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On November 3rd, the Floyd Abrams Institute for Freedom of Expression will host a conference entitled Net Neutrality: From Debate to Policy Decisions. The conference will take place at the Century Association located at 7 West 43rd Street in New York City. The event starts with breakfast at 7:30 a.m. and ends promptly at 9:20 a.m. Here is a description:

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality. 

After several years of discussions in academia, industry, and policymaking circles, the issue of net neutrality has taken center stage in debates on U.S. media and telecommunications. In February, cable providers Comcast and Time-Warner announced their intent to merge into a single company. And this spring, the FCC solicited public input on its proposed Open Internet Rules, and FCC Chairman Tom Wheeler has stated that he expects to have enforceable rules in place by the end of 2014. Under the new rules, “behavior harmful to consumers or competition by limiting the openness to the Internet will not be permitted.” With these events as backdrop, the Abrams Institute at Yale Law School will host a panel discussion at the Century Club in New York, on the topic of net neutrality.

→ Panel speakers

• Susan Crawford, Professor of Law, Benjamin N. Cardozo School of Law, and author of Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age (Yale, 2013).
• Victor Pickard, Assistant Professor, Annenberg School for Communication, University of Pennsylvania, and author of America’s Battle for Media Democracy (Cambridge, 2014).
• Jan Rybnicek, Attorney Advisor, Federal Trade Commission
• Matthew Del Nero, Deputy Bureau Chief, Wireline Competition Bureau, Federal Communications Commission.

→ Registration

A fee of $35 per person will be charged to cover the cost of the continental breakfast. Go here to register. The registration deadline is Thursday, October 30th.

→ CLE Credit 

One and one half (1.5) CLE credit hours in Professional Practice (corporate) will be available for this program, which is transitional and non-transitional in nature. Preregistration is required for CLE credit.

* * * * 

→ Related Articles

• Christopher S. Yoo, “Wickard for the Internet? Network Neutrality after Verizon v. FCC,” Federal Communications Law Journal (2014, forthcoming)
• Adam Lamparello, “The Internet is the New Marketplace of Ideas: Why Riley v. California Supports Net Neutrality,” SSRN (Oct. 24, 2014)

→ Upcoming AALS Panel Discussion

• “Net Neutrality:  Where does the FCC go from here?” (Hat tip to Ruthann Robson)

Petition to Watch 

At its Conference on October 31, 2014, the Court will consider the following free speech petition:

“The Supreme Court of the John Roberts era gets one thing very right: It’s one of the most free-speech-protective courts in modern history. There is no purveyor of semi-pornographic crush videos, no maker of rape-aspiring violent video games, no homophobic funeral protester, no anti-abortion clinic counselor, and no filthy-rich campaign contribution–seeker whose rights and privileges will not be treated by the Court with the utmost reverence and solicitude.”

Later in the same essay, Lithwick adds:

“This brings us back to the First Amendment, seemingly the only right that truly counts anymore in America. Why has the constitutional right to be heard all but overmastered the right to vote or legally terminate a pregnancy? Maybe the court is still capable of hearing even as it loses the ability to see? Or maybe the powerful voices of Fred Phelps, Shaun McCutcheon, and Anthony Elonis—the creatures who rightly are allowed to say and do horrible things in the name of free speech—count for more than the hundreds and thousands of voiceless voters and abortion-seekers who are seemingly not even important enough to name?”

Three Replies

• Scott H. Greenfield, “Horse-Trading Constitutional Rights,” Simple Justice, Oct. 25, 2014
• Richard G. Kopf, “The evisceration of Dahlia Lithwick,” Hercules & The Umpire, Oct. 25, 2014
• William Baude, “Free speech vs. voting rights and abortion rights,” Volokh Conspiracy, Oct. 25, 2014

President of FIRE & Communications Director of the Council on American-Islamic Relations Debate Bill Maher’s planned commencement address at UC Berkeley

  → “Bastion of free speech, Cal Berkeley, petitioning to ban Bill Maher from speaking at graduation,” Twitchy Media, Oct. 28, 2014

 → Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE) and Ibrahim Hooper, the Communications Director of the Council on American-Islamic Relations, debate (see here)

Flaskback: Christopher Hitchens debates Ahmed Younis re Muhammad Cartoon Controversy (on YouTube)

Tribe on arguing 2 major First Amendment Cases

Over at SCOTUSblog, there is a video interview with Harvard Law Professor Laurence Tribe. In case you missed it, here is Tribe talking about two cases he argued: Richmond Newspapers, Inc. v. Virginia (1980) (public access to trials) and Larkin v. Grendel’s Den, Inc. (1982) (the First Amendment Establishment Clause and a church’s power to control a liquor license).  Check it out.

Article on Commercial Speech ruling of Grand Chamber of the European Court of Human Rights 

→The Article: Ronan Ó Fathaigh, “Political Advertising Bans and Freedom of Expression,” Greek Public Law Journal (2014 Forthcoming)

→The Abstract: “In Animal Defenders International v. United Kingdom (2013), the 17-judge Grand Chamber of the European Court of Human Rights ruled that the UK’s ban on political advertising on television, as applied to an animal rights organisation, did not violate freedom of expression. The Court divided nine votes to eight, with the majority opinion abandoning the Court’s previous ‘strict scrutiny’ review, and laying down a new doctrine for reviewing political advertising bans. This article, first, examines the role the composition of the Grand Chamber played in the outcome of the case. Second, questions the basis of the new doctrine of review. And third, criticises the majority’s treatment of precedent.”

→ See also Wikipedia here for a chart of freedom of speech by country.

New & Forthcoming Books

• Péter Molnár, editor, Free Speech and Censorship Around the Globe (CEU Press, Nov. 20, 2014)
• Rorie Spill Solberg & Eric N. Waltenburg, The Media, the Court, and the Misrepresentation: The New Myth of the Court (Routledge, Dec. 4, 2014)
•  Marcel Maussen & Ralph Grillo, editors, Regulation of Speech in Multicultural Societies (Routledge, March 2015)
• Robert J. Goldstein, “Little ‘Red Scares': Anti-Communism and Political Repression in the United States, 1921-1946 (May 5, 2015)
•  Chris W. Bonneau & Damon M. Can, Voters’ Verdicts: Citizens, Campaigns, and Institutions in State Supreme Court Elections  (University of Virginia Press, May 27, 2015)

Book Reviews

• Garrett Epps, “How the First Amendment applies to Jennifer Lawrence,” Columbia Journalism Review, Oct. 29, 2014
• Garry Wills, “How Lincoln Played the Press,” New York Review of Books (Nov. 6, 2014)

Nota Bene

• Frederick Schauer, “On the Distinction between Speech and Action,” SSRN (Oct. 24, 2014)
• Ruthann Robson, “Pennsylvania’s New Prisoner Speech Statute,” Constitutional Law Prof blog, Oct. 22, 2014 (new PA law here)
• Anders Walker, “A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution,” University of Colorado Law Review (forthcoming, 2014)

Scholarly Articles

• Sarah C. Haan, “The CEO and Hydraulics of Campaign Finance Reform,” Northwestern University Law Review (2014) (plus podcast interview here)
• Michael Kagan, “Speaker Discrimination: The Next Frontier of Free Speech,” Florida State University Law Review (forthcoming 2014)
• Phillip D. DiSanto, “Blurred Lines of Identity Crimes: Intersection of the First Amendment and Federal Identity Fraud,” Columbia Law Review (2014 forthcoming) (Student Note)

Volokh Watch

• “First Amendment vs. freedom of information law,” Volokh Conspiracy, Oct. 24, 2014
• “Falsely shouting ‘Ebola!’ on a crowded bus — the California criminal prohibition,” Volokh Conspiracy, Oct. 23, 2014

Quick Hits

• Lachlan Markay, “FEC Republicans Vow to Fight Regulations on Online Political Speech,” Washington Free Beacon, Oct. 28, 2014
• Catherine Sevcenko, “Campus free-speech zones are a right that Iowa State cannot restrict,” Iowa State Daily, Oct. 28, 2014
• Roger C. Memos, “Remembering the Committee for the First Amendment Flying to Washington to Support ‘Hollywood 19′,” Palm Desert Patch, Oct. 28, 2014
• Shayla Menville, “MSU reviewing free speech policies,” The Morehead News, Oct. 28, 2014
• Chip Gibbons, “Does Crying Terrorism Trump Free Speech?,” Truthout, Oct. 28, 2014
• Katherine Liu, “Can freedom of speech and inclusivity get along?,” The California Aggie, Oct. 28, 2014
• Andy Metzger, “Judge cites First Amendment in denying Falchuk’s debate order,” 22News, Oct. 27, 2014
• Amaka Uchegbu, “Conference brings together law and public health,” Yale Daily News, Oct. 20, 2014

Last FAN Column: #37 — “McCutcheon case produces flood of scholarly commentary — 41 works!“

Next FAN Column: #39 — Wednesday, November 5, 2014

by Kevin Jon Heller

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:

The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.

Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.

Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.

The Utrecht Journal of International and European Union Law invites submissions for a special edition on Privacy under International and European Law. The submission deadline is Sept. 30, 2014. See Utrecht Journal Call for Papers – Privacy and International Law. With information gathering and sharing techniques becoming ever more advanced, States are being forced to […]

Your Love (aka “The Wedding Mix”) by Soul-Sides.Com/O. Wang on Mixcloud

I’ve made mixes that I might disavow under pressure. I’ve definitely made mixes where I wish I could go back and revise it (in fact, I’ve done that). But with this, “the wedding mix,” I really feel like I nailed it. That’s not a statement of ego (well, maybe a little) as much of an expression of satisfaction in feeling like I created something that I can’t improve on. It’s great “as is.”

The backstory: I was commissioned to make this mix for a couple (Elizabeth and Jeff) whose wedding I DJed.¹ They wanted to press up CDs as a wedding favor and they gave me a want list of different songs and I was allowed to fill in the rest. Their requests made for a useful starting point, creating a basic set of posts upon which I could build everything else.

