We Apparently Need Another Sign at the Airport*

In re: Idaho Republican Senator Larry Craig, who, in case you didn’t know, got involved in a little disturbance of the peace in a men’s room at Minneapolis-St. Paul International Airport:

Here’s one question I have not seen asked or answered anywhere. Are there big signs in the Minneapolis Airport’s restrooms saying “NO GAY SEX” or “NO OBSCURE GAY COME-ONS?”

There are lots of signs all over airports prohibiting various activities. No smoking. Do Not Enter. Do Not Leave Bags Unattended. The White Zone is for Loading and Unloading Passengers Only. I happen to know that the Minneapolis airport was one of the first to ban smoking, because my mother tried to light up during a trip to visit her sister and was escorted outside. I think she was puffing away in a phone booth when she called to tell me of this outrage.

So why not one more sign? Craig’s arrest didn’t take place in a bathroom in a public park that had become a notorious meeting place. One could argue an undercover cop might belong in there to address a widely-known problem. But many people arriving at the airport in Minneapolis aren’t from Minneapolis. How are they supposed to know that particular restroom is a focus of investigation?

Instead of making some poor cop sit on the can for 20 minutes waiting for some odd toe-tapping to begin, why don’t they station him outside, in uniform? As we filed in, he could say, “If I hear any hubba-hubba from you gents, I’m busting down the door.” Wouldn’t that be a more effective deterrent?

We prohibit sex in airport restrooms primarily to make people like me feel safe going there to conduct the usual #1 and #2. If I was concerned about bumping into a couple of guys doing each other, I think I’d feel much safer with the uniformed cop outside the door. That would represent an explicit statement of community standards.

The whole point of using an undercover cop is that he not be noticed. He’s not trying to deter the activity, but instead to make sure the potential violator feels comfortable preparing to commit the crime, the better to entrap him.

Basically, sex in airport restrooms is an environmental crime, like smoking, playing the radio too loud, or acting weird in general. Do they use undercover cops to bust smokers? The one who nabbed my mother was pretty open about it.

Another, more political question: Who does presidential candidate Mitt Romney think he’s kidding? Sen. Craig was until yesterday a co-chair of Romney’s campaign.

In his interview on CNBC’s Kudlow & Company (which will air later this afternoon), Mitt Romney had some sharp words for Sen. Larry Craig, who had endorsed the former Massachusetts governor’s presidential campaign and was his Idaho chairman. “Once again, we’ve found people in Washington have not lived up to the level of respect and dignity that we would expect for somebody that gets elected to a position of high influence. Very disappointing. He’s no longer associated with my campaign, as you can imagine… I’m sorry to see that he has fallen short.”

The Anti-Terror Argument for Drug Legalization

Stumbled across this column in the Financial Times. The author, Willem Buiter, is a professor at the London School of Economics. He has two arguments for drug legalization, which he describes as “principled” and “pragmatic.” I’ll reverse their order and start with one of the more compelling pragmatic arguments:

Another important argument for legalising, in particular, all cultivation of poppy and of coca (and their illegal derivatives) is that this would take away a vital source of income and political support for terrorist move- ments, including the Taliban and al-Qaeda in Afghanistan, and Colom- -bia’s Revolutionary Armed Forces (Farc) and various paramilitary groups.

The United Nations estimates that opium production in Afghanistan grew to more than 6,000 metric tonnes last year with a value exceeding $3bn (£1.5bn). It is the origin of more than 90 per cent of the world’s illegally consumed opiates.

A significant portion of the profits flows to the Taliban, who act as middlemen in the opium business. They combine extortion and threats of violence towards the poppy farmers with the sale of protection to these same farmers against those who would destroy their livelihood, mainly the Nato allies and the Afghan central government.

Following legalisation, theallies in Afghanistan could further undermine the financial strength of the Taliban and al-Qaeda by buying up the entire poppy harvest. If a sufficient premium over the prevailing market price were offered, the Taliban/al-Qaeda middle- man could be cut out altogether, and thus would lose his tax base. Winning the hearts and minds of poppy growers and coca growers is a lot easier when you are not seen as intent on destroying their livelihood.

