the other 90% of the bond? Is it entirely a fictional amount that never materializes? Or could someone have to cough it up? In other words, if I post $100 on a $1000/10% bond, and then the defendant skips, am I just out the $100, or am I out the whole $1000?

Jeremy’s response nails it:

The other 90% is fictional. You won’t have to pay it. You are only out the $100.

That’s exactly what I needed to know.

I’m not entirely talentless when it comes to writing, and Jeremy is the right kind of lawyer in the right state, yet we had enough miscommunication that it took two attempts for me to ask the question right and Jeremy to answer it right.

I’m beginning to understand why Scott Greenfield thinks Avvo Answers is a bad idea.

Out of some curiosity about how bail works, I posted a question on Avvo Answers. The first answer I got was a clean miss by an out-of-state lawyer. Now Illinois’s own Jeremy Richey has stepped up.

To review, here’s the question I asked:

What’s my exposure if I bail someone out of jail?

Chicago, IL Viewed 4 times. Posted about 17 hours ago in Criminal Defense

If a friend has been arrested, it’s my understanding that I can get them out by paying 10% of their bail to the court. I assume I’d lose that money if they don’t show up to court. Do I get it back if they do? If they don’t show up, am I responsible beyond the 10%, financially or otherwise? If it matters, assume I can’t trust my friend’s family with the money and want to deal with the court directly–i.e. I don’t just want to loan them the money.

And here’s Jeremy’s answer:

Illinois did away with bail bondsmen, so don’t worry about what my out-of-state colleague wrote. The 10% rule is pretty easy. For example, if bond is set at $1,000/10%, then it will cost $100 to bond the person out. This money is paid directly to the sheriff’s department or police department holding the person. There will also be a small sheriff’s fee.

As a practical matter, you probably will never see your money again. The court will likely take the bond money and apply it to the person’s fines when his case is over. If he fails to show up for court, his bond could be forfeited. Never pay a person’s bond unless you never want to see your money again.

Good luck.

Short, simple, polite, and correct.

Well, I’m assuming it’s correct. With my meager non-lawyer knowledge of the law, I can’t really tell. Which is an improvement over the previous answer, which was clearly wrong.

I have a few comments about this answer. Let’s look at that last paragraph in a little more detail:

As a practical matter, you probably will never see your money again. The court will likely take the bond money and apply it to the person’s fines when his case is over.

Aw, cheer up, Jeremy. Every once in a while someone is found not guilty.

Aren’t they?

If he fails to show up for court, his bond could be forfeited.

What exactly does that mean? It appears Jeremy has missed the part of my question where I ask “If they don’t show up, am I responsible beyond the 10%, financially or otherwise?” Perhaps my concerns are so non-sensical that he has no idea what I’m asking.

Let me try again: If the bond is $1000/10%, that means I only had to pay $100 to get the person out. I’ll lose that. But what happens to the other 90% of the bond? Is it entirely a fictional amount that never materializes? Or could someone have to cough it up? In other words, if I post $100 on a $1000/10% bond, and then the defendant skips, am I just out the $100, or am I out the whole $1000?

Never pay a person’s bond unless you never want to see your money again.

That much, I had figured out.

I approved Jeremy’s answer, but I’ll post again if anyone else answers the question.

Update: Adventures In Avvo – Take 3

After a recent episode of Raising the Bar, I’ve been wondering if some do-gooder could go around bailing indigent people out of jail so they can go home to their families even though they don’t have $500. Not that I could afford to do that, but how would that work? I know it only takes a fraction of the bail amount to get them out, but would I be on the hook for the whole amount if they skipped their court appearances?

I tried Googling around for the answer, but couldn’t find anything useful. I’d have to ask a lawyer. The problem is, I don’t really know any criminal lawyers in Illinois who will answer my stupid questions for free.

Or do I? Isn’t this what Avvo Answers is all about? You ask a question, and a real lawyer answers it.

Scott Greenfield is always bashing Avvo Answers, saying that legal problems are rarely simple enough for this kind of treatment. The questions lack the detail that a lawyer would need to give a good answer. You really need to have a conversation.

I’m skeptical. Scott worries a lot about anything that smacks of lawyer marketing. Besides, aren’t lawyers supposed to be smart professionals? Shouldn’t they know better than to fill in too many blanks with guesswork? Isn’t giving careful answers part of their skillset?

I guess it was time to find out. I posted the following question:

What’s my exposure if I bail someone out of jail?

Chicago, IL Viewed 4 times. Posted about 17 hours ago in Criminal Defense

If a friend has been arrested, it’s my understanding that I can get them out by paying 10% of their bail to the court. I assume I’d lose that money if they don’t show up to court. Do I get it back if they do? If they don’t show up, am I responsible beyond the 10%, financially or otherwise? If it matters, assume I can’t trust my friend’s family with the money and want to deal with the court directly–i.e. I don’t just want to loan them the money.