The concept was simple: put together an hour or so of love songs. They didn’t have to be ballads (which meant I had a range of tempos to play with) and they didn’t have to be necessarily old or new or confined to a single genre, though obviously, soul/funk factored in heavily. The real challenge wasn’t so much in choosing which songs to use but rather, lay in what sequence to put them in. My favorite parts of this mix come with the organic shift from one song that seems perfectly matched to flow into another.

Hope you all enjoy it as much as I still do.

---

If I’m going to be really honest, the only thing I might change with the song would’ve been this: the first track. Thinking back now, the main reason why I used “Your Love” by The Styles of Bobby Day was because I had just gotten it in and thought it was a great 7″. It is a great 7″ – love how it’s a ballad with a funky breakbeat – but I just don’t think it has the right kind of “first song” impact. C’est la vie.

I have no regrets using Stevie Wonder’s ” Hey Love,” however. If this isn’t my absolutely favorite Wonder song, it’s at least in the top 3 and it’s one of those tunes that I never, ever tired of hearing. Blending it in with De La Soul’s “Bitties In the BK Lounge” may have been a bit off-concept but honestly…I always wanted to put that blend on. So there.

Do I need to really explain why I put on Linda Lyndell’s “What a Man”? Or following that with Freddie Scott’s “Got What I Need”? The Biz Markie/Pharcyde blend of “Just a Friend Passin’ Me By” was something I whipped together on a whim a few years back and it seemed apropos to drop that in too. From there, I came in with “Between the Sheets” by the Isley Bros. (though I realize, now, I could have used Biggie as a bridge, oh well).

From there, things take a left-turn into “Be My Lady” by the Dynamic Tints (Twinight in the hizzouse); I put this mix together around the time that Numero dropped that massive Twinight anthology so I had this song on the brain. The Brothers of Soul’s “A Lifetime” was my intro to the band, a longtime favorite, and it felt great to finally slip it into a mix somewhere. My decision to use “I Choose You” by Willie Hutch was influenced by DJ Phatrick’s wedding, where I heard them play this and it seemed like a great fit for a wedding mix. Teddy Pendergrass’s great “Love TKO” seemed to blend nicely out of that and why not go from there into Ahmad’s “Back In The Day”? The Love Unlimited’s “If You Want Me” is a slept-on Barry White-produced track (though Ras Kass knew what was up) and I feel like I hit a good groove here by stringing both Carl Carlton’s “This Feeling’s Rated X-Tra” and Eddie Kendrick’s “If You Let Me from it.

Another left-field track follows: Marcia Aitken’s cover of Alton Ellis’s “I’m Still In Love With You and I’m not sure what made me think to work in Lauryn Hill’s “Can’t Take My Eyes Off Of You” (might have been my client’s request). The segue into Bobby Caldwell’s “Open Your Eyes” is a bit forced but as many a DJ has learned, that song blends beautifully with Common’s “The Light.” Latryx’s “Lady Don’t Tek No” was a client request, as was Mayer Hawthorne’s cover of The Festivals’ “You Got The Makings of a Lover.” The arrangement on that song made me think of Theron and Darrell’s rare-as-hen’s-teeth b-side cut, “I Was Made To Love Her” (if I had a spare $800, I’d cop one for sure).

Pamoja’s “Ooh Baby” isn’t a cover of Smokey and the Miracles but a fantastic, sweet soul/crossover track in its own right. Right about here, the mix hits perhaps my favorite point since Ruby Andrews’s “You Made a Believer” drops in perfectly out of Pamoja and I felt the same way about slipping in the Prince of Ballard’s excellent remix of Bobby Reed’s “The Time Is Right For Love.”

Coming out of those three is The Summits’ “It Takes Two” (a Wash. D.C. cut if I recall) and then I dip back to the early ’90s with Zhane’s “Hey Mr. DJ” before blending that with its sample source: Michael Wycoff’s “Looking Up to You.” Don Julian and the Larks’ cover Al Wilson’s “Show and Tell” after that, followed by a stone-cold classic: Doris Troy’s “Just One Look.” Joe Bataan (covering Smokey) croons in after, with his rendition of “More Love,” followed by Wee’s slinky “I Luv You” and then Michael Jackson’s classic “Rock With You.”

From here, the mix drops into the slow jam closing set, beginning with Tammi Terrell’s previously unreleased “All I Do Is Think About You,” followed by a client request: Penny and the Quarters’ “You and Me.” I’ve always loved Margie Joseph’s cover of “Let’s Stay Together,” and staying in that theme, I also dropped in the Emotions’ cover of the Charmels’ “As Long As I Have You.” Everything comes to a close on Bettye Swann’s “Make Me Yours,” a client request that was 110% the perfect song to close with.

AMERICAN SOCIETY OF COMPARATIVE LAW

YOUNGER COMPARATIVISTS COMMITTEE

WORKSHOP ON COMPARATIVE BUSINESS AND FINANCIAL LAW

The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions for a workshop on comparative business and financial law to be held on November 7-8, 2014 at UC Davis School of Law in Davis, California. The purpose of the workshop is to highlight, develop, and promote the scholarship of new and younger comparativists in accounting, banking, bankruptcy, corporations, commercial law, economics, finance, and securities.

Up to thirty papers will be chosen from those submitted for presentation at the workshop pursuant to this Call for Papers. The workshop audience will include invited young scholars, faculty from UC Davis School of Law and Graduate School of Management, faculty from other institutions, and invited guests.

Submissions will be accepted from scholars who have held a full-time academic appointment for no more than ten years as of June 30, 2014.

Submission Instructions

To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 1000 words before July 1, 2014, to the following address: afraafsharipour@ucdavis.edu.

Please title the email “YCC Business Law Workshop – [Name].” Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the workshop. Abstracts should include a cover page with the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar.

Scholars may make only one submission. Both individual and co-authored submissions will be accepted. For co-authored submissions, at least one author must qualify as eligible younger comparativists.

Notification

Invitees will be selected via a blind review by a workshop selection committee. Authors of the submissions selected for the workshop will be notified no later than August 15, 2014. There is no cost to register for the workshop but participants are responsible for securing their own funding for travel, lodging and other incidental expenses. A limited number of travel stipends may be awarded to scholars from ASCL member schools who demonstrate financial need. If you would like to be considered for a travel stipend, please make that request in your submission.

Final papers for the workshop will be due no later than October 17, 2014.

From the Conglomerate Blog

The American Society of International Law calls for submissions of scholarly paper proposals for the ASIL Research Forum to be held during the Society's Midyear Meeting in Chicago November 6-8, 2014.

The Research Forum, a Society initiative introduced in 2011, aims to provide a setting for the presentation and focused discussion of works-in-progress. All ASIL members are invited to attend the Forum, whether presenting a paper or not.

Papers can be on any topic related to international and transnational law and should be unpublished (for purposes of the call, publication to an electronic database such as SSRN is not considered publication). Interdisciplinary projects, empirical studies, and jointly authored papers are welcome.

Proposals should be submitted online (use form below) by June 8, 2014. Interested paper-givers should submit an abstract (no more than 1000 words in length) summarizing the scholarly paper to be presented at the Forum.

Review of the abstracts will be blind. Notifications of acceptance will go out in mid-July.

Papers will be assembled into panels. The organizers welcome volunteers to serve as discussants who will comment on the papers. Please e-mail submissions@asil.org if you are interested in serving as a discussant. All authors of accepted papers will be required to submit a draft paper four weeks before the Research Forum. Drafts will be posted on a web page accessible exclusively to Forum participants.

Karen Alter, Northwestern University
Katerina Linos, ASIL Academic Partner University of California - Berkeley School of Law
2014 Research Forum Co-Chairs

Link

Call for Papers
Young Scholars Workshop on International Law
XI Edition
Africa 2013 – Was There Something Missed in the Decolonization Process?
The International Law Perspective
Trento, 6-7 December 2013

The Young Scholars Workshop on International Law is a periodic initiative taking place in Italy since 2003. It is aimed at providing a critical discussion forum in which early career academics, doctoral students, and young legal professionals are encouraged to present their research on specific topics of international law. The XI edition of the Workshop will be hosted by the Faculty of Law of the University of Trento.

Theme for the 2013 Workshop

The decolonization of Africa has been praised (including by several African States) as a success story of the United Nations. Nevertheless, recent phenomena of relevance for international law may cast shadows over this suggestion, especially if the decolonization process is considered from a broader economic, cultural and institutional perspective. More than half a century from the adoption of the fundamental General Assembly resolutions on self-determination and on the 50th anniversary of the establishment of the OAU, the call for papers intends to address a fundamental research question: Has formal independence released African States from patterns of dominance by former colonial powers, other States, and transnational corporations?

Applicants are welcome to submit unpublished proposals that stand up in favor or against the research question by exploring, from an international law perspective, one or more of the following thematic areas:

a) The theory and practice of the use of force in Africa

− military coups
− intervention in civil wars
− achievements and failures of peacekeeping missions
− boundary and territorial disputes
− the role of regional organizations

b) Economic and social self-determination in Africa

− economic conditionalities and the role of international financial institutions
− achievements and failures of regional economic integration
− issues related to the exploitation of natural resources
− environmental protection and sustainable development
− issues concerning development cooperation (e.g. EU/USA/China-Africa relations)
− the participation of African States in international economic organizations and in their systems of dispute resolution
− problems related to foreign investments

c) Human rights and criminal justice: the African viewpoint

− international criminal justice v. traditional models of reconciliation
− achievements and failures of international criminal justice
− the specificity of the regional system of human rights protection
− gender and cultural issues
− indigenous rights

d) The circulation of legal and institutional models: Africa as champion or recipient?

− models of regional integration
− the legal regime applicable to the activities of transnational corporations (public and private international law perspectives)
− harmonization of private international law, business law and commercial arbitration

Submissions should include a short abstract in English (max. 600 words), the author’s affiliation and full contact information. They will be selected through a competitive process based on scholarly merit and originality. Subject to peer review and editorial discretion, selected submissions may be considered for publication in a leading journal of international law. The organization will cover accommodation costs for successful applicants.