(snip)

If opium and heroin were legalised, the allies’ stash could be sold to regulated producers/distributors of opium, heroin and other formerly illegal poppy derivatives. Our chemical and pharmaceutical industries, and indeed our cigarette manufacturers, would be well-positioned to enter this trade. The profits made by the allies on the sale of the stash could be turned over to the Afghan government. It surely makes more sense for the government to tax the poppy harvest than for the Taliban to do so.

Buiter’s “principled” argument is familiar, but no less persuasive.

New Civil Libertarians?

Radar working overtime, I’ve noticed that the trials of Lewis Libby, Conrad Black and the Duke University lacrosse players have generated new recruits to the cause of civil liberties – a cause that used to be embraced by liberals and the news media, but has been an orphan lately for all save those incarcerated at Gitmo. Well, seeing a political hero like Libby and a business hero like Black fall into the grasp of federal prosecutors has awakened the right wing to the need for due process — and the government’s faltering observance of it.

Best recent example is writer Mark Steyn’s blog post of last week reflecting on the Black trial:

Here’s just a random half-dozen reforms the US justice system would benefit from:

1) An end to the near universal reliance on plea bargains, a feature unknown to most other countries in the Common Law tradition. This assures that a convicted man is doubly penalized, first for the crime and second for insisting on his right to trial by jury. The principal casualty of this plea-coppers’ parade is justice itself: for when two men commit the same act but the first is jailed for the rest of his life and dies in prison while the second does six months of golf therapy and community theatre on a British Columbia farm and then resumes his business career, the one thing that can be said with certainty is that such an outcome is unjust.

Silent Ethics in City Hall

City Attorney Rocky Delgadillo’s various breaches of the public trust prompted an amusing blog post by City Ethics Commissioner Bill Boyarsky, who was the best reporter and editor the LA Times ever had covering City Hall.

He writes about the “gag rule” that prevents him from saying anything about Delgadillo’s use of staff as go-fers and babysitters, his protracted violation of state law that requires all drivers to have car insurance, his lack of honesty regarding how his city-issued vehicle was damaged, which allowed him initially to charge taxpayers to get it fixed.

It’s apparent Boyarsky the retired journalist is chomping at the bit to say what he thinks about the city attorney’s overweening sense of entitlement. But the gag rule is more than just an inconvenience for a bigmouth. The way Boyarsky describes it, the gag rule is like a contract among insiders not to acknowledge the obvious:

I interpret it this way: Suppose a city official drove a city car to a Sunday baseball game, got drunk and smashed into an MTA bus. More than 250 people witnessed the crash, including 50 on the bus and it was a huge story on TV and in the papers. Then suppose I was asked if I thought the official violated ethics rules governing the use of city cars. Under the rule, I could not comment, no matter how many people saw the crash, no matter how big a story it was. I could not say a thing, even if I had been on the bus, and a reporter tracked me down to the hospital where I was being treated for my injuries.

Who is served by this? Not the public. Not the victims of any alleged violations. No, this system, purportedly designed to enforce unethical behavior by high city officials in fact facilitates it by almost immediately muting public outrage, redirecting it into an airless dark realm, where deals get cut far from public view.

More Boyarsky:

The gag rule is not only stupid, but it’s against the public interest. The chance of a commissioner being disqualified by a comment is remote. Most ethics violations reach us for a vote after attorneys for the accused and the ethics commission staff have settled them behind closed doors. We commissioners are presented with a settlement agreement that has few details. We generally approve the settlement. Usually, discussion is limited.

The gag rule is a big reason why many people consider the ethics commission irrelevant. When allegations of ethical violations are splashed on the news and are being discussed from the harbor to the Valley, ethics commissioners should be able to say more than “no comment.”

So true. In about six months, there will be announcement: The City Attorney and the Ethics Commission have agreed on a settlement. He’s going to pay a fine! Your invitation to the fundraiser to defray the cost of the fine is in the mail. The usual arm-twisting of city contractors and the city’s legal community will then ensue.

In the meantime, none of