That was yesterday. Today someone posted a response. See if you can spot any problems:

The 10% you pay to a bondsman is the price you pay for them to put up the rest of the money. Even if your friend makes each and every court appearance, at the end of the case, that money you paid is gone. That’s the bond company’s fee.

If your friend skips bail, then the bonds company revokes his bond and they send bounty hunters out for him. If you signed a contract to be responsible, you could be on the hook for any costs they incur for tracking your friend down.

The other option is to put up a cash bond or property bond directly with the court. If you post the entire amount with the court and your friend makes all appearances, then you get all your money back at the end of the case. Of course, if your friend skips, you lose whatever you put up.

This guy is a “Level 7 Contributor” on Avvo. He got his license 13 years ago and now does 80% criminal defense work. His Avvo rating is 9.5 out of 10. I think his answer is well-written, concise, and thorough.

I have only one question for him: What is this “bond company” of which you speak? Is that like the bail-bond outfit that Dog the Bounty Hunter works for? Fascinating. We don’t have those here in Illinois.

In Illinois, private bail bond services are not allowed. You have to make your arrangement directly with the court. I guess the lawyer who answered the question was unaware of this, probably because he’s in California.

Wow. Right out of the gate—first answer to my first question. I’m beginning to understand what Scott Greenfield is complaining about.

Next contestant please?

Update: An earlier version of this post had a typo that indicated the lawyer got his license 30 years ago instead of 13.

Update: Got a better answer: Adventures in Avvo – Take 2

“A lie gets halfway around the world before the truth has a chance to get its pants on.” — Winston Churchill

For those of you who didn’t follow it, an amendment to a bill in the US Senate was defeated this week, on a 58-aye, 39 nay vote.  (Yeah, I know that sound strange; another time, okay?)  You’ll find a remarkably typical MSM take on it here, and, honest, I’d love to discuss all the issues involved, but let’s save that for another time; that’s not this story. 

Part of the fight against passing this was the notoriously anti-gun advocacy group, the “Violence Policy Center,” headed by Josh “Sugar Daddy” Sugarman*, and, as you’d expect, they were slaughtering trees, right and left, to turn out their agitprop, foremost among it, a “study” (actually, a collection of unreliable anecdotes, including at least one just plain lie) that purports to show that shouts that “Concealed Handgun Permit Holders Kill 7 Police, 44 Private Citizens Over Two-Year Period”, which is, presumably, a bad thing and, putatively, some sort of reason that a law-abiding citizen who has been issued a carry permit in Minnesota can’t be trusted to, say, carry a handgun in New York. 

(Pinky swear, since right about now I know that a bunch of you are reaching for your keyboards:  yes, there’s a whole lot of other issues, around Federalism, states rights, carry permit laws, full faith and credit and all that stuff.  Not now, okay?)

Enter John Lott. Dr. Lott first came to public attention with the Lott/Mustard study that shows — pretty clearly, I think; others disagree — that among the effects of modern, mainstream, “shall issue” permit laws are to drive violent crime down slightly (when controlling for other factors), drive property crime up, also slightly.  By profession an economist, he’s kind of been dragged, kicking and screaming only a little, into the national gun debate, and like anybody else who has been around for awhile, noticed that the antigun folks need to spend a whole lot of money on Nomex undies, what with their pants bursting into flame from lying a lot.

He noticed an unlikely anecdote on page 17:

# Concealed Handgun Permit Holder: Michael C. Iheme
Date: July 24, 2008
People Killed: 1
Circumstances: On July 24, 2008, Michael C. Iheme shot and killed his wife after she left
her job at an assisted living center. Court records show that she had an active harassment
restraining order against him and suggest a history of domestic abuse, including threats to kill her. After the shooting, Iheme called 911 and said, “I have killed the woman that mess my life up….” Iheme, who had a concealed handgun permit, was found guilty of second degree murder.

Source: “911 call: ‘I have killed the woman that mess my life up,” Minneapolis Star-Tribune, July 26, 2008;
“Man found guilty of killing estranged wife in St. Louis Park,” Minneapolis Star-Tribune, February 6, 2009.

Yeah.  That does look strange, and unlikely, if you know anything about the subject.  The subject of a domestic OFP having a carry permit?  Unlikely.  Somebody with a history of domestic abuse being issued one?  It’s not impossible, but it’s not the way to bet.  Know a bit more, and it gets more unlikely — Sheriff Stanek’s office screwing up by issuing a permit to a domestic abuser with an OFP out on him?  Nah. 

But “nah” isn’t a debunking.