Applications should be submitted in Word format to Marco Pertile (marco.pertile@unitn.it) and Julinda Beqiraj (julinda.beqiraj@unitn.it).

Deadline for abstract submission: 22 September

Notification to successful applicants: 1 October 2013

Deadline for submission of draft papers: 17 November 2013

From International Law Reporter

I tried to rearrange my face into something that read "Here I am content in my firmly drawn boundaries but possibly interested in reconciling if you agree to my terms." The fight that had finally broken us all the way up was still fresh. We were only a week past the night when he left the house, moved out. Permanently. I had a speech prepared, my terms drawn up, game face on.

"I have some things to say," I said.

"First, let me tell you something," he replied. "Because you're going to be mad."

He had been staying in a cheap motel, the kind that doesn't try to be anything but—whose cheapness is its primary selling point. On some level I knew what he was about to tell me, because I, the person who could tell you the balance to the dollar on any one of my financial accounts on any given day, who logged in and looked at the numbers and checked balances as routinely as my morning coffee, had avoided looking at that particular credit card balance that week. He wouldn't, I told myself. He would never mess with my money. He KNOWS how I am with my money.

"I know how you are with money, so I wanted to tell you: I've been paying for the hotel with the card," he said. I saw red, and my carefully composed face contorted. He was a cardholder on one of my accounts, it's not like he had done something illegal. Just something that got me—a person who equates financial stability with freedom, with possibility, with essential self-reliance—where he knew it would count. You can trample on my heart, I guess, but don’t you dare mess with my credit score.

"I'll pay you the money," he said, in a rush. "I would never take your money."

“I can kiss that money goodbye,” I thought, all reconciliatory measures draining away. Funny that this was the thing that finally made me angry—funny that he did know me so well. "But how are you going to pay me back if you don't have that money in the first place?" I asked.

"I'm doing a tanda," he said. "When I get the tanda I will give it all to you."

The first time I ever heard of tanda was from him, and I thought it was a pyramid scheme. We'd been planning a vacation, and I was worried about funds. "Let's put it on the card, and pay a little each month," he suggested. I protested, citing the interest. "Let’s save a little each week, and pay in cash," I countered.

"What about a tanda?" he suggested.

"A...what?"

"Tanda."

He explained: You get a group of people together, with one person as the head, the organizer—for the ones he was in, it was the head chef of the restaurant where he worked. Say you have 10 people. You put the numbers one through 10 in a raffle, have everyone draw a number; each number represents a week. When your number comes up, when it’s your week, everyone pays you a set amount of money, $100, say. The other weeks, you pay $100 to the designated person. You take turns receiving the money, and when you’re not on the receiving end, you’re paying in.

"Oh, so you just give money to the next person on the list, and then money comes back to you? THAT’S A PYRAMID SCHEME," I scoffed. "Haven’t you ever seen that episode of every sitcom ever, where they call it a trapezoid scheme and pretend like it’s not a pyramid scheme?" He hadn’t. "This is like that. Just because you call it a tanda doesn’t make it not a pyramid scheme."

It turns out, it’s not a pyramid, nor a trapezoid. It’s a circle.

Back in 2004, a group of anthropology students at the University of California, Irvine produced a paper on tandas as part of an exhibit on the anthropology of money. The official term for tanda is a "rotating credit association," theorized to have begun in rural areas, possibly adopted from Chinese immigrants to Mexico. There are equivalents in other cultures, and often it’s a practice utilized most frequently by women. It is, the authors (Rosalba Gama, Delma Medrano and Luis Medrano) wrote, “a monetary practice that we, as Chicanos, have grown up knowing but never really understood in any depth, except that our parents or other relatives participated in them.” Like me, they seemed enamored by the idea of this inherent trust in the tanda process.

"Confianza, or trust, is the key aspect of the tanda and is what allows this type of credit association to exists within the community," they wrote.

My exes have introduced me to now-favorite bands, previously-unknown-to-me writers, oyster omelets, and to amazing friends with whom I remained close. In this particular case, I got a fairly thorough intercultural education. Despite having lived in a city with a sizable Hispanic population for much of my adult life, dating a Mexican who was part of that tight-knit community exposed me to a side of my home that I hadn’t even realized existed.

Some of it was already vaguely familiar, but suddenly I was learning how to cook chicharron and make micheladas, watching him sing Juan Gabriel at karaoke and seeing his sisters cry over Jeni Rivera’s death, and picking up stray pieces of Spanish slang and winging away to the outskirts of Mexico City for Christmas. And learning about tanda—about a communal trust that I couldn’t, and still don’t, comprehend.

Even after I had gotten over my initial reaction to tanda, I couldn’t suspend my disbelief that people would instill that much confidence in each other, with regard to their money. After we moved in together, my boyfriend and I never combined finances in any significant way, but I did get him a card on one of my credit card accounts, in order to help accumulate airline miles and build his credit. He usually bought gas or groceries and handed over a cash reimbursement within a few weeks. I usually squirmed a bit in the meantime. He always paid me back.

I sat down with him and the regular head of his tanda, once, to try to understand the idea of a revolving credit association. At the time, the three of us—my boyfriend, the chef, and I—all worked in the same restaurant.

In Mexico, it’s how it’s always been done, they said. Everyone knows what it is. Why not just put your money in a bank? I asked. “Why not just do a tanda?” they said, where you’re beholden to other people and can’t avoid handing over the money, when others are relying on you. Can women be in a tanda? “Of course!” Gringa women? They remembered one a while back—“Why don’t you join the next one?” they said. “Anybody can join. Everybody can feel happy in ten weeks,” the chef, the tanda’s head, told me. People have a favorite position in the cycle, usually; the busboy likes to take two numbers, they said, the last two. The head of the tanda, who has to pony up if someone can’t make his or her payments, automatically gets the first number or first choice of which number he’d like. Sometimes people buy an earlier number, pay to swap.

But what if someone is not trustworthy? They shrugged. “Then they get the last numbers. Or they don’t get to be in the next one.” It was making sense, but I still couldn’t wrap my head around it. Haven’t you ever known anyone to get screwed in this process? Oh sure, they told me. Like that girl who walked into that kitchen they used to work in, walked in and paraded an exposed thong and walked out with several hundred dollars collected from the smitten cooks under the auspices of starting a tanda, never to be seen again. They chuckled at the memory.

He had not only paid up front, in advance, for the motel room for several weeks, he had used the card to make a sizeable cash withdrawal from his bank, incurring a fee. Fuming, I tallied the total and texted it to him. The tanda would be a little short, he said, but he’d make sure I got every penny, eventually. I had called the credit card company after our first conversation, late at night. “Can you get the card back that you want to cancel?” the customer service rep asked. “No,” I said. She was cool and professional, and told me they’d issue me a new card.

Every text from him over the next few weeks was met with the same embittered response, from me: “why don’t you pay me my money?” It was close to a grand, in all. I told him if I had to spend $800 in claims court to try to get it back and only recoup $200, I would. I imagined him rolling his eyes.

A month later he handed me an envelope, as we stood in the middle of the street next to his idling car. “Count it,” he said. It was $800, cash. I already knew I would not pursue the rest, I just wanted to cut all of our remaining ties. The look on his face said that he did, too—that he couldn’t believe I hadn’t trusted that he would pay me back.

Lynn Vollbrecht is a writer and editor in a committed relationship with her credit score. Photo: 1950s Unlimited

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Peter van Buren writes at Tomdispatch:

As a State Department whistleblower, I think a lot about Edward Snowden. I can’t help myself. My friendships with other whistleblowers like Tom Drake, Jesslyn Radack, Daniel Ellsberg, and John Kiriakou lead me to believe that, however different we may be as individuals, our acts have given us much in common. I suspect that includes Snowden, though I’ve never had the slightest contact with him. Still, as he took his long flight from Hong Kong into the unknown, I couldn’t help feeling that he was thinking some of my thoughts, or I his. Here are five things that I imagine were on his mind (they would have been on mine) as that plane took off.

I Am Afraid

Whistleblowers act on conscience because they encounter something so horrifying, unconstitutional, wasteful, fraudulent, or mismanaged that they are overcome by the need to speak out. There is always a calculus of pain and gain (for others, if not oneself), but first thoughts are about what you’ve uncovered, the information you feel compelled to bring into the light, rather than your own circumstances.

In my case, I was ignorant of what would happen once I blew the whistle. I didn’t expect the Department of State to attack me. National Security Agency (NSA) whistleblower Tom Drake was similarly unprepared. He initially believed that, when the FBI first came to interview him, they were on his side, eager to learn more about the criminal acts he had uncovered at the NSA. Snowden was different in this. He had the example of Bradley Manning and others to learn from. He clearly never doubted that the full weight of the U.S. government would fall on him.

He knew what to fear. He knew the Obama administration was determined to make any whistleblower pay, likely via yet another prosecution under the Espionage Act (with the potential for the death penalty). He also knew what his government had done since 9/11 without compunction: it had tortured and abused people to crush them; it had forced those it considered enemies into years of indefinite imprisonment, creating isolation cells for suspected terrorists and even a pre-trial whistleblower. It had murdered Americans without due process, and then, of course, there were the extraordinary renditions in which U.S. agents kidnapped perceived enemies and delivered them into the archipelago of post-9/11 horrors.

Sooner or later, if you’re a whistleblower, you get scared. It’s only human. On that flight, I imagine that Edward Snowden, for all his youthful confidence and bravado, was afraid. Would the Russians turn him over to Washington as part of some secret deal, maybe the sort of spy-for-spy trade that would harken back to the Cold War era?

Even if he made it out of Moscow, he couldn’t have doubted that the full resources of the NSA and other parts of the U.S. government would be turned on him. How many CIA case officers and Joint Special Operations Command types did the U.S. have undercover in Ecuador? After all, the dirty tricks had already started. The partner of Guardian journalist Glenn Greenwald, who broke Snowden’s story, had his laptop stolen from their residence in Brazil.  This happened only after Greenwald told him via Skype that he would send him an encrypted copy of Snowden’s documents. 

