Stop Watching Us

Today is a national day of action against warrantless spying by the National Security Agency (NSA). Over 600 organizations such as the American Civil Liberties Union, the Electronic Freedom Foundation, Free Press, etc., have designated this The Day We Fight Back against surveillance. It's also the first anniversary of the death of internet activist Aaron Swartz. We are urged to endorse a set of 13 Necessary and Proportionate Principles to protect international privacy, and to contact our Congresspeople to promote the USA Freedom Act, an admittedly imperfect bill that will partially rein in surveillance, and to oppose the FISA Improvement Act, which would declare the NSA's existing activities to be legal.

Decline and Fall: This Week's Evidence

Catch-22 Revisited

Since the NSA is spying on foreign heads of state, it doesn't take much imagination to think they might also be spying on members of Congress. Earlier this month, Sen. Bernie Sanders (I-VT) wrote to Gen. Keith Alexander, head of the NSA, asking, “Has the NSA spied, or is it currently spying, on members of Congress or other American elected officials?” He defined spying as “gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business.”

© CBS News

Gen. Alexander's reply did not deny spying on Congress. It was straight out of Catch-22. He couldn't answer the Senator's question, he said, because to do so would violate his privacy.

[T]his telephone metadata program incorporates extraordinary controls to protect Americans' privacy interests. Among those protections is the condition that the NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups. For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.

If you read Gen. Alexander's letter, you see that he only answered that part of the Senator's question dealing with metadata and ignored the rest of the forms of spying he asked about. The General and his colleagues undoubtedly had a good laugh about the clever way they were able to dodge Sen. Sanders' query.

Memo to Sen. Sanders: I hope you've never visited any embarrassing websites. If you have, the NSA can threaten to leak this information to your constituents unless you vote the “right” way.

Another Reason Not to Vacation in Florida

I'm sure you've heard that Curtis Reeves, a retired cop, fatally shot Chad Oulson, the man sitting in front of him at a movie theatre, who refused to stop texting his baby sitter as they waited to watch Lone Survivor. Mr. Reeves' attorney has indicated he will plead self-defense under Florida's Stand Your Ground law, since he was hit in the face by an “unknown object” and therefore feared for his safety. Mr. Oulson allegedly threw popcorn at him. Ousler's wife was wounded as she tried in vain to protect him.

© thinkprogress.org

Florida's legal community apparently regards Mr. Reeves' acquittal as a serious possibility. “Here's the problem,” said Stetson University law professor Charles Rose, “We're trying to look into the mind of the defendant and posit what he thought was happening. That's often why these cases go (to) trial—because you just can't tell.” You also just can't tell how creative defendants can be if you allow them to report their own “thoughts.”

According to a witness, Mr. Oulson's last words were, “I can't believe I got shot.” Apparently he didn't realize the NRA, the American Legislative Exchange Council, and the Florida state legislature were sowing the seeds of his demise.

Memo to Mr. Reeves: Popcorn may indeed be life-threating, but only if you ingest it.

Cruel But Not Unusual

Speaking of the death penalty, the state of Ohio executed Dennis McGuire using a new, untested combination of lethal drugs. It took him 25 minutes to die. According to witnesses, which included his family, he writhed in agony and made “loud snorting sounds” while he was dying.

Mr. McGuire's lawyers sued to prevent the execution, arguing that the drugs could lead to “air hunger,” which would cause him to suffer “agony and terror” as he struggled to breathe. A medical doctor testifying for the state said he had no idea how long the drugs would take to kill him. But the judge accepted the Ohio Assistant Attorney General's argument that, in spite of the Constitution's guarantee against cruel and unusual punishment, “you're not entitled to a pain-free execution.”

© cathleenfalsani.com

The apparent reason for this failed experiment is that the usual drug cocktail used for lethal injections is in short supply and the pharmaceutical corporations have raised the prices. This has sent the states scrambling for a cheaper method. The combination of an anti-anxiety drug and a morphine derivative used by Ohio is actually just a larger dose of the drug mixture typically used as an anesthetic during a colonoscopy.