Lott dropped an email to Andrew Rothman, a local Minnesota activist — he’s a friend of mine, and also the Executive Director of MADFI — asking him to check it out, and Andrew got busy, sending one flunky off to see if there was some wisdom on the subject (check, but the flunky knew that) and interest in helping out on the part of David Gross (one of the few essential people in Minnesota Second Amendment activism, David’s also an attorney, who knows the laws around this stuff backwards and forwards, having been involved in the writing of some and the practice of a lot of them for decades), and dispatching another — John Pierce, second year law student at Hamline — to the courthouse to look for the documentation that would have existed if Iheme had been a carry permit holder arrested on suspicion of murder.

Gross struck paydirt — Hennepin County Sheriff Rich Stanek, who would have been the issuing sheriff, took a quick look at both the relevant laws, regulations, and facts, and went on the record that Iheme not only had not had a carry permit, but had never even applied for one.

Yup. Stanek didn’t say it — I am — but the VPC was lying.  What they said just ain’t so.

And Pierce, looking for the nonexistent orders around the carry permit, stumbled across the smoking gun:  the police report that showed that what had been seized was Iheme’s purchase permit.  Iheme had a permit to purchase a firearm, not one to carry.  But that fact had been carefully left out of the Star Tribune’s reporting with the Strib’s reckless disregard for the truth, and picked up and repeated by the folks at the VPC, who — having endlessly picked at all of the states’ carry laws — had every reason to believe that the Strib had gotten it wrong, but just passed off the lie to their easily-gulled audience.

How easy?  Well, the next morning, on the Senate floor, Robert Menendez of New Jersey quoted the VPC “study”, as though it proved something — only to be shot down (metaphorically, honest) by the sponsor of the amendment, John Thune, who had been informed that there were provable lies in it, this among them.

What can we learn from this?

Well, we can’t learn, alas, that 58 yes votes is enough to get something through the Senate; it wasn’t, the other day.  We can’t learn that the Star Tribune, in knowing and reckless disregard for the truth, will carefully leave out the word “purchase”, when talking about a “gun purchase permit” held by a murderer — we already knew that.  That’s just how they roll.

We can’t learn that the anti-gun folks like the VPC simply don’t care about truth — we already knew that, too.

We can learn, though, that networked grassroots activism can do things that the highly-paid lobbyists — from the VPC or anywhere else — just plain can’t do.

That’s worth learning, again.

* Okay, okay:  I don’t have the slightest idea if Josh Sugarman has a nickname, and, if so, what it is. 

In response to my recent missive (“Beating Customs Agents With Your Laptop”) about the fourth-amendment-free zone overseen by U.S. Customs and Border Protection, Lawrence Friedman at Customs Law sent an email explaining some of what can really happen when you try to apply technogeek law to the real world:

In response to your encryption-deleted key suggestion, you might think in terms of a lost key to a suitcase.  If CBP decides they want to search your locked suitcase, they will ask for the key.  If you say you lost the key, they will find the nearest pry bar and open it.  Same goes for your laptop.  The inspector at the border does not necessarily know or care anything about encryption levels.  What he or she knows is that he or she has the authority to take it, turn it over to Immigration and Customs Enforcement, and wait to see what they say.  You could be without your laptop for a very long time.

If Customs decides it wants to play hardball, the next thing that will happen is that you will get a summons demanding the release of the encryption key.  Even if you don’t know it, the key is in your possession or control (since you left it with someone else).  That’s good enough.  Fail to turn over the key, and you may find yourself in court with a federal judge threatening to toss you in jail until you come up with the key.

To me, that made no sense, so I explained my thinking:

Hypothetically, they wanted to see what was on my laptop, and it contained 160 gigabytes of ciphertext. They saw that. The decryption key is stored inside the country and is not crossing the border, so it’s none of their business under the fourth amendment, and the plaintext doesn’t even exist unless I decrypt the disk, so how can I be legally required to provide it?

I knew he’d eviscerate my argument, but the way he did it was chilling:

Your response, I think, points out the false premise in your thinking. The law is clear that the fourth amendment protects the interests of people, not property. And, it only applies to people inside the US. At the border, the fourth amendment offers you no protection against an unreasonable search and seizure with the limited exception of the most egregiously personal physical searches. The Supreme Court famously said that border searches are almost always reasonable because they are border searches.

Er, yes…I believe that is technically referred to as the “fuck you and your rights” theory of constitutional interpretation.

Actually, as Kip Esquire explained in a comment last year:

The same session of Congress that passed the Bill of Rights (to send to the states for ultimate ratification) had two months earlier passed a plenary customs search statute. Therefore the Fourth Amendment was “obviously” not meant to apply to customs searches — the “legislative intent” is, we are told, unambiguous and not open for debate.

By the way, Lawrence Friedman was a really nice guy to answer my idiot questions, and his blog, Customs Law, is well-written. If you have an urgent desire to keep up with the latest word in enforcement of laws relating to textile imports and preference programs, fumigation of wood packing materials, and denial of special licenses to unlade, it’s the only place to be.