In such moments, you try to push back the sense of paranoia that creeps into your mind when you realize that you are being monitored, followed, watched. It’s uncomfortable, scary. You have to wonder what your fate will be once the media grows bored with your story, or when whatever government has given you asylum changes its stance vis-a-vis the U.S. When the knock comes at the door, who will protect you? So who can doubt that fear made the journey with him?

Could I Go Back to the U.S.?

Amnesty International was on target when it stated that Snowden “could be at risk of ill-treatment if extradited to the U.S.” As if to prove them right, months, if not years, before any trial, Speaker of the House John Boehner called Snowden a “traitor”; Congressman Peter King called him a “defector”; and others were already demanding his execution. If that wasn’t enough, the abuse Bradley Manning suffered had already convinced Snowden that a fair trial and humane treatment were impossible dreams for a whistleblower of his sort. (He specifically cited Manning in his appeal for asylum to Ecuador.)

So on that flight he knew — as he had long known — that the natural desire to go back to the U.S. and make a stand was beyond foolhardy. Yet the urge to return to the country he loves must have been traveling with him, too. Perhaps on that flight he found himself grimly amused that, after years of running roughshod over international standards — Abu Ghraib, Guantanamo, “enhanced interrogation techniques,” “black sites” — the U.S. had the nerve to chide Hong Kong, China, and Russia for not following the rule of law. He certainly knew that his own revelations about massive NSA cyber-spying on Hong Kong and China had deeply embarrassed the Obama administration. It had, after all, been blistering the Chinese for hacking into U.S. military and corporate computers. He himself had ensured that the Chinese wouldn’t turn him over, in the same way that history — decades of U.S. bullying in Latin America — ensured that he had a shot at a future in someplace like in Ecuador.

If he knew his extradition history, Snowden might also have thought about another time when Washington squirmed as a man it wanted left a friendly country for asylum. In 2004, the U.S. had chess great Bobby Fischer detained in Japan on charges that he had attended a 1992 match in Yugoslavia in violation of a U.S. trade ban. Others suggested that the real reason Washington was after him may have been Fischer’s post 9/11 statement: “It’s time to finish off the U.S. once and for all. This just shows what comes around, goes around.”

Fischer’s American passport was revoked just like Snowden’s. In the fashion of Hong Kong more recently, the Japanese released Fischer on an immigration technicality, and he flew to Iceland where he was granted citizenship. I was a diplomat in Japan at the time, and had a ringside seat for the negotiations. They must have paralleled what went on in Hong Kong: the appeals to treaty and international law; U.S. diplomats sounding like so many disappointed parents scolding a child; the pale hopes expressed for future good relations; the search for a sympathetic ear among local law enforcement agencies, immigration, and the foreign ministry — anybody, in fact — and finally, the desperate attempt to call in personal favors to buy more time for whatever Plan B might be. As with Snowden, in the end the U.S. stood by helplessly as its prey flew off.

How Will I Live Now?

At some point every whistleblower realizes his life will never be the same. For me, that meant losing my job of 24 years at the State Department. For Tom Drake, it meant financial ruin as the government tried to bankrupt him through endless litigation. For CIA agent John Kiriakou, it might have been the moment when, convicted of disclosing classified information to journalists, he said goodbye to his family and walked into Loretto Federal Correctional Institution.

Snowden could not have avoided anxiety about the future. Wherever he ended up, how would he live? What work would he do? He’s just turned 30 and faces, at best, a lifetime in some foreign country he’s never seen where he might not know the language or much of anything else.

So fear again, in a slightly different form. It never leaves you, not when you take on the world’s most powerful government. Would he ever see his family and friends again? Would they disown him, fearful of retaliation or affected by the smear campaign against him? Would his parents/best friend/girlfriend come to believe he was a traitor, a defector, a dangerous man? All whistleblowers find their personal relationships strained. Marriages are tested or broken, friends lost, children teased or bullied at school. I know from my own whistleblower’s journey that it’s an ugly penalty — encouraged by a government scorned — for acting on conscience.

If he had a deeper sense of history, Snowden might have found humor in the way the Obama administration chose to revoke his passport just before he left Hong Kong. After all, in the Cold War years, it was the “evil empire,” the Soviet Union, which was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West.

To deepen the irony of the moment, perhaps he was able to Google up the 2009-2011 figures on U.S. grants of asylum: 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members. Maybe he learned that, despite the tantrums U.S. officials threw regarding the international obligation of Russia to extradite him, the U.S. has recently refused Russian requests to extradite two of its citizens.

Snowden might have mused over then-candidate Obama’s explicit pledge to protect whistleblowers. “Often the best source of information about waste, fraud, and abuse in government,” Obama then said, “is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism… should be encouraged rather than stifled as they have been during the Bush administration.” It might have been Snowden’s only laugh of the flight.

I Don’t Hate the U.S., I Love It Deeply, But Believe It Has Strayed

On that flight, Snowden took his love of America with him. It’s what all of us whistleblowers share: a love of country, if not necessarily its government, its military, or its intelligence services. We care what happens to us the people. That may have been his anchor on his unsettling journey. It would have been mine.

Remember, if we were working in the government in the first place, like every federal employee, soldier, and many government contractors, we had taken an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” We didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, “the people.”

In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Barack Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower.

Some pundits claim that Snowden deserves nothing, because he didn’t go through “proper channels.” They couldn’t be more wrong and Snowden knows it. As with many of us whistleblowers facing a government acting in opposition to the Constitution, Snowden went through the channels that matter most: he used a free press to speak directly to his real boss, the American people.

In that sense, whatever the fear and anxiety about his life and his future, he must have felt easy with his actions. He had not betrayed his country, he had sought to inform it.

As with Bradley Manning, Obama administration officials are now claiming that Snowden has blood on his hands. Typically, Secretary of State John Kerry claimed: “People may die as a consequence to what this man did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.” Snowden had heard the same slurs circling around Bradley Manning: that he had put people in danger. After the wars in Iraq and Afghanistan, not to speak of the war on terror, there is irony too obvious to dwell upon in such charges.

Flying into the unknown, Snowden had to feel secure in having risked everything to show Americans how their government and the NSA bend or break laws to collect information on us in direct conflict with the Fourth Amendment’s protections. Amnesty International pointed out that blood-on-hands wasn’t at issue. “It appears he is being charged primarily for revealing U.S. and other governments’ unlawful actions that violate human rights.” Those whispers of support are something to take into the dark with you.

I Believe in Things Bigger Than Myself

Some of the charges against Snowden would make anyone pause: that, for instance, he did what he did for the thrill of publicity, out of narcissism, or for his own selfish reasons. To any of the members of the post-9/11 club of whistleblowers, the idea that we acted primarily for our own benefit has a theater of the absurd quality to it. Having been there, the negative sentiments expressed do not read or ring true.

Snowden himself laughed off the notion that he had acted for his own benefit. If he had wanted money, any number of foreign governments would have paid handsomely for the information he handed out to journalists for free and he would never have had to embark on that plane flight from Hong Kong. (No one ever called Aldrich Ames a whistleblower.) If he wanted fame, there were potential book contracts and film deals to be had.

No, it was conscience. I wouldn’t be surprised if somewhere along the line Snowden had read the Declaration of the Nuremberg War Crimes Tribunal: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

Edward Snowden undoubtedly took comfort knowing that a growing group of Americans are outraged enough to resist a government turning against its own people. His thoughts were mirrored by Julian Assange, who said, “In the Obama administration’s attempt to crush these young whistleblowers with espionage charges, the U.S. government is taking on a generation, a young generation of people who find the mass violation of the rights of privacy and open process unacceptable. In taking on the generation, the Obama administration can only lose.” Snowden surely hoped President Obama would ask himself why he has pursued more than double the number of Espionage Act cases of all his presidential predecessors combined, and why almost all of those prosecutions failed.

On that flight, Edward Snowden must have reflected on what he had lost, including the high salary, the sweet life in Hawaii and Switzerland, the personal relationships, and the excitement of being on the inside, as well as the coolness of knowing tomorrow’s news today.  He has already lost much that matters in an individual life, but not everything that matters. Sometimes — and any whistleblower comes to know this in a deep way — you have to believe that something other, more, deeper, better than yourself matters.  You have to believe that one courageous act of conscience might make a difference in an America gone astray or simply that, matter or not, you did the right thing for your country.

Peter Van Buren blew the whistle on State Department waste and mismanagement in his book We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A TomDispatch regular, he writes about current events at his blog, We Meant Well. Van Buren’s next book, Ghosts of Tom Joad, A Story of the #99Percent, is due out in March 2014. 

Copyright 2013 Peter Van Buren

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Mirrored from Tomdispatch.com

The privacy scandal of the week involves Bloomberg terminals, reporters, and Wall Street traders. It started making the rounds of the financial press in the last couple of days and today reached the New York Times, which led its story by declaring that a “shudder went through Wall Street” in response to the revelations. But as with many of the periodic Facebook privacy scandals, this one is only surprising if you haven’t been paying attention. And it distracts the press and the public from more serious matters.

The story, in a nutshell: a Bloomberg terminal like the one in the picture sits on every trading desk. It is the central platform for managing a constant stream of information about market activity, financial news, economic data, and much more. By making this very expensive equipment a necessity, Michael Bloomberg (now New York’s mayor, of course) built a multibillion-dollar empire and made himself fabulously wealthy.

From the beginning, company employees have been able to look up individual Bloomberg subscribers and scrutinize their most recent activity in the system. That may make some sense for sales and technical personnel (although even then it probably ought to have been more anonymized than it seems to have been). Unfortunately, that access also extended to journalists at the many news outlets that have been added to the Bloomberg corporate family over the years. And these reporters appear to have mined that data routinely for tidbits that might have helped with their stories.