The McGuire family has announced they intend to sue the state of Ohio for causing him “unnecessary pain.” According to Douglas Berman, an Ohio State law professor, this will be difficult to prove since Mr. McGuire is unavailable to testify. (Unlike Mr. Reeves.)

Bruce Burns, a Republican State senator from Wyoming, has introduced a bill to bring back the firing squad in that state.

"Insane, Mad, Delusional"

A draft of a report from the Intergovernmental Panel on Climate Change suggests that it might be necessary to “extract vast amounts of greenhouse gases from the air” in order to prevent the global warming for which we are currently headed. The IPCC suggests some familiar methods of carbon dioxide removal such as planting more forests and carbon capture and storage (CCS)—capturing and burying emissions from power plants. CCS is untested and would be very expensive. However, the IPCC goes on to mention more radical geoengineering proposals such as injecting aerosols into the stratosphere to block solar heat. A recent climate model simulation showed that such schemes might have disastrous side-effects which could render large parts of the planet uninhabitable.

The man Americans elected as their president in 2000 reacted to the draft by calling these plans “insane,” “utterly mad,” and “delusional in the extreme.” He went on to say that:

The fact that some scientists who should know better are actually engaged in serious discussion of those alternatives is a mark of how desperate some of them are feeling due to the paralysis in the global political system.

Either that or they have a grant from Exxon-Mobil.

As both Mr. Gore and Naomi Klein have suggested, the appeal of these geoengineering schemes is that they allow us to believe that we can continue our current forms of energy consumption without having to change our behavior. Their appeal to energy companies is that they leave existing corporate power relationships in place.

You may also enjoy reading:

Catch-22

The Catalyst

This Will Not Surprise You

Surveillance Made E-Z

The most interesting thing about this year's toll increase on the Pennsylvania Turnpike is the discrepancy in the amount of the increase for those using E-ZPass and cash customers. The increase is 12% for cash and 2% for E-ZPass. This is the fourth straight year of toll increases; all four times, cash customers took the bigger hit. A trip across Pennsylvania now costs $31.38 by E-ZPass and $43.90 in cash.

Clearly the motive is to induce all drivers to use E-ZPass. It costs the state five to ten times more to process a cash transaction, either by paying a toll worker, or by photographing the license plate and sending the car owner a bill. But in the Orwellian world of the Turnpike Authority, the E-ZPass fee is called a “discount,” and Turnpike propaganda emphasizes the claim that E-ZPass reduces travel time. The Pittsburgh Post-Gazette, which never met a layoff of public employees it didn't like, jumped on the bandwagon, saying this change “makes sense for drivers and for Pennsylvania.”

Although you can save on tolls by using E-ZPass, it'll cost you. There is a $3 per year fee, and you are required to keep a minimum balance in your account. The balance starts at $35. Every time it drops below $10, you must replenish it by another $35. You can either send them cash or a check, or have it automatically deducted from your bank account or credit card. Then there is the transponder—the device on your car which identifies it as it passes through the toll booth. You must rent it for $10 if you insist on replenishing your account by cash or check, but there is no fee if you have your account replenished automatically. (Pretty clever, eh?) These are not huge amounts of money, but when you multiply them by the number of users, it's a pretty good-sized float.

How much must drivers pay for the privilege of saving the state a lot of money? This is similar to the introduction of ATMs, when the banks laid off tellers and then announced they would charge a fee for the “convenience” of using an ATM. The banks backed off, at least when you use your own bank's ATMs, but the Turnpike Authority has no competitors. Where does the money go? E-ZPass has been outsourced. The Turnpike Authority pays $91 million a year to TransCore, a subsidiary of Roper International, to run E-ZPass. If the system generates a surplus—which it obviously should—I hope the money goes to the state rather than the contractor.

