Evil Or Incompetent, NSA Edition

The Heartbleed bug, best explained by XKCD, has been in the news the last few days, and the NSA has been accused of exploiting it for years. They’ve issued their standard denial, which led me to make this comment:

This is worth elaborating upon: the NSA is either evil or incompetent. There is no other choice. The options are:

  • the NSA knew about the bug and let it exist for years, exposing the private data of millions of citizens and risking far more damage than they could have possibly prevented.
  • the NSA, which snoops on most of the world’s web traffic and has a budget in the billions, could not locate this bug or even hear any criminals discussing it among all the data it collects.

I, for one, hope for the latter. It’s hard to fear totalitarian control by an entity so freaking inept.

Hypocrisy In Action

A paraphrased but substantively accurate conversation between my dad and me that actually happened.

Me: I’m going into town to grab something. Do you need anything?
Dad: Yes! Glad you’re going. I need some wood screws.
M: Wait, we have wood screws. We put all the old tools and things in those boxes in the shed so we’d have them for later.
D: Yeah, but those boxes are full of stuff. It’ll take forever to get to them in there, and then again to find the one box of wood screws. It’s like $2, just buy a new box.
M: So we kept those to save money and now we’re buying more because we can’t go through all the stuff we kept to save money?
D: Yes.
M: This was stupid.
D: Why are you going into town in the first place?
M: I need to get a USB cable for the computer.
D: Don’t we have all the old cords and cables somewhere?
M: Yeah, but who can find that?

No one called me on it, so I’m doing it here, publicly.

The Importance Of Clarity In US Law

I wrote recently that “clarity [in written laws] is more important in America than in most countries, and in the next few days I’ll explain why.” The answer, and this was probably obvious, is that the US has a more heterogeneous population that almost any country in the world. As a result of a long-standing policy on relatively open immigration, especially in the 19th century, the United States lacks cultural hegemony by a dominant group. Sure, there is an Anglo-Saxon heritage that persists to the present day, and there is something of a national culture reinforced by Hollywood and the media, but given the size of American population and its varied origins, the US has large subcultures with different cultural assumptions.

These cultural differences eventually (now) play themselves out in the legal system out of necessity: individuals from different groups will end up in conflict. Laws, meanwhile, can’t possibly predict all possible interactions that may ensue, so not all rules can be clearly defined in advance. This is a more important feature in common law jurisdictions like the US, but it plays a part in civil law countries as well. As a result, rules sometimes contain guidelines that necessarily involve judgment calls. For example, criminal laws often use different gradations of state of mined, including “purposely, intentionally, recklessly, or negligently.” Similarly, many (too many) statues and common law rules require people to act “reasonably” under some circumstance or another. It’s self-evident to me that “reasonable” can mean very different things to different people, although the legal system has the nerve to refer to this rule as an “objective standard.”*

*Meaning only that something seem reasonable to other people, rather than just the perpetrator. I just find it ironic in many ways.

Now, put groups with different cultural assumptions together, and provide them guidance using words like “reasonable,” and see what happens. The answer is lawsuits. Lots of lawsuits. I’m firmly convinced that the perceived litigiousness of the United States, at least below the corporate level, can be traced to misaligned cultural assumptions. I’d also venture that some other social pathologies like low-level crime have similar causes. Basically, there are many borders between cultural groups in America, and at these borders are no-man’s-lands and occupied territories where people disagree on what’s reasonable. More such borders means more potential for conflict, and more conflict means more fighting or more lawsuits.* This is also true when the dispute is between an individual and the state.

*Ideally the latter, because fighting is bad, and also I’m a lawyer.

I quoted Scalia last time when he pointed out that criminal law must be read against the government, which is not only in the best position to make changes if they’re needed, but also the party seeking to deprive others of life, liberty, or property. Plus, fairness requires that people know in advance what’s prohibited. In America, there is far more potential for misunderstanding, and that puts an additional responsibility on those who seek to enforce criminal laws to make them as clear as possible.













Mandatory McCutcheon Post

WASHINGTON (AP) — The Supreme Court’s conservative majority voted Wednesday to free wealthy donors to give to as many political candidates and campaigns as they want, further loosening the reins on giving by big contributors as the 2014 campaign moves into high gear.