Don’t get me wrong, this is not an example of good privacy practices. But it ain’t exactly the allegations of pervasive bribery, eavesdropping, and hacking by journalists in the employ of Rupert Murdoch. Quartz has a pretty good explanation of the data that was available. Primarily, it boils down to the last time a person logged in, the “functions” used (essentially, what general categories of information services were accessed, such as reports of corporate bond trades), and the transcript of any online customer service chats. Crucially, Quartz notes, “Employees can see how many times each function was used but not further details, like which company’s bonds were being researched.” In other words, a lot of it resembles information that many web sites, including news sites, can already glean about most of their customers, particularly those who are logged in. At most, Bloomberg journalists might have obtained some slight lead that would send them on the hunt for more solid information, much as a tip from a source might. In the incident that brought the practice to light, for example, a reporter surmised that a Goldman Sachs partner might have left the firm because he stopped using his Bloomberg terminal.

So what makes this story the source of “shudders” on Wall Street? Not really the magnitude of the privacy invasion, I would argue, but a lot of secondary atmospheric factors that help contribute to the making of a good newspaper story and, thus, a privacy scare. For one thing, as in kerfuffles about Facebook or Google, we have big names (not just Bloomberg, but also the complaining victims who include employees at Goldman Sachs, JPMorganChase, and possibly even the Federal Reserve). We have a ubiquitous technology that everyone has come to rely on, at least within the world of finance, which adds a nice pinch of helplessness to the narrative. We have those terminals, physical presences in the center of the work day, that perhaps can seem a touch more sinister than virtual data mining. Finally, and probably most importantly, we have the Wall Street obsession with information — with keeping your own secrets while ferreting out every bit of information that could affect the price of anything. Ironically, it’s the very same obsession that made the Bloomberg terminal a necessity in the first place. And it isn’t really about privacy in the conventional sense, but about control and competitive advantage.

There are real privacy threats when companies or the government have access to the information we read. Neil Richards has written eloquently and extensively (most recently in this Georgetown Law Journal piece) about the importance of intellectual privacy and its fragility in a world where DRM, targeted advertising, social media, and subscriber analytics all push against the presumptive solitude of browsing and reading. Others, including me, have chimed in. But the genuine threat to intellectual privacy from the Bloomberg blooper seems quite small to me. It’s like somebody knowing you used a library card but not what books you checked out. The real problem with these teapot tempests is their capacity to direct attention to the wrong issues. There is a finite amount of attention for privacy, and I hate to see it wasted on this incident — or on the phantom threat of employers supposedly demanding applicants’ Facebook passwords despite the nearly total lack of evidence that they do.

Bloomberg LP CEO Dan Doctoroff has admitted the company’s mistake, revoked journalists’ access to the data, and hired a new chief data security officer to boot. Speculation about this incident as a real threat to the company appears overblown. Alas, the prospect that such a minor scandal might cause any reevaluation of more serious intellectual privacy concerns seems even more remote.

Photo Credit: Jack the Scribbler, from Flickr, under CC BY-NC-SA 2.0 license.

When NYPD Chief Ray Kelly said "privacy was off the table" following the Boston bombing, we all knew this was a one-way "exchange." It was always going to be average citizens losing out on their privacy. The NYPD would remain unaffected and continue to operate the way it has for years: behind the thin thick blue line of opacity.

Salon's CJ Ciaramella takes a detailed look at the NYPD's track record on Freedom of Information requests. The results are unsurprising. The public entities that demand the most from their constituents are often the most reluctant to give anything back.

The city’s Public Advocate Bill de Blasio, who is running for mayor, recently released a report asserting that a third of all Freedom of Information records requests to the police department were ignored. The numbers are no surprise to journalists who cover the department, such as Leonard Levitt, a veteran cops reporter who now writes at NYPD Confidential.

“All I can tell you is that the NYPD does whatever it wants to regarding FOI requests,” Levitt said. “Which means they never turn anything over, at least not to me. The only time they did respond was after I got the NY Civil Liberties Union involved.”

Levitt's case isn't unique. Others have run into the same officious stonewalling and found it often takes a lawsuit (or the threat of one) to shake anything loose. All Levitt was looking for was Ray Kelly's daily calendar. The department cited "security reasons" when rejecting his request. By this logic, protecting Ray Kelly is more important than protecting the President of the United States, whose calendar is public.

What isn't rejected outright is simply ignored. Those making the requests are left to decide whether the requested information is worth the time and expense of a lawsuit. The NYCLU has found itself in court time and time again in attempts to pry info loose from the NYPD's grip.

Ciaramella had his own experience with the NYPD's FOI recalcitrance when he sought access to gun discharge reports that might shed some light on the "hail of gunfire" unleashed by the NYPD in the course of bringing down the Empire State Building shooter.

Back in October 2012, this reporter submitted a public records request for the discharge reports filed by NYPD officers over the previous year.

I filed the public records request on Oct. 1. And then waited. On Jan. 11, I received this response:

In regard to your request, for all weapons discharge reports filled [sic] by officers between January 1, 2012 and September 26, 2012, I must deny access to these records on the basis of Public Officers Law section 87 (2)(g) and 87 (2)(e) as such records/information, if disclosed would reveal criminal investigative techniques or procedures, and or are intra-agency materials. Furthermore, these records are also exempt from disclosure as these records on the basis of Public Officers Law section 87 (2)(e) and Public Officers Law 87 (2)(a) in that such records consist of personell records of a Police Officer and are therefore exempt from disclosure under the provisions of Civil Rights Law section 50-a.

Now, stop and consider this for a second. The NYPD said the public interest of how, when and why its officers use deadly force against the citizens it’s sworn to protect is outweighed by the need to protect the privacy of those same officers. Not only that, the public interest was outweighed by the need to protect its investigative techniques.

This is par for the course and not unique to the NYPD. Police forces all over the nation (and the word, for that matter) are notorious for protecting their own. This insular attitude tends to result in the sort of ridiculous arguments detailed above. Protecting officers from public scrutiny always outweighs the public interest because it's the "home team" making the call.

But this reflexive "cops-first" rejection of Ciaramella's request was particularly brash, seeing as it completely contradicted a previous judicial ruling.

A New York judge ruled two years ago — in response to a NYCLU lawsuit, naturally — that discharge reports are subject to disclosure, do not violate officers’ privacy and do not compromise the department’s investigative techniques.

The NYPD at least tried a different tack with Ciaramella's next discharge report request, denying it because it was insufficiently descriptive of the files requested -- even though it was nearly identical to the previous filing.

This is a systemic problem. FOI requests are ignored, rejected or put on the back burner until someone gets a lawyer involved. If any answer arrives, it's usually months or years down the road and, in many cases, redacted to the point of uselessness.

New York's FOI problem goes all the way to the top. Bloomberg's office has spent significant amounts of time and money battling FOI requests as well.

ProPublica's Sergio Hernandez spent nearly two years trying to obtain emails related to the 2010 appointment of Cathie Black as School Chancellor. (Black was a controversial pick who stepped into the position with no relevant experience after her predecessor suddenly resigned his post.)

When the emails were finally released last week, after a two-year legal battle, they revealed a desperate public relations campaign in which city officials tried to rally support from prominent women — including Oprah Winfrey, Gloria Steinem, Caroline Kennedy, and Bette Midler — to champion Black's appointment. (I'll admit: never in a million years did I expect my work to result in stories containing the sentence, "Ms. Winfrey couldn't be reached for comment.") In the end, the emails were amusing, slightly enlightening, but largely innocuous.

Hernandez points out that much has been made about the last-minute attempt to persuade female celebrities to show their support for the new chancellor, but much less ink has been spilled questioning why the city fought this request for so long, racking up a total of 180 staff hours and costs of over $25,000.

In the very limited defense of the NYPD, all FOI requests are funneled through a single office. This inefficient design can partially be blamed for the extensive delays. But it doesn't excuse the general attitude that citizens need to be an open book while those in charge continue to operate in near opacity. And the inequity keeps getting worse, according to Robert Freeman, executive director of the NY State Commission on Open Government.

“I’ve been here since 1974,” Freeman said. “The track record of the police department, particularly in the last decade, indicates in so many instances a failure to give effect to the spirit and letter of the freedom of information law."

“I look back at various mayoral administrations, and my feeling is that there was more of an intent to comply with the law in the era of Mayor [Ed] Koch than there has been since,” Freeman continued. “My sense has been that the downward slope began in Giuliani’s administration.”

There's little hope of any immediate change. Entities like the two discussed are naturally resistant to transparency and sudden movement. The fact that the NYPD and Mayor Bloomberg have formed a mutual admiration society over the years indicates that it will remain "business as usual" until a mayor willing to stand up to the police department (and stand up for his constituents) is elected. The last two office holders have been more than happy to indulge the PD's excesses, all the while further isolating themselves from the demands of transparency laws and the people they're supposed to be serving.

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Nakoula Basseley Nakoula is in federal prison. He's scheduled to remain there until September. He's held under the name "Nakoula Basseley Nakoula," not as "Sam Bacile" (the name he used make the anti-Islamic film "the Innocence of Muslims,") nor under the name "Mark Bassely Youssef" (which he now claims is his current correct name, notwithstanding that he pleaded guilty to a federal crime under the Nakoula name).

Why is he in prison? It depends on who's talking.

To hear some people talk, he's in prison because he made an anti-Islamic movie, because the Obama Administration is eager to cover up the root causes of the Benghazi catastrophe, and because the Obama Administration wants to appease censorious Islamists. Some people merely imply this with headlines: "The guy who made “Innocence of Muslims” is still in jail, and we still don’t know who attacked Benghazi" Some people, like National Review's Rich Lowry, come right out and say it, asserting that Nakoula would not have been arrested and charged with a supervised release revocation but for his speech:

He is not going to win any good citizenship awards and violated the terms of his probation by using an alias (something Nakoula admits).

A violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards. Not for Nakoula.

This wasn’t a case of nailing Al Capone on tax evasion. As Nina Shea of the Hudson Institute points out, Al Capone’s underlying offense was racketeering and gangland killings. Nakoula Basseley Nakoula’s underlying offense wasn’t an underlying offense. He exercised his First Amendment rights.