One concern about E-ZPass that the Post-Gazette didn't mention is its potential for invasion of privacy. E-ZPass creates a permanent record of the travels of hundreds of thousands of citizens. These records, which are in private hands, can be used against motorists in a number of ways. The concern is not just theoretical. In 2007, NBC revealed that divorce lawyers are using E-ZPass records to prove infidelity. The article reports that Pennsylvania and New Jersey are two of the four (out of 12) E-ZPass states that claim they only release records in criminal cases. However, the article recounts a case in which a Pennsylvania lawyer used E-ZPass records to help her client prove that her husband, who claimed to be at a business meeting in Pennsylvania, was actually in New Jersey with his mistress that night. Did the reporter not notice this inconsistency?

Later this year, Pittsburgh will start using surveillance cameras to ticket drivers for running red lights. Since the state police obviously know the distances between toll booths, how long will it be before they start issuing speeding tickets based on transponder readings?

In this modern world of massive NSA surveillance, E-ZPass may seem a minor threat. In September, it was reported that the Pittsburgh Parking Authority was using surveillance cameras mounted on police cruisers to photograph the license plates of 200,000 motorists each month, creating a massive data base of Pittsburghers' locations. The stated purpose was to locate and boot scofflaws who hadn't paid parking tickets, but the data were retained for up to 30 days and were available to anyone who requested it (including the reporter who broke the story). Their reported success rate was .01%–that is, one of every 10,000 cars they photographed was booted. A month later, the Parking Authority revised its policy. They now claim they delete the data every day.

The ACLU surveyed almost 600 police departments and state agencies about their license plate tracking policies. About half responded. The federal government, not surprisingly, refused to cooperate and the ACLU is suing them under the Freedom of Information Act. Of the departments that responded, about three-quarters use license plate tracking and 85% planned to increase their use. Few departments place any substantial restrictions on how they may be used, and many allowed non law-enforcement uses such as collecting parking fines and repossession of vehicles. When used for law-enforcement purposes, hit rates are typically below .5%. Retention policies vary widely; data are retained anywhere from one day to indefinitely.

Most departments purchase license plate reading technology with grants from the federal government. Data can easily be pooled in centralized data bases, and some regional data bases are already known to exist. License plate readers are also extensively used by private companies, repo men being the most frequent users.

The technology is so cheap and widely available that it virtually invites abuse, including data mining to identify potential criminals among people not previously suspected of crimes and discriminatory targeting, such as identifying people who visit mosques. Widespread knowledge of surveillance could have a chilling effect on people's willingness to exercise their rights of free speech, assembly, religion, etc. Most jurisdictions have no policies protecting citizens from abuse of these technologies.

And this doesn't even begin to address the tracking capabilities of cell phones, GPS devices and various other electronic gadgets people carry in their cars. Finally, this morning's New York Times has an article about legal problems associated with event data recorders inside new cars that might be used, for example, by insurance companies to deny claims because the policy holder appeared to be driving carelessly.

You may also be interested in reading:

Big Brother is Watching

Catch-22

Big Brother is Watching

This paper is not about the NSA, but the more mundane surveillance that takes place in workplaces every day. Drs. Lamar Pierce, Daniel Snow and Andrew McAfee have published a new study of the effects of surveillance of employees in the restaurant business using informational technology (IT).

The setting is so-called “casual dining” restaurants. The authors don't identify the five chains they studied, but say they come from the market that includes Applebee's, Chili's and Olive Garden. Employee theft in the restaurant industry is estimated at 1% of revenue. The management of these chains installed Restaurant Guard, a computer software product sold by NCR designed to identify suspicious transactions by servers (waiters and bartenders). The sample was large: 392 restaurants in 38 states, employing over 30,000 servers, who conducted about 630,000 transactions per week.

The authors don't explain how the IT product works, which is probably a trade secret, but give examples of suspicious transactions. A voided check is regarded as suspect because one way servers steal is to void the check after the customer has paid and pocket the money.

The study uses an interrupted time series design. The main problem with before-after designs is the possibility that some unknown outside events coincide with the treatment and influence the results. In this study, the IT was installed on a staggered basis over a two year period (March 2010 to February 2012), protecting the results from what the authors call “week-specific shocks” (but not from long-term economic trends).