One more thing. In his first message, Friedman also had this advice:

Best thing to do is cooperate with the search, identify any documents that may be privileged or business proprietary, and smile a lot.  Whenever possible, leave the laptop at home.  You can take some solace in the fact that these searches really are quite rare.

Heck, I’ve never been out of the country. It’s the principle of the thing that pisses me off. I’d like to think that lying back and trying to enjoy it is not the American way.

Columnist Steve Chapman has a piece today complaining that the coming increase in the minimum wage will cause unemployment:

Come Friday, the federally mandated minimum wage will jump to $7.25 an hour from $6.55 — an 11 percent increase. At a time when employers are laying off workers, Washington is going to make it more expensive to keep them.

If you’re a minimum wage employee, your job will pay more, but only if it still exists. These days, most companies are scrutinizing every position on the payroll to make sure it’s worth the cost. Raise the toll, and some employees will find they are no longer valuable enough to make the cut.

Increase the price of something, and people will buy less of it. This is solid economic thinking, based on well-established theories of demand. In this case, however, it may be wrong.

The problem is, when economists go looking for statistical evidence that this actually happens in the real U.S. economy, they have trouble finding it. One study even found that raising the minimum wage raises employment.

One possible explanation is simply that it’s hard to put together a good empirical study of this effect. Low-wage employment is buffetted by so many factors that it’s difficult to pick out the results of just the change in minimum wage. There could be a real increase in unemployment that is simply being missed in the noise. That doesn’t mean it’s doing no harm. We’re just not seeing it.

Another possibility is related to the problem that the minimum wage…isn’t. At least not for everybody. A variety of employees are excluded, including some workers at seasonal amusement or recreational facilities, workers at small newspapers or on small farms, workers involved in fishing or newspaper delivery, babysitters, people working as companions to the elderly or infirm, and anybody who receives part of their income as tips. An increase in the minimum wage could cause people to shift into these kinds of jobs instead of going unemployed, and there is evidence that it does.

(Oddly, Chapman actually complains about this—that increasing the minimum wage drives people into below-minimum-wage jobs—without acknowledging that this mitigates the job-destroying effects of increasing the minimum wage.)

Another possibility is that employers and employees could cheat by not recording all hours worked. This makes it look like the employee is receiving the minimum wage when the effective rate is actually lower. This is illegal, but an employee whose other choice is unemployment isn’t likely to complain.

Yet another explanations is that employers may compensate workers in ways that don’t show up in the accounting, such as providing supplies like work gloves and soap, allowing a more flexible work schedule, maintaining a break room, or tolerating on-the-job drinking. When the minimum wage is raised, employers could take back some of it by reducing these other forms of compensation.

Other possible explanations are more esoteric. For example, it’s possible that labor market imperfections play a role. People who work for minimum wage are likely to be limited in their ability to find jobs. In particular, the cost of commuting or moving may be so high as a proportion of their income that they can only take jobs in a small geographical area around where they live.

This could so limit their job market that they essentially create a labor monopsony around themselves—effectively allowing all their potential employers to conspire to pay them less than the free market rate. Increasing the minimum wage might require these employers to pay them more, but because they are below the market equilibrium price, the increase in wage rate won’t reduce the quantity demanded, and unemployment will not be affected.

On the other hand (“on the other hand” is a required phrase for all economics writers), note that if these explanations are true (with the exception of the last one) the reason an increase in the minimum wage doesn’t cause unemployment to rise is that it doesn’t actually increase worker income. That is, it does no harm because it does no good.

One of the recent kerfuffles in the legal blogosphere (or, if you must, the blawgosphere) is about anonymity. On blogs.

Yeah! I know! But they all sound so serious!

Dan Hull started it (this time) with his declaration that What About Clients was now a “Wuss-Free Zone.”

Effective July 1, 2009, and absent compelling reasons, this blog will no longer print any comments of anonymous bloggers and commenters.

Nameless blogosphere participants, in our view, are rarely worth anyone’s time, thought, or respect. Anonymous writers have already “discounted” themselves. You can discount them, too, without worrying you’re missing anything. They are second-class citizens, at best.

Elsewhere, he explains:

Comments from identified humans are easier to swallow because they have more credibility. A reputation–of a real person, who has taken a risk–backs the comment.

Not usually. Sure, if you’re Gerry Spence, your representation precedes your blog, but not for the rest of us. I mean, who the hell is Dan Hull? Who the hell is Windypundit? He’s the guy who writes the What About Clients blog, and I’m the guy who writes Windypundit. That’s all I know about him, and that’s all you need to know about me. We’re names on a web site.