Some call him a political prisoner.

These people all have something in common. They've never prosecuted a supervised release revocation in federal court. They've never defended someone accused of violating supervised release in federal court. They've never worked as a federal probation officer or filed a petition to revoke a sueprvisee's release. They've never worked as a federal judge and approved or denied such a petition, or presided over such a hearing. They've never seen a supervised release revocation hearing. Moreover, I'd wager a substantial amount of money that before they opined about the proceedings against Nakoula they didn't talk to anyone who had ever done any of these things, or anyone reasonably well informed about how they are done.

I've observed, and participated in, federal supervised release revocation proceedings since 1995. In writing about Nakoula I've drawn not only on that experience but on the actual documents from his case and on the law. My premise has been this: anyone on supervised release for a federal fraud conviction and owing more than $700,000 in restitution would face supervised release revocation if the Probation Office discovered that they were using aliases, engaging in unreported financial transactions, and using computers in those transactions, all in violation of their terms of release. Most federal judges would issue arrest warrants, not summonses, and most federal judges would order jail time to such a person if they found he had obtained and used a false driver's license and concealed transactions from the Probation Officer. Rich Lowry's claim that "[a] violation of probation, though, usually produces a court summons and doesn’t typically lead to more jail time unless it involves an offense that would be worth prosecuting in its own right under federal standards" is quite frankly pulled straight out of his ass. Supervisees are routinely arrested rather than summoned, particularly when there are indications they might be a flight risk — like using a false identity. Supervisees are routinely returned to prison for offenses that would never be prosecuted federally as separate crimes.

Is Nakoula in federal prison because he made the "Innocence of Muslims" video? Superficially, perhaps, in the sense that his behavior may have escaped detection if he hadn't become famous. It's even possible that someone in the Obama Administration tipped off — or pressured — the Probation Office about his conduct. (If that's what happened, there ought to be a Congressional investigation.) But Nakoula's conduct is the sort that would absolutely be pursued if detected by his Probation Office and would routinely result in a revocation of supervised release and a return to federal prison. People saying otherwise don't know what they are talking about or don't care, or both.

I support a vigorous Congressional inquiry into the attack at Benghazi. The most charitable interpretations of the inquiry to date raise grave concerns about the honesty and decency of Obama Administration officials. I support asking hard questions about whether anyone in the administration contacted the U.S. Probation Office in Los Angeles about Nakoula. But this inquiry doesn't require, and shouldn't encourage, lying about the law. We should absolutely fight, to our last breath, pressure to yield to unprincipled "hate speech" and "anti-blasphemy" norms of other countries. But the cause of freedom of expression is not advanced by cynical and dishonest partisan bullshit.

Edited to add:

Mr. Baldwin, you're completely awesome. But my days of taking you serious politically are certainly coming to a middle.

Nakoula Basseley Nakoula Can Be Whomever You Want Him To Be. © 2007-2013 by the authors of Popehat. This feed is for personal, non-commercial use only. Using this feed on any other site is a copyright violation. No scraping.

Michael Hirsh has a must-read on yesterday’s hearing. At the center of it was Gregory Hicks, the deputy to Ambassador Stevens located in Tripoli at the time of the attack:

The most moving — if still-not-quite scandalous — testimony came from Hicks, who described how he virtually begged for help as Stevens and his colleagues were being killed that night of Sept. 11, 2012. The help never came. The administration’s response has been that Hicks, a diplomat, is no expert in military capabilities, and his allegations have already been directly rebutted by both Gen. Martin Dempsey, the Joint Chiefs chairman, and former Defense Sec. Leon Panetta. Dempsey testified in February that it would have taken “up to 20 hours or so” to get F-16s to the site, and he called them “the wrong tool for the job.”

And what about ground forces?

Hicks had already told Republican investigators about the seven-person rescue team, including four U.S. Special Forces, that was delayed in heading from Tripoli (where Hicks was) to the consulate, after it was under attack. “How did the personnel react,” asked Chaffetz, “at being told to stand down?” Hicks remembered them being furious. “I will quote Lt. Col. Gibson,” said Hicks, referring to the commander at the Special Operations Command Africa who’d expected to join the mission. “He said, ‘This is the first time in my career that a diplomat has more balls than someone in the military.’ ” …

On May 1, 2013, the Pentagon sent a timeline of its actions to the House Armed Services Committee. And according to that, Panetta had OK’d the movement of FAST platoons and a special operations force before 3 a.m. local time, but no aid arrived before the mortar attack that killed Woods and Doherty. According to Hicks, the team wanted to get to Benghazi as quickly as possible. According to Panetta, if it had, it wouldn’t have helped.

The hearing’s key moment for Ed Krayewski:

[Hicks] testified that the ambassador made no mention of a demonstration at the mission in Benghazi, only an attack, and that “[t]he YouTube video was a non-event in Libya,” despite the Obama Administration’s attempts to pin the violence in Libya to protests over a trailer for an anti-Muslim film that had been on YouTube for months. It was all about the video Obama apologists cried in the aftermath of the Benghazi attack (and the run-up to November’s presidential election). That position does not appear to be connected to reality at all.

Kevin Drum sighs:

Rice’s interviews were litigated to death long ago. If you actually review the evidence, it turns out that her language was careful; it was based on CIA talking points; there was (and still is) evidence that the “Innocence of Muslims” video played a role in the attacks; and al-Magariaf was almost certainly wrong about whether the attacks were a long-planned operation. Details here.

But Stephen Hayes points out that “the Weekly Standard reported this week that early versions of those C.I.A. talking points prominently noted that extremists with ties to Al Qaeda were involved in the attacks and that Ansar al-Shariah had claimed responsibility on social media.” Joe Klein’s view:

It does seem that the Administration’s talking points were massaged a bit after the President’s candor [that the attack was an "act of terror"]. This may have been attributable to the presidential campaign and the Administration’s desire to low-ball the Al Qaeda threat. If so, this was a venial, not a mortal, sin. It affected not one life. More likely, though, the wording was scrubbed as a result of the nature of the investigation going on at the time–it may have been deemed premature to announce that it was a pre-meditated act of terror. Perhaps the local militia lucked into a situation where they showed up at the consulate and found very little security protection. Hard to say. There were protests all over the middle east that night, ginned up by jihadis using the excuse of a near-unseen anti-Muslim You Tube video.

But let’s say the street gang had been casing the joint in advance. Who’s to blame for the lax security? This is the real substance of the case. Could it have been the Secretary of State? Undoubtedly, no. This sort of question is well below her pay grade. Could it have been the person in charge of embassy security issues? More likely, and that person resigned after the subsequent investigations…and even that might have been unfair for two reasons. Security was up to the Ambassador and Chris Stevens was well known for erring on the side of greater public access to U.S. facilities. Or, more plausibly, reason number two…

Could it have been the Republicans who consistently voted against funds for increased embassy security? Hmmm…that makes their current carping seem awfully political, doesn’t it?

Hirsh’s bottom line:

There was tragic incompetence, plainly, in the Obama administration’s handling of the Benghazi attacks, and even possibly some political calculation. It is a record that may well come to haunt Hillary Clinton, the first Secretary of State to lose an ambassador in the field in more than three decades, if she runs for president in 2016. But the obvious Republican effort to turn this inquiry into the Democratic (Obama) version of the Iraq intelligence scandal that has tarred the GOP since the George W. Bush years — led by that least-credible of champions, the almost-always-wrong Darrell Issa — is just not going to amount to much.

Which is the only reason we haven’t covered this much. Because what is worth covering has largely been covered; because some in government have already lost their jobs for the incompetence; because we have had nine separate Congressional investigations, while attacks on embassies and consulates in the past have been far less likely to be controversial. In other words: this is now a function entirely of factionalism. It’s a test of how far one cable news channel can go in creating something big out of something tragic, regrettable, well worth looking into, but in the end scarcely scandalous.

Scott Bloch used to be a deputy director to the Department of Justice's Task Force for Faith-based and Community Initiatives under President George W. Bush and a Special Counsel at the United States Office of Special Counsel. Now he's a defendant in a federal criminal case, and has pleaded guilty to a misdemeanor for approving a "seven level wipe" on certain Office of Special Counsel computers, and now faces sentencing. This represented a milder charge than ones the government previously pursued: the feds charged him initially with contempt of Congress but abandoned that charge after Bloch was allowed to withdraw a guilty plea to it.

In addition to all that, it appears that Scott Bloch is a censorious thug.

Empty Wheel — which has been following Bloch's prosecution closely — has a post describing how Bloch has threatened bloggers writing about his case. Empty Wheel attaches and quotes a letter on Scott Bloch's own law firm letterhead. It includes the following language:

I write to demand that you remove these articles and blogs about me and my time as Special Counsel immediately. This is harmful to my professional reputation as a lawyer and you are not commenting on any public matters that are current. The prior legal defense fund is defunct and has not been active for over two years. Your demeaning and personal attacks impute to me qualities that tend to injure me in my business of representing contractors. Your website is dedicate [sic] to them and therefore you are targeting my business in Washington, D.C. intentionally, and my residence in Virginia, from where I draw some of my clients.

If you choose to ignore this and not remove the materials from your internet site and blogs and all caches, I will be forced to sue for an injunction and to seek damages. As long as the article remains on your website, you are publishing it. In addition, you are publishing it in various fora, including in Virginia and Washington D.C. where I represent employees and federal employees [sic] Continuing publication also subjects you to Virginia jurisdiction as long as the article remains on the web. I will institute an action in Virginia and in Washington D.C. against you for defamation and actual malice, together with damages and punitive damages.1 I will also seek damages for civil conspiracy to harm my business, and Virginia courts and juries have proved to be very protective of one’s business reputation when gratuitously harmed by publications. If I determine through discovery that you have worked with others to do this, I will join them as well. (emphasis added)

Were it not a vexatious attempt to chill free speech, Bloch's letter would be comical because it is so surpassingly ridiculous. First, Bloch does not specify which specific statements in the blog posts are false and defamatory. As I often say, vagueness in a defamation threat is the hallmark of meritless thuggery. Second, the assertion that Bloch's federal case — the prosecution of a former Department of Justice and Office of Special Counsel lawyer — is not a "public mater" that is "current" is freakishly frivolous. Third, the demand that bloggers remove all materials — not just specified allegedly false statements — is legally unsupportable and a reliable tell of censorious bullying, not merit. Fourth, the statement "As long as the article remains on your website, you are publishing it" is at best a highly questionable assertion of law. Virginia will probably follow the Single Publication Rule, and the District of Columbia definitely follows it; that rule provides that the statute of limitations for a defamation suit begins to run when a statement is first published, even if it remains on the internet thereafter.