The researchers had no control over how the restaurants used the information about suspicious transactions. It is their understanding that they usually informed servers when Restaurant Guard was installed in order to take advantage of its deterrent effect. The restaurants agreed to apply the software retroactively to the time before it was installed, which allowed the researchers to measure changes coinciding with the intervention. Here are the main results:

• Theft losses averaged only $108 per restaurant per week before the intervention, and were reduced by 22%, or $23 per week. Either there was not much theft or the IT was not detecting all of it. (The authors assume the latter.)
• The impact of IT monitoring on total revenue was substantial. Revenue from food sales increased 7%, or $2975 per restaurant per week. Drink sales increased 10.5%, or $927 per restaurant per week.
• Tip percentage could only be measured on credit card transactions, so we must assume that the results were similar when customers paid cash. Tip percentage was basically unchanged. It increased by .3%, going from 14.8% of the bill before the intervention to 15.1% after.
• The researchers analyzed the results for individual workers. The effect of the surveillance was fairly uniform across workers. There were no significant differences in behavior between “known thieves”—servers whose behavior was flagged as suspicious—and “unknowns” who had not behaved suspiciously. There was more attrition among the “known thieves,” but it was seldom traceable to specific incidents, suggesting that they were leaving voluntarily rather than being fired.

If Restaurant Guard was not identifying much theft and few workers were fired, why did revenue go up sharply? The authors speculate that before the IT intervention, workers were “multi-tasking;” that is, both working and stealing. The software had the psychological effect of increasing fear of detection and discouraging theft. The workers compensated by increasing their efforts to make sales—for example, by asking customers whether they wanted another drink—in order to compensate for lost theft income by increasing their tip income.

The circumstances suggest the possibility of a Hawthorne effect, or reactivity, in which participants change their behavior due to the awareness that they are being observed. This effect might disappear over time as they gradually forget about the intervention. The authors compared changes in behavior during the first three months following the intervention and found no systematic trends. I'm not sure that three months is long enough to measure the decline of a Hawthorne effect.

The other main conclusion the authors draw from the study follows from the relative absence of individual differences among workers, whether “known thieves” or “unknowns.” The conventional wisdom is that you protect yourself from theft by hiring honest workers and firing those who turn out to be dishonest. But they conclude that employee theft is influenced more by environmental factors—in this case, surveillance—than by worker traits.

This study, and the role of social scientists in conducting it, makes me uncomfortable. Restaurant workers are some of the most dramatically underpaid workers in our society. The minimum wage for servers is $2.13 per hour. The Restaurant Opportunity Center, which advocates for better working conditions in restaurants, reports that the average restaurant worker earns $8.89 per hour (including tips), for a total of $15,092 per year; 89.7% don't have health insurance; and 87.7% don't have paid sick days. While theft is an inappropriate response to this situation, it is not surprising that they steal and that some of them feel justified in doing so.

The authors, all business school professors, adopt a somewhat self-congratulatory tone at having induced these servers to become more productive—to stop stealing (if they were actually stealing) and work harder for the same low wages. The increased value of their labor went almost entirely to the restaurant owners. Tip percentage increased by only .3%. The main way these servers profited was from the fact that their tips were based on larger checks.

The authors did not attempt to measure this increased tip income; in fact, there's no evidence that they even cared about it. It's impossible to determine tip income per server accurately from the data they provide. I did some rough back-of-the-envelope calculations making what I thought were reasonable assumptions and estimated that the average server in the study, who worked 22 hours per week, netted about $15 a week in additional tip income. I would hesitate to call this a “raise,” since it was obtained by working harder.

This study is consistent with theory and research in social science that suggests that one of the effects of new technology is to increase inequality. New technologies, such as computers, increase the income of the wealthy, who are able to take advantage of them, relative to those who are unable to afford the technologies or who are not trained to use them.

It's unfortunate that these social scientists are not interested in looking at the causes of illegal behavior among the wealthiest 1% of Americans. I guess there's no corporate financial support for that kind of research.