It was a fresh declaration by the 5-4 majority that many limits on big-money contributions violate the givers’ constitutional free-speech rights, continuing a steady erosion of the restrictions under Chief Justice John Roberts. The biggest of those rulings was the 2010 decision in the Citizens United case that lifted restrictions on independent spending by corporations and labor unions.

Wednesday’s ruling voided the overall federal limit on individuals’ contributions — $123,200 in 2013 and 2014 — and may have more symbolic than substantive importance in a world in which millions in unlimited donations from liberal and conservative spenders already are playing a major role in campaigns.

The ruling will allow the wealthiest contributors to pour millions of dollars into candidate and party coffers, although those contributions will be subject to disclosure under federal law, unlike much of the big money that independent groups spend on attack ads.

That about sums it up, and I’ll just give my general thoughts below:

  • Contribution limits are largely pointless. As long as government officials have broad powers, access to them will be desirable and profitable. This means that money will find its way to government officials.
  • If the above doesn’t happen via donations, it’ll be through business dealings or bribery. (“Oh, I can’t donate $200,000 to your campaign? Shame. I’ll tell your son, whom I just hired at $400,000 a year.”) Think about cocaine: there’s demand for it, so it’s supplied even when it’s outlawed. Same with access to powerful officials.
  • You probably expected this, but the way to “get money out of politics” is to “get power out of politics.” No one’s going to bribe officials that can’t do much. The First Amendment makes it extraordinarily difficult for the government to regulate speech; if other governmental powers were subject to similar hurdles, there would be a lot less chasing after elected officials.
  • Unrelated to the substance, SCOTUS nerds should be happy about John Roberts and Elena Kagan’s presence on it. Those two write some of the best opinions I’ve read, and Roberts proved it here, too. Best quote: “Those who govern should be the last people to help decide who should govern.”

More On Language & Crime

I wrote recently about Smith v US, a decision I consider to be an abomination because of how it interpreted the word “use.”* The reason I dislike that decision is that it violates my sense of fairness: trading a gun for drugs isn’t the same as using a gun during a drug deal, no matter what the majority would have you believe. Of course, my sense of fairness isn’t a legal standard, but something similar is, and three justices of different persuasions thought as I do.

*Writing about words and the law gives you a new perspective on Bill Clinton’s famous question about what “is” means.

Justices Scalia, Stevens, and Souter dissented from the Smith decision, arguing that it was a violation of the rule of lenity. This rule is basically a judge-made guideline that say that ambiguity in criminal statutes must be resolved in favor of the defendant. Karl Llewellyn argued in a classic article that such rules often conflict with one another, and while that’s true, I think the rule of lenity must be one of the most important ones in a free society. There must be a fair warning as to what is prohibited, and it is incumbent upon a government that wants to deprive someone of liberty or property  to make it clear, well in advance, what sort of behavior will be punished. Scalia nails the reasons for this rule in United States v. Santos, 128 S.Ct. 2020 (2008)

The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. See United States v. Gradwell, 243 U. S. 476, 485 (1917); McBoyle v. United States, 283 U. S. 25, 27 (1931); United States v. Bass, 404 U. S. 336, 347– 349 (1971). This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.

That, in brief, is how every law should be read in a free society. This obviously benefits some very bad people* because it constraints the government’s ability to do what it wants, but this is a small price to pay for freedom. I’ve advised for the clear expectations in relationships, but at least those take place at roughly the same level. In criminal law, the weight of the state comes down on the defendant, and it’s crucial to protect the innocent. This clarity is more important in America than in most countries, and in the next few days I’ll explain why.



Time Editorials On Rape Culture

Time Magazine featured dueling editorials regarding rape culture last week, by Caroline Kitchens and Jessica Valenti. Kitchens reports on a major anti-rape network will no longer emphasize the idea of rape culture and shows some facts that support their decision; Valenti retorts to show that rape culture is a real phenomenon. They’re both worth reading in full if you care about the topic, but I want to highlight two things that got my attention in particular.