Bloch's letter has all of the signs of bullying and none of the signs of truth. Empty Wheel notes that he has not threatened a larger blogger with a wider audience, but smaller blogs — perhaps ones more easily cowed.

I hope that someone finds a way to put this threat before the judge in Bloch's case to consider when he is sentenced.

Former Bush Administration Attorney Threatens Bloggers As He Faces Federal Sentencing © 2007-2013 by the authors of Popehat. This feed is for personal, non-commercial use only. Using this feed on any other site is a copyright violation. No scraping.

Where are the Women? Stanford Law School “CodeX FutureLaw Conference” Edition

Check out the line-up for yourself, here. 26 speakers; 25 men.  One woman who is a student.

Conference organizer Tim Hwang said this in a Law.com article about the purpose of the conference. He said the inspiration behind the conference was “what awesome things are people working on [in legal services field] that should be shared more widely?”

He perhaps didn’t say that he only wanted to hear what men were doing, but the impact of the conference line-up is precisely that.

-Bridget Crawford

Feminist Law Professors

In apparent observation of international trade sanctions against Syria, a U.S. firm that ranks as the world’s fourth-largest domain name registrar has seized hundreds of domains belonging to various Syrian entities, including a prominent Syrian hacker group and sites associated with the regime of Syrian President Bashar al-Assad.

Network Solutions LLC. and its parent firm — Jacksonville, Fla. based Web.com — have assumed control over more than 700 domains that were being used mostly for sites hosted in Damascus. The seizures all occurred within a three- to four-day period in mid-April.

The apparently coordinated action ended with each of the site’s registration records being changed to include Web.com’s Florida address, as well as the notation “OFAC Holding.”

OFAC is short for the Office of Foreign Assets Control, an office of the U.S. Treasury Department‘s  Under Secretary of the Treasury for Terrorism and Financial Intelligence. OFAC administers and enforces U.S. economic trade sanctions against targeted foreign countries, including Syria.

Web.com declined to say whether it had coordinated the seizures or why it may have done so. “We do not comment publicly about specific accounts so we cannot provide details about the websites or domains mentioned in your inquiry,” the company said in an emailed statement.  ”However, you should know that we cooperate with law enforcement and regulators in order to prevent illegal activity online and take the necessary steps to be in compliance with applicable laws and regulations.”

Under a series of executive orders, U.S. businesses are prohibited from selling goods and services into Syria. While there are a number of exceptions — referred to as “general licenses” in OFAC-speak — domain hosting and registration services are not among them. Although the general licenses permit services that are designed for personal communications, the provision of Web hosting and domain name registration is specifically called out in Treasury regulations (PDF) as not authorized under general licenses.

A spokesman for the Treasury Department said OFAC had not contacted either Web.com or Network Solutions regarding these Web sites.

“OFAC has offered a general license authorizing the  export of certain services for the exchange of personal communications over the Internet, such as instant messaging, chat and email, so that these sanctions don’t have the inadvertent effect of cutting the Syrian people off from the rest of the world,” said John Sullivan, spokesman for the Treasury Department’s Terrorism and Financial Intelligence division. “But the [general license] that allows for that does not authorize the exportation of Web hosting or registration services, so those could be subject to enforcement actions under our Syrian sanctions program.”

The domain seizures came to my attention after reading a report produced last month by HP‘s security and research team, which noted that individuals associated with a pro-Assad hacker group known as Syrian Electronic Army were complaining that NetworkSolutions had seized their domains, including syrian-es.com, syrian-es.net and syrian-es.org.

A reverse WHOIS report ordered from domaintools.com produced this list (PDF) of some 708 Syrian domains recently shuttered and assigned an “OFAC” designation by Web.com. According to historic Web hosting records also maintained by domaintools.com, the vast majority of the 700+ domains were hosted at Internet addresses assigned to the Syrian Computer Society (SCS). Interestingly, prior to assuming the presidency, Syria’s Assad was president of the SCS, a group now widely believed to have been a precursor to the Syrian Electronic Army.

Probably best known for hijacking the Associated Press’s Twitter account and sending the stock markets swooning after posting a fake tweet about a bomb going off at the White House last month, the Syrian Electronic Army uses distributed denial-of-service attacks, phishing scams and other tricks to target dissidents within Syria as well as sympathizers outside the country.

The hacking of the AP’s Twitter account may have been the first widespread exposure for the Syrian Electronic Army, but it has been targeting and successfully compromising other high-profile media outfits for the past two years. As the HP report notes, the SEA took credit for hacking Reuters’ Twitter account in Aug. 2012, and for hijacking various social media accounts belonging to NPR, BBC, CBS, and even organizations that might be more sympathetic to the pro-Assad activists, such as Al-Jazeera, Sky News Arabia and the Qatar Foundation.

WHAC-A-MOLE MARTYRDOM?

According to HP, the SEA is somewhat unique because of the combination of the tactics used in support of their pro-Assad agenda. Past actions by the SEA have involved setting up fake Facebook and Youtube sites in a bid to collect login credentials and spread malware. “When an account has been compromised, it is used to collect information on the user and to distribute pro-Assad messages,” the HP researchers wrote. “For Syrians participating in anti-Assad protest movements this can be dangerous, as it has been alleged that the SEA turns information on these individuals over to the government.”

The HP report details how the SEA’s other social media and propaganda arms on Twitter and Facebook are constantly being shuttered, often for unspecified violations of those sites’ terms of service.  Undeterred, the group simply registers another Facebook account with the same name, adding tacking on successive digits to the end of their Facebook account names (its latest account name ends in 207).

Ted Ross, executive technologist at HP’s Office of Advanced Technology, said he worries that all of this Whac-a-Mole activity targeting the Syrian Electronic Army’s various social media properties is creating a digital martyrdom effect.

“We feel like there is this unfortunate side effect of this whac-a-mole game played by Facebook and Twitter,” Ross said. “It impacts SEA’ ability to propagate their propaganda, but you can’t help but wonder what the impact is to the people who are following them and who agree with their motives. This whac-a-mole game almost gives people who are doing this the type of [activity] the legitimacy they seek. When their Facebook page gets disabled, the community rallies behind that.”

It’s not clear how much hacking the Syrian Electronic Army is going to be doing for the time being. In an abrupt move, Internet access in Syria was taken completely offline by the Syrian government last night. At roughly 18:45 UTC on May 7, nearly all of the Internet paths from Syria were withdrawn from the global routing table, according to Renesys. OpenDNS and Arbor Networks also have more information on this outage.

In the meantime, U.S. hosting providers and domain name registrars should be aware that supporting Syrian businesses and other entities associated with the Syrian government or regime could result in civil enforcement actions from the Treasury Department and potentially hefty fines.

“US companies need to be aware of our sanctions program,”  Treasury’s Sullivan said. “A very important part of doing business is that they do not enter into financial transactions with sanctioned parties. And OFAC is very active about pursuing enforcement cases where they need to happen.”

The FBI and the CIA are being criticized for not keeping better track of Tamerlan Tsarnaev in the months before the Boston Marathon bombings. How could they have ignored such a dangerous person? How do we reform the intelligence community to ensure this kind of failure doesn't happen again?

It's an old song by now, one we heard after the 9/11 attacks in 2001 and after the Underwear Bomber's failed attack in 2009. The problem is that connecting the dots is a bad metaphor, and focusing on it makes us more likely to implement useless reforms.

Connecting the dots in a coloring book is easy and fun. They're right there on the page, and they're all numbered. All you have to do is move your pencil from one dot to the next, and when you're done, you've drawn a sailboat. Or a tiger. It's so simple that 5-year-olds can do it.

But in real life, the dots can only be numbered after the fact. With the benefit of hindsight, it's easy to draw lines from a Russian request for information to a foreign visit to some other piece of information that might have been collected.

In hindsight, we know who the bad guys are. Before the fact, there are an enormous number of potential bad guys.

How many? We don't know. But we know that the no-fly list had 21,000 people on it last year. The Terrorist Identities Datamart Environment, also known as the watch list, has 700,000 names on it.

We have no idea how many potential "dots" the FBI, CIA, NSA and other agencies collect, but it's easily in the millions. It's easy to work backwards through the data and see all the obvious warning signs. But before a terrorist attack, when there are millions of dots -- some important but the vast majority unimportant -- uncovering plots is a lot harder.

Rather than thinking of intelligence as a simple connect-the-dots picture, think of it as a million unnumbered pictures superimposed on top of each other. Or a random-dot stereogram. Is it a sailboat, a puppy, two guys with pressure-cooker bombs, or just an unintelligible mess of dots? You try to figure it out.

It's not a matter of not enough data, either.

Piling more data onto the mix makes it harder, not easier. The best way to think of it is a needle-in-a-haystack problem; the last thing you want to do is increase the amount of hay you have to search through. The television show Person of Interest is fiction, not fact.

There's a name for this sort of logical fallacy: hindsight bias. First explained by psychologists Daniel Kahneman and Amos Tversky, it's surprisingly common. Since what actually happened is so obvious once it happens, we overestimate how obvious it was before it happened.

We actually misremember what we once thought, believing that we knew all along that what happened would happen. It's a surprisingly strong tendency, one that has been observed in countless laboratory experiments and real-world examples of behavior. And it's what all the post-Boston-Marathon bombing dot-connectors are doing.