You may also be interested in reading:

Raising the Floor

Catch-22

Catch-22

There was only one catch and that was Catch-22, which specified that a concern for one's safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane, he had to fly them. If he flew them, he was crazy and didn't have to; but if he didn't want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

                                                                 Joseph Heller, Catch-22 (1961)

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which regulates intelligence surveillance inside the United States. It required the government to get a warrant from the FISA Court in order to monitor Americans' communications with suspected terrorists living abroad. (In practice, the FISA Court too often rubber stamped these government requests.) Shortly after 9/11 President Bush began violating the act by authorizing warrantless wiretaps of the telephone and email conversations of American citizens. In 2008, Congress retroactively ratified Bush's illegal behavior by passing the FISA Amendments Act, which expanded the Attorney General and the Director of National Intelligence's ability to spy on international communications.

The 2008 amendment, specifically §1881a, revised FISA in two ways. The government is no longer required to demonstrate probable cause that the target is an agent of a foreign power, and the government is not required to specify in advance the communications that will be spied upon. The Obama administration not only continued the Bush policy of warrantless surveillance, but what indirect evidence we have suggests that it has been increased considerably.

As soon Bush signed the amendment, the ACLU challenged its constitutionality on behalf of a coalition of lawyers, journalists, and human rights activists (Amnesty International, et al v. Clapper). The ACLU argued that it interfered with the First Amendment guarantee of free speech and Fourth Amendment protection against unreasonable searches and seizures. There is ample precedent to show that the Fourth Amendment was specifically intended to prevent such massive eavesdropping on persons not suspected of any crime.

In rebuttal to earlier charges of illegal surveillance, the Bush Justice Department developed a Catch-22 defense. In order to challenge a law, you must prove that you have standing; that is, you must show that you have been harmed by the law. This ordinarily good idea is intended to prevent freelancers from contesting any law they happen to disagree with. The Bush Administration argued that since the surveillance was secret, no one could prove that they had been targeted. Therefore, no one had standing to sue to overturn the law, and it could not be challenged. This argument, now recycled by the Obama administration, was unanimously rejected by the U. S. Court of Appeals, but the Justice Department appealed their decision to the Supremes.

If the wiretaps are secret, how do you know whether you have been victimized? There are some common sense answers to this question. For example, if you are a lawyer who has clients living abroad that are accused of terrorism, you can safely assume your international calls are recorded. In fact, some of the plaintiffs argued that they suffered the additional harm of having to go to considerable expense and inconvenience in order to interview their clients in person.

Yesterday, in a 5-4 decision, the five more conservative Supremes dismissed the suit, ruling that the plaintiffs had no standing to contest the law, and effectively insulating it against any future challenge (unless the Obama administration is foolish enough to try to use information gathered under §1881a in court). Justice Samuel Alito, writing for the majority, said the plaintiffs had failed to show that the threatened harm was “certainly impending.”

[Plaintiffs] have no actual knowledge of the Government's §1881a targeting practices. Instead, [plaintiffs] merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a . . .

The four less conservative Supremes dissented. Justice Stephen Breyer said:

In my view, this harm is not “speculative.” Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen . . .

Breyer objected to Alito's “certainly impending” standard. He pointed out that the court has often granted standing to plaintiffs who predicted but could not prove that they would be harmed by future events, as when homeowners are allowed to sue to prevent future environmental damage to their property.

Glenn Greenwald summarized the decision as follows:

When the new 2008 FISA eavesdropping law was passed, all sorts of legal scholars debated its constitutionality, but it turns out that debate was—like the Constitution itself—completely academic. As both the Bush and Obama administrations have repeatedly proven, they are free to violate the Constitution at will just so long as they do so with enough secrecy to convince subservient federal courts to bar everyone from challenging their conduct.

I've recently been reading Seth Rosenfeld's Subversives: The FBI's War on Student Radicals and Reagan's Rise to Power, which is about extensive surveillance of Americans engaged in peaceful constutionally-protected protest, primarily against instutional racism and our illegal invasion of Vietnam. It seems that we have entered a new era of routine violations of constitutional rights.