The Substance

First, the substance. Valenti polls Twitter for people’s definitions of rape culture:

Rape culture is when women who come forward are questioned about what they were wearing.
Rape culture is when survivors who come forward are asked, “Were you drinking?”
Rape culture is when people say, “she was asking for it.”
Rape culture is when we teach women how to not get raped, instead of teaching men not to rape.*

My personal experience is perhaps best described by Cracked’s David Wong: “Hey, how many males reading this had to, in the last year, Google the phrase “rape culture” because you were accused of being part of it, yet had no idea what it was?” That’s roughly where I fall on the spectrum. I’ve never thought of rape as something to be minimized or dismissed, and I don’t know anyone who does. I’ve encountered it in my social circle far too often, but I’ve never seen anyone ask if the victim had been drinking or dressed in a particular way.  I have spoken to people, however, whose experiences have been very different – they have heard these questions asked, and victims reluctant to come forward because they’d have to explain themselves. (I’m on the record as stating that a victim bears no responsibility for being attacked, even if they could have reduced the risk to themselves by acting differently, but I can see why someone would feel reluctant to come forward if they had to answer such questions.)

*”Rape culture is when we teach women how to not get raped, instead of teaching men not to rape.” I find this statement silly, and if you don’t, try substituting another crime. Teaching people to lock their car doors or avoid dark alleys isn’t creating a grand theft auto culture and a robbery culture, it’s just common sense. Perhaps there is more education of men needed – probably is, especially when alcohol is involved – but this is a nonsensical argument for the existence of rape culture.

The gulf between the two camps represented above is wide, and it’s not surprising that considering how different people could have different experiences. What’s surprising is how little they’re willing to concede to the other side: you’d think anti-rape activists like Valenti would be glad to know that rape culture isn’t as widespread as they feared, for example**. What’s at play is another tyranny of the dichotomous mind, where the only alternative to one extreme is the other extreme, and shades of grey are ignored. It’s a shame, considering how important this issue is. More on this below.

**While I’m hardly an expert on the issue, I believe Valenti et al are making a big strategic mistake. Instead of matching their words to reality and saying “there’s a problem, we’re making progress, and it needs to be eradicated,” the insistence on a national culture war will alienate many reasonable people whose experiences don’t match theirs. Once someone proclaims the existence of a pervasive national culture, those who don’t see the world that way will tune them out. Considering how impo

The Words

Second, since I’ve been discussing how attaching different meanings to words leads to unproductive discussions, I thought I should point out a particularly glaring instance between these two editorials.  First, Kitchens:

In January, the White House asserted that we need to combat campus rape by “[changing] a culture of passivity and tolerance in this country, which too often allows this type of violence to persist.”

Tolerance for rape? Rape is a horrific crime, and rapists are despised. We have strict laws that Americans want to see enforced. Though rape is certainly a serious problem, there’s no evidence that it’s considered a cultural norm.

Replied Valenti:

Is 1 in 5 American women surviving rape or attempted rape considered a cultural norm? Is 1 in 6 men being abused before the age of 18 a cultural norm?

Here we have two people talking past each other using the same words. “Cultural norm” is a fuzzy concept, and each writer seems to be thinking of it in a different way. For Kitchens, a cultural norm seems to be something generally approved by society at large, like drinking alcohol. In her experience (and in mine), most people don’t condone sexual assault or dismiss victims as having asked for it. Thus, it couldn’t possibly be a cultural norm. For Valenti, it seems to be something that happens frequently in a society, like driving under the influence. (The numbers are, as always, disputed, but read the articles if you want more on that.) Something that happens so frequently must, at some level, be approved by society at large – surely there are ways to bring these numbers down.

Thus we come to the unproductive conversation I warn about: they’re both right in some way, and thus convinced that it’s not worth listening to the other person. It’s especially sad when the topic is so important and common ground isn’t far away.

Offsetting Pentalties: College Athlete Unions And The NCAA

Inside Higher Ed reports big news:

In what could be a landmark case, a regional office of the National Labor Relations Board today backed a bid by football players at Northwestern University to unionize.

“I find that all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are ‘employees’ under” the National Labor Relations Act, Peter Sung Ohr, director of the board’s Chicago regional office, wrote in his ruling. Ohr said walk-on players — those without scholarships — do not qualify as employees.

The ruling cites several factors in concluding that the scholarship football players at Northwestern are employees: that they perform services for the benefit of their employer, and receive compensation (in the form of a scholarship) in exchange, and that scholarship players are “subject to the employer’s control in the performance of their duties as football players.”