If I poke around a bit, that site also links to the Hull McGuire website. Of course, now, so does mine. More interestingly, the Hull McGuire web site closes the loop with a page for J. Daniel Hull, and that page claims he’s the author of the What About Clients blog.

It sounds like we’re making progress, but we’re not making a lot of it. All we’ve proven is that the Hull McGuire site and the What About Clients blog correlate with each other in support of the Dan Hull hypothesis. We still haven’t proven that there’s a real Dan Hull out there who’s behind that identity.

Pretty much the same argument applies for Mark Bennett at Defending People and Scott Greenfield at Simple Justice. The only thing I know for sure about either of them is that they are the people who write those blogs. They could each be written by a team of law students, or they could both be written by Norm Pattis just to punk the blawgosphere. (On the other hand, Brian Tannebaum—as revealed by his Twitter stream—is an obvious artificial intelligence experiment designed to mimic a human Twitterer.)

The same can be said for this blog and my identity. I claim to be Mark Draughn, and three or four of you have even met me, but how do you know that’s my real name? Even people who’ve known me for years and recognize my face can’t be positive I’m the author of Windypundit merely from visiting this site. Anyone could use my name and post a few photos of me. You’d have to know me and hear me take credit for Windypundit before you could be sure.

Even then, what would you be sure of? That I’m the guy who you’ve known for years as Mark Draughn? Fine, but you never asked for my ID—which could be fake anyway—so how do you know that’s my real name?

Actually, that last paragraph goes too far and reveals the problem with this kind of thinking: Names just aren’t that important. We’re not asking the right questions. When it comes to bloggers, the key question is why does their identity matter?

Ultimately, a person’s identity comes down to a collection of claims about them. If you sign up at a bulletin board site, they ask you for your email address and send you a confirmation email which you have to click on. This establishes the claim that you are a person who controls that email address. That’s not much of a claim, but it proves crucial when you lose your password, because they can just email it to you. (And it proves you’re a real person so they can sell your address to spammers.)

When you buy something online with a credit card, they ask for the number, the expiration date, and the secret number on the back. This establishes the claim that you have access to the credit card. Since you could have stolen it from a purse or just copied someone’s information, they also ask your for your name and address, which establishes the claim that you know something about the registered card owner. It’s not quite the same as proving the claim that you are the card owner, but it’s close enough to do hundreds of billions of dollars in online sales every year.

In my case, I make few claims that cannot be checked by reading my blog. I claim no credentials as an economist, so if you want to know whether my economic opinion is worth anything, you’ll have to read the rest of my economic writing on my blog and decide for yourself. If I tell you which camera to buy, you’ll want to read my other photography writing and look at my pictures and decide for yourself if my advice is of value. It’s the same for everything else I write about—politics, civil liberties, movies, music—the blog stands for itself. I am who I appear to be.

That’s the case for most bloggers. Their reputation stands or falls on the contents of their blog alone. The name has nothing to do with it. As long as their identity is established with enough integrity to tie them to the contents of their blog—easy enough to do when they sign the blog articles—it doesn’t matter what name they use.

[Excuse me while I rant…]

I’ve never been out of the country, so I’ve never had to deal with the U.S. Customs Service (or whatever self-important name these tax collectors are using lately), but I hate the whole organization on principle anyway because they’re a bunch of weasels who insist on conducting unjustified searches of United States citizens.

Police need a warrant to search our homes, and even when we’re driving there are standards they have to meet—not very high standards, to be sure, but standards nonetheless—but when Customs employees want to search our bags, our vehicles, or even our persons, they can do it for any reason. It’s all right here:

A U.S. Customs and Border Protection (CBP) officer’s border search authority is derived from federal statutes and regulations, including 19 C.F.R. 162.6, which states that, “All persons, baggage and merchandise arriving in the Customs territory of the United States from places outside thereof are liable to inspection by a CBP officer.” Unless exempt by diplomatic status, all persons entering the United States, including U.S. citizens, are subject to examination and search by CBP officers.

In fact, they can even search us when they have no reason:

Essentially, COMPEX examinations involve random selection of vehicles and/or air passengers that ordinarily would not be selected for an intensive examination. By combining the results of these examinations with the results of targeted examinations, CBP is able to estimate the total number of violations being committed by the international traveling public.

In other words, they search us just to gather statistics.

I don’t know who is responsible for creating this reprehensible insult to our freedom, but I say it’s tyranny, and I say to hell with it.

Now that I’ve got that out of my system, the issue I really wanted to write about is the information search, which allows the customs weasels to search your laptop. Jayson Ahern, Deputy Commissioner of U.S. Customs and Border Protection, explains this in a document entitled “Laptop Inspections Legal, Rare, Essential”:

First, it’s important to note that for more than 200 years, the federal government has been granted the authority to prevent dangerous people and things from entering the United States. Our security measures at the border are rooted in this fundamental fact, and our ability to achieve our border mission would be hampered if we did not apply the same search authorities to electronic media that we have long-applied to physical objects–including documents, photographs, film and other graphic material. Indeed, there are numerous laws that apply to such material at the border including laws regarding intellectual property rights, technical data that can be imported or exported only under state department license and child pornography.