Before we start blaming agencies for failing to stop the Boston bombers, and before we push "intelligence reforms" that will shred civil liberties without making us any safer, we need to stop seeing the past as a bunch of obvious dots that need connecting.

Kahneman, a Nobel prize winner, wisely noted: "Actions that seemed prudent in foresight can look irresponsibly negligent in hindsight." Kahneman calls it "the illusion of understanding," explaining that the past is only so understandable because we have cast it as simple inevitable stories and leave out the rest.

Nassim Taleb, an expert on risk engineering, calls this tendency the "narrative fallacy." We humans are natural storytellers, and the world of stories is much more tidy, predictable and coherent than the real world.

Millions of people behave strangely enough to warrant the FBI's notice, and almost all of them are harmless. It is simply not possible to find every plot beforehand, especially when the perpetrators act alone and on impulse.

We have to accept that there always will be a risk of terrorism, and that when the occasional plot succeeds, it's not necessarily because our law enforcement systems have failed.

This essay previously appeared on CNN.

EDITED TO ADD (5/7): The hindsight bias was actually first discovered by Baruch Fischhoff: "Hindsight is not equal to foresight: The effect of outcome knowledge on judgment under uncertainty," Journal of Experimental Psychology: Human Perception and Performance, 1(3), 1975, pp. 288-299.

(Eugene Volokh)

Some recent conversations I’ve heard about “positive rights” and American legal traditions made me want to repeat something I’ve written before: While it’s true that the U.S. Constitution lacks some of the “positive rights” that people sometimes discuss under that label (e.g., a right to shelter, to medical care, to a subsistence income, and so on, it does secure other positive rights; and indeed, some positive rights are a longstanding feature of American legal traditions. I think such rights should remain limited, but I think one shouldn’t deny that they exist, and are in some measure secured by the U.S. Constitution (and state constitutions).

First, some definitions. The term “right” is a broad one, which encompasses many different kinds of entitlement.

1. Rights can be against the government (e.g., the freedom of speech or the right to keep and bear arms) or against private entities (e.g., the right to be free from trespass, negligent or intentional injury, or defamation).

2. Rights can be constitutional (e.g., the freedom of speech), statutory (e.g., copyright, which is authorized by the constitution but actually secured by Congressional statute, or freedom from many kinds of private discrimination), common-law (e.g., historically, rights to be free from private trespasses, negligence, defamation, breach of contract, etc.), or contractual, depending on which source of law secures those rights.

3. Rights can belong to individuals, associations of individuals (churches, partnerships, corporations), or governments (especially when the government’s right is a right asserted against other governments). Some people claim that governments can only have “powers,” not “rights,” but that’s not the way American legal usage has operated (see here for sources).

4. Rights are generally judicially enforceable, but they may also be broadly agreed on as entitlements even when the courts don’t step in. For instance, most people would say that everyone has a right to police protection, even though such a right may be unenforceable. We think the government ought to provide that protection (subject to manpower constraints, and possible police and prosecutorial discretion not to enforce certain relatively petty laws). If the government fails to provide such protection, we would think it’s doing something wrong, and the political process would often correct this.

So this is something of a right (especially when the judgment is about the government’s proper role, and not just judicially enforceability). Likewise, the constitutional command that Congress protect each State from invasion is probably not judicially enforceable; but one can characterize this as a right of a state.

5. Rights can be negative rights, which is to say (quoting Black’s Law Dictionary), “entitling a person to have another refrain from doing an act that might harm the person entitled.” Some examples: Free speech is a negative constitutional right against the government. My property rights in my land are a negative constitutional right against the government and a negative common-law/statutory right against private entities.

6. Rights can be positive rights, which is to say “entitling a person to have another do some act for the benefit of the person entitled.” Some examples: The right to demand that the government enforce your contracts is a positive constitutional right against the government). The right to public education under those state constitutions that secure such a right is a positive state constitutional right against the government. The right to get money under an annuity you’ve bought is a positive contractual right against a private entity. A child’s right to support from his parents is a positive common-law and statutory right against a private entity.

7. Rights can be equality rights, which is to say rights to be treated the same way that others who differ only in certain particulars are treated. Some examples: The right not to be discriminated in government hiring is a constitutional and statutory equality right against the government. The right not to be discriminated against in private hiring is a statutory equality right against a private party. Such an equality right may end up being a right to get a certain benefit, but only when the government or the private party is already giving the benefit to others.

8. Rights can also be rights to participation in government functions, such as the right to vote (secured by various state and federal statutory provisions, and in some measure by some state and federal constitutional guarantees). These are in a sense positive rights, but not quite the same as other rights.

9. Rights can also be mixtures, or look like one while actually being the other. The right to have a criminal defense lawyer appointed for you (if you’re too poor to afford one) may look like a constitutional positive right, but I think it’s really a constitutional negative right — it’s really the right not to be deprived of your liberty unless you’ve been convicted through a process in which a lawyer has been appointed for you. Similarly, your rights in your property consist of (1) a negative right against private people who would trespass on it, (2) a more limited negative right against the government, preventing it from trespassing on the property unless it takes the property for a public purpose and pays just compensation, and (3) a positive right against the government to protect your property via the court system and the police.

10. The Constitution and positive rights: As I’ve mentioned above, the federal Constitution does secure a few positive rights. The clearest example is the Contracts Clause, which bars states from impairing the obligation of contracts, and thus mandates states to provide a forum for enforcing contracts. Under this Clause, people have a right to demand that the government enforce their contracts. (The Court has provided only weak protection for this right, which I think is a mistake, but the right still is a positive right.)

Likewise, the Takings Clause bars the government from interfering with my right to exclude others from my property. If I own some wooded land, the government can’t just say “You must allow everyone onto the land.” That would be a taking of my private property and making it public property.

I think it follows that the government also can’t simply refuse to enforce trespass laws, for instance by saying “The police and the courts shall not enforce civil or criminal trespass laws against those who trespass on others’ woodland property, or who tear down fences protecting others’ woodland property.” Such a deprivation of legal protection would be close to legally destroying my property right. (It wouldn’t be exactly the same, because it would still leave me with some negative right to be free of legal punishment for defending my property through force.) I think that such a denial of property protection probably would violate the Takings Clause.

The right of holders of United States debt to be paid back is likely a positive constitutional right, too. See Article VI, “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation,” and the Fourteenth Amendment, “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

The Seventh Amendment might also be seen as securing a positive right to have lawsuits that one brings in federal court be decided by a jury, so long as one is seeking common-law remedies and asking for more than $20. This is a closer call, since Congress could withdraw federal jurisdiction over many and maybe all cases seeking such remedies. But so long as such jurisdiction is available, plaintiffs are entitled to have a jury convened to hear the case; and the assumption behind the Amendment is that plaintiffs indeed have a positive right to sue, whether in federal court or in state court. (The defendant’s right to a civil jury is, I think, a negative right not to have to pay damages without having a jury decide the matter.)

And all these positive rights, I think — the Contracts Clause, the Takings Clause, the Debt Clauses, and the Seventh Amendment — capture a broader point. Civilized life requires that the government positively protect property, contracts, and persons, and while the political process must have a great deal of flexibility in deciding the scope of such protection, some amount of such protection is constitutionally required.

11. Many state constitutions provide more positive rights — two prominent examples are the right to sue in court, and in many constitutions the right to a public education.

12. Conservatives and libertarians and positive rights: This suggests that conservatives and moderate libertarians (though not anarcho-libertarians) do and should indeed endorse positive rights, including positive constitutional rights.

Consider the various agencies of government, and the demands that you can place on them.

You can go to the police station and say “Come eject these people who are trespassing on my property.” That’s generally seen by conservatives as a right, even if not always a legally enforceable one. It’s the positive right to get (and without paying for it, except through taxes) a certain government service.

You can go to court and say “Issue a judgment awarding me damages for my ex-partner’s breach of contract.” That is a legally enforceable right, secured both by common-law and by the federal constitution. It’s the positive right to get (and these days without paying for the entirety of the court’s expenses) a certain government service.

You can go to the government and say “Educate my child for free.” That is a legally enforceable right, secured by state statutes and many state constitutions. It’s the positive right to get a certain government service — one that’s more controversial among many libertarians and some conservatives, though also one that’s broadly accepted by many conservatives and some moderate libertarians (though they might prefer that the right be to a voucher redeemable at a wide range of schools).

You can go to the government and say “Give me medical care.” That too would be a positive right to get a certain government service, though one that is probably opposed (except perhaps as to a few services, especially ones having to do with communicable diseases) by many hard-core conservatives and libertarians.

All of these are claims of positive right. Indeed, one can distinguish them on various grounds. But none of these distinctions change the fact that

1. a right to get the government to enforce your contracts (secured by the Contracts Clause and by the common law and statutes of all states),
2. a right to get the government to protect your property by awarding you injunctions and damages against trespassers (secured by the common law and statutes of all states, and I think by the Takings Clause),
3. a right to get the government to protect your property by sending out the police or the sheriff to eject trespassers (accepted as a matter of practice everywhere, even where it’s not legally enforceable through a lawsuit against the police department, and I suspect actually legally enforceable in many states), and
4. a right to get the government to protect you by sending out the police when you call for them (accepted as a matter of practice everywhere, subject to manpower constraints and other limitations, though generally not legally enforceable)

are all positive rights — entitlements to have government act for one’s benefit (though indirectly also for the benefit of society) — that conservatives and moderate libertarians would generally endorse.

Protection of private property and freedom of contract is a core function of government. Conservatives are right to stress its importance. But it is not the antithesis of positive rights against the government. Rather, it necessarily involves such positive rights (at least in the view of conservatives and most moderate libertarians, and in the American legal tradition of protecting property and contract).

Last week we ran a post about how to teach the topic of "Law and the 'War on Terror,'" part of my series of posts on teaching the U.S. Legal History survey for the first time. In response to my question about useful readings, both for assignments and background knowledge, reader Patrick S. O'Donnell (Santa Barbara City College) sent us two terrific bibliographies, one on terrorism and the other on torture. He gave us permission to post them in full, after the jump.
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