We’ll see how this plays out, but I’m hopeful that this is just one more step in bringing the anti-player abuses of the NCAA into light. Perhaps someday we’ll see actual change. In the meantime, the question is this: can a players union do anything to reduce the power of the NCAA cartel? It’s hard to see how.

College athletes, particularly football and basketball players, are woefully underpaid: they produce billions for their schools and conferences and earn almost nothing for the privilege. Colleges are prohibited from paying players beyond their scholarship, and even scholarships must be the one-year kind.* Meanwhile, college football coaches make millions, and college presidents and athletic directors are getting there. An appalling story this week told us that the Ohio State AD, earning a base salary of $940K, received a bonus of $18K for a wrestler’s national title win. The wrestler, of course, got nothing at all.

*That’s right. Schools are not allowed to offer four-year scholarships but can only offer one-year scholarships that are renewed at the school’s whim. So when it comes to “work out” or “study,” the choice for the college athlete is already made.

Having a players’ union probably won’t hurt the players, since they’re getting almost nothing out of this deal. In fact, a labor cartel, which is what a union is, might be the only way to offset the power of the employer cartel, the NCAA, so I’m hoping the union spreads past one college. However, there’s a few reasons to believe that they won’t be able to do much. The biggest one is that player careers in college are very short – 3-5 years at most. The schools can, basically, wait them out, since the players have little leverage. I can’t locate the link now, but an argument has been made that the NFL players’ association is much weaker than the MLB players’ association because median careers are much shorter in football and players can’t strike or hold out as effectively. The same would likely affect college sports. Schools can hold out for a year or two; a top football prospect would be losing two of his prime years and would be much more likely to defect.

At the margin, this development might move the needle a little more in the players’ favor – perhaps the NCAA will buy players off to stop ongoing organizing -  and I’m not abandoning my long-run goal of eliminating the NCAA cartel. It’s more likely, however, that the NCAA will crumble from within – say, with the SEC deciding to leave and do its own thing, followed by other conferences. The inter-conference competition would be a good first step. For now, however, we have a legally backed NCAA monopoly, and I don’t blame the players one bit for organizing against it. They’re the ones tearing ligaments and losing brain cells for nominal compensation.

I’m rooting for them, but breaking a profitable cartel is never easy.

Words Can Send You To Prison

I realized one thing while writing about the discrepancy between dictionary definitions of words and the definitions of those words in ordinary course: some day, that discrepancy will send someone to jail. In fact, it may have already happened. Here’s how.

1. As I’ve tried to demonstrate, there is a difference between a word’s dictionary definition and the way most people perceive the meaning of a word.

2. A statute that prohibits certain conduct (like ‘violence’ or ‘racism’) is supposed to give people notice as to what is prohibited by using words the way citizens would ordinarily use such words.

3. Courts routinely interpret words in laws using their ‘ordinary’ meaning.

4. Courts also routinely reference dictionaries to determine meanings of words in statutes and regulations. In fact, the Supreme Court has done this at least 664 times.

5. Thus, a citizen could easily comply with a statute under the ‘ordinary’ meaning but violate it in under the ‘dictionary’ meaning.

6. Such a person would be punished even though they intended to comply with the law, and in most people’s eyes probably did comply with the law.

This isn’t just a hypothetical. There is federal law imposing criminal penalties on the “use of a firearm” “during and in relation to” an illegal drug trade. I linked above to Smith v. US, a case in which a person traded his gun for drugs. In the ‘ordinary’ reading, he clearly did NOT use his firearm during a drug trade: using a gun, in my mind (and yours), means shooting, or at least pointing the gun with the threat to shoot. The court looked at the dictionary and said that the person did use the gun: he used it to buy drugs. What could be clearer than that?

Smith went to prison for a long time based on the discrepancy I’ve identified. Now that the Supreme Court repeated this behavior in Castleman (stating that “‘domestic violence’ encompasses a range of force broader than that which constitutes ‘violence’ simpliciter”), it’s probably going to happen again. These are just two cases that I’ve heard of – I can’t imagine how many people have been imprisoned or fined because we use words one way and the dictionary defines them differently.

Words matter, and I can’t imagine anything that would demonstrate this more clearly.