First of all, none of these things—electronic media, documents, photographs, film, graphic material, technical data, child pornography—count as “dangerous people and things.” It’s just data. Magnetic fields on a spinning disk, with no meaning other than what we give them.

Second, this argument is rejected everywhere else. Of course people could bring bad stuff into the United States. Everybody knows that. But we’re supposed to have rights, and these rights are supposed to protect us. The same bogeymen—copyright infringement, restricted technical data, child pornography—could be used to justify unrestricted searches within the border as well, but we recognize that our rights are too important to allow government functionaries to crush them on a whim.

Now that I’ve got that out of my system as well, the real reason I started writing this is a post by Bruce Schneier about encrypting your laptop before you cross the border:

Companies and individuals have dealt with this problem in several ways, from keeping sensitive data off laptops traveling internationally, to storing the data — encrypted, of course — on websites and then downloading it at the destination. I have never liked either solution. I do a lot of work on the road, and need to carry all sorts of data with me all the time. It’s a lot of data, and downloading it can take a long time. Also, I like to work on long international flights.

There’s another solution, one that works with whole-disk encryption products like PGP Disk (I’m on PGP’s advisory board), TrueCrypt, and BitLocker: Encrypt the data to a key you don’t know.

Schneier goes on to describe a system for encrypting your data so it can be unlocked by either of two keys, one of which is easy to remember, and the other of which is a long string of random gibberish far too long to remember. Make sure someone back home has the long one (and test it to make sure it works) but go on using the short one normally while you travel. Then, just before you hit Customs, delete the short password. Your data is now encrypted to a password that you honestly and truly do not know.

It’s simple and brilliant and technically correct.

But somehow, it all sounds like geek law. It assumes that cops and lawyers and judges are bound by rules—rules of law, rules of technology, rules of nature—and if we do everything just right, we can slip by without them laying a hand on us.

That’s how it’s supposed to be, but it doesn’t always work that way. Cops aren’t supposed to confiscate cameras from people who take pictures of them, but sometimes they do. Judges aren’t supposed to allow testimony about a suspect’s refusal to answer questions, but sometimes they do.

It makes perfect sense to me—and to anybody else familiar with the technology—that border agents shouldn’t be able to compel you to provide an encryption key, even if you know it. Like it or not, they’re free to examine the hard drive, but they have no right to ask for information in your head.

There are problems with this beautiful idea. For one thing, there’s what cryptologists sometimes refers to as “rubber hose cryptography”:



I’m not sure how far the U.S. government will go to get a peek at your laptop—the internet is surprisingly vague on actual Customs responses to encrypted data—but since they have all the guns and all the jails—and there’s no Fourth Amendment at the border—I imagine they can take it pretty far. It’s well established that they can grab your computer and keep it a few months while they investigate.

They can also refuse to let you enter the United States. You can probably fight that, but you’ll be stuck outside the country while you wait.

It’s not just criminals and libertarian weirdos who worry about this. It’s anybody with data they don’t want seen by random Customs employees—family finances, proprietary business data, confidential medical information, naked pictures of girlfriends. Just because it’s legal doesn’t mean you’re okay if everyone sees it. Some corporations go so far as to provide employees with special scrubbed computers when they travel outside the country, just so proprietary data never falls into unsafe hands.

I hate it that Americans have to worry about totalitarian crap like this.

In George Orwell’s famous distopian novel Nineteen Eighty-Four, one of the most oppressive features of his totalitarian world is the ubiquitous surveillance. Every public place—and every private room as well—is always being monitored through a massive network of two-way video cameras called telescreens. Do anything that angered the tyrannical regime of Big Brother and a voice would scream at you for your insubordination.

The first time I read 1984, I had a lot of trouble with the idea of cameras everywhere. How could everyone be under surveillance? The ruling Party was only a small portion of the population. How could they watch everyone? And, of course, who watched the people who were watching the cameras? It didn’t seem possible. The math didn’t work out. The powers that be couldn’t watch everybody all the time.

The second time I read 1984 (probably around 1984, now that I think about it) I was a Computer Science student, and that gave me a different perspective. Ubiquitous surveillance could be achieved with computers.

Not the computers of the day, to be sure. Digitized sound had only just become available to consumers, and digitized video had only just been introduced to high-end production studios. Scientists were conducting experiments in the various required artificial intelligence technologies—voice recognition, natural language understanding, image analysis, facial recognition—but it was all very, very primitive. Certainly nothing useful could be done in real time.

Automated recognition of faces and voices and behavior all seemed like insurmountable problems in computer science…except that we knew it was possible because even children could do it. Two things stood in our way: Raw processing power, and algorithm design.

The first barrier was clearly going to fall. Moore’s Law—the relentless doubling of computer power every year or two—meant that sooner or later computers would have processing power equivalent to a human brain. No individual computer is as powerful as a human brain, but based on very little research, my guess is that a large modern cloud computing facility has the raw processing power and memory of several human brains. Of course, cloud data centers also use enough energy to power a small town, so we’re not quite there yet.

We’ve made some progress on the algorithms, too. Voice recognition has become a commonplace feature of some of our technology, and everyone seems to think that the NSA has computers that can pick important keywords out of telephone calls. (Although, judging by my attempts to use my iPhone’s Voice Control feature, I could hire myself out to spies and drug dealers as a low-rent version of a World War II code talker.)

Understanding natural language—spoken or written—still has a way to go. Search engines like Google can read a lot of documents, but Google only understands them at a fairly primative level. We’re still a long way from feeding the AP wire to a computer and asking it to summarize what happened today.

On the other hand, facial recognition is good enough that webcam software can find a face in the real time video stream, follow it around the frame, and replace it with a digital mask that moves its mouth and eyebrows in sync with the subject. There’s ongoing research into having computers monitor video feeds of public areas for suspicious activities.

Still, I think we’re safe from computers for now. You need humans to watch humans.

But it’s beginning to look like that may be more of a threat than I thought, and it depresses the hell out of me.

Scott Greenfield points us to the story of a blog called Just a Girl in Short Shorts Talking About Whatever. I’m not familiar with it, but apparently the author, Becky, has something of an irreverent libertarian outlook.

Unfortunately, if you click on the link above, you’ll see that Blogger (which is owned by Google) has placed a warning on the blog.

Some readers of this blog have contacted Google because they believe this blog’s content is objectionable. In general, Google does not review nor do we endorse the content of this or any blog. For more information about our content policies, please visit the Blogger Terms of Service

[And if you click “I understand and I wish to continue” you’ll hit a page that plays music, so be careful if you’re at work.]

The content warning is devastating because it apparently interferes with the search engine indexing of her site—something that a Google-owned operation like Blogger should understand. Becky says she’s vanishing fast from Google’s search engine. (On the other hand, Google is still making money off of AdSense advertising on her site.)

Becky attributes this to “some rather low-level Google employee” responding to complaints. I have my doubts. Google likes to automate as much as possible, so I suspect the flagging of the content as objectionable is done entirely by algorithm. Here’s what Google has to say on one of their help pages:

When someone visiting a blog clicks the Flag button in the Blogger Navbar, it means that person believes the content of the blog may be potentially offensive or illegal. We track the number of times a blog has been flagged as objectionable and use this information to determine what action is needed.

I don’t see anything about a human review. Google would prefer it that way so they can save labor and claim to be unbiased. In this way, labeling the content as “objectionable” is a purely objective designation: People have objected to it.

(If you’re thinking of leaving a comment pointing out that libertarian principles allow a non-governmental entity like Google to censor whatever they want, please know that—as is typical of libertarian debate—me and Scott Greenfield and the guys from Popehat have been spraying each other with friendly fire all day over this issue in Scott’s comment section.)

In any case, Becky also touches on a far more disturbing issue:

I am pretty certain that any readers, who took the time to bitch and moan to Google, were much more concerned about my politics, and ideological bent, than anything that actually offended their prurient sensibilities–this has historically been the case with this sort of thing on this blog.

I’ve been around the web long enough to hear a certain ring of truth in what she’s claiming. Basically, her readers didn’t like what she was saying and—rather than just reading something else—they decided to manipulate Blogger into silencing her.

Sigh. When there are cameras on every street, in every business, and in every room of our private homes, Big Brother won’t need a hundred warehouses full of computers to keep an eye on all of us and punish us when we stray from the party line.

The computers might help, but we’ll do it to each other.

The New York Times has up a story about distracted driving and cell phones. I only skimmed the story—I’m skeptical about the issue, but I don’t know enough to really have an opinion—because I was looking at the picture. Radley Balko had pointed it out in a passing comment:

I’m trying to figure out how the photo for this NY Times scare story on distracted driving was taken. I can’t really conceive of a scenario where it wasn’t staged. Which means the caption is misleading.

The picture is captioned “At 60 miles an hour on a Missouri highway, a 16-year-old driver texts with a friend as a 17-year-old takes the wheel.” It’s a view from behind and to the right of the driver, showing the him using both hands to key in a text message while another hand reaches in from the passenger side to hold the wheel.

So, how did the photographer get that shot? Did he tell them what he wanted or hint at the result? And wasn’t that a dangerous thing to be letting a couple of teenagers do while he got the picture? My guess was that this was either (a) yet another New York Times credibility scandal, or (b) a file photo.

I emailed the photographer, Dan Gill, and he responded with an explanation:

The picture went with a story I worked on last fall. The story was about social issues at a St.Louis high school; boys and girls…My assignment was to hang out with them and make pictures of how they communicated and tried to meet girls.

When discussing the story with my assigning editor we both agreed it would be…easier and better to ride with them instead of driving separately. By riding with them we could see into their world easier. The subjects were minors, however, the parents were aware we were doing the story.

As we drove around the students soon played their music and forgot I was with them. I looked back through my “raw” take; all of the pictures made on an assignment and found him driving and texting throughout the drive. He said he was texting his “girls”, girls he was interested in. I continued to make pictures of him texting, it was within the scope of the story. At one point, we were driving down an inter belt highway and he continued to text. After a few words with the front passenger, the front passenger reached over and steered the truck.

This makes sense. The picture was being used as an illustration, not as documentation of a specific incident mentioned in the story, so it’s acceptable to use a file photo.

Gill also addresses the danger issue:

Was this dangerous? Yes. Were they doing it for me? No. Was this common practice for them? Is this something they had done before? These are good questions. As a journalist I am here to describe what I witness with pictures. I am not their parent.

Not everyone is happy about that. Daryl Lang at PDN Pulse also exchanged email with Gill about the story, and one of the commenters had this to say:

you are the kind of guy who would rather sit there taking pictures of an accident or some one’s house burning down rather than lend a hand or try to help people involved in the situation. the responce you gave when asked why you didnt say something to those kids or their parents shows your selfishness. if this world is to become a better place, it is certainly not going to be helped along by someone like you, dodging any responsibility toward others, as long as it benefits your needs.

The driver was 16-years old. Does anybody really think this was the first bit of bad driving Gill saw that night? If he had spoken up the first time the kid broke the speed limit or failed to signal a lane change, he never would have gotten the picture. And you know that if Gill hadn’t been there, they still would have done this, and no one would ever know. This way, we have pictures. We know something we didn’t know.

Gill went on:

After the evening was over, I looked through my pictures and picked out 12, three were from riding in the truck and two of those were of the texting/passenger driving scene. Two were published in the Times as part of the story.

Last week a photo editor called with questions about the texting photo. They were working on a story about cell phone use and driving for the Sunday paper and he thought the picture was important.

So, it was essentially a file photo.

As a photographer, I was curious about something. The dashboard has a washed-out blue look to it, but the needles stand out in bright orange. It looks a little unnatural, and I was wondering if it was just a trick of the color balancing or if the photo had been enhanced in some way so that we could see that, yes, the car really was doing 60 at the time. 

As for the color of the needles on the dashboard and the color balance; it’s tough to properly set white balance in the evening in a moving vehicle. The driver’s hand is in direct sunlight and is a little warm color due to the time of day and the angle of the sun. The passenger’s arm and the rest of the interior was in shade and is cast blue by the blue sky. My camera was set for a manual color balance at daylight or 5500 degrees Kelvin.

As I look at the original or “raw” unedited jpeg there is not much difference. I make pictures in the “JPEG FINE” setting; there is plenty of resolution and tonal information to satisfy both newspaper and magazine clients with them. I would rather catch a moment than wait for a RAW file to write to the memory card.

As for post-processing, I don’t do much. A photographer needs to nail his or her exposure and composition the first time…there is no second take in photojournalism.

 Dan Gill’s website is here. Great shots here, here, and here,

Random shots around the web:

*Update: As my coblogger Gary points out, the robot story has been revised to cover up the horror indicate that the robots only eat plant matter. This actually makes sense, as people have been using plants for fuel for thousands of years.

Hat tip: Lawyers, Guns and Money, Majikthise, Reason.

In my latest attempt to make blogging pay well enough to afford new camera equipment, I’ve started displaying Chitika search-targeted advertising. The cool thing about this is that all of you who read my blog regularly won’t be seeing any additional ads because of it.

When somebody out there clicks on a link to Windypundit in the result set from a search engine like Google, their browser sends the URL of the search page in the Referer header line of the HTTP request. The Chitika system parses each Referer URL and, if it’s from a search engine rather than a link from a fellow blogger, extracts the search terms and uses them to select a banner ad.

On the other hand, those of you who visit my page from your browser favorites or feed reader won’t have to see the ads. Neither will people who get here via a blogroll link or a link from a web post.

According to Chitika, studies have shown that regular visitors to a site are annoyed by intrusive ads and are far less likely to click on them than people who stumble across the site in a search engine. So limiting the ads this way should allow me to use much more blatant and intrusive ads to snare search visitors without degrading the experience of my beloved regular readers.

It will be cool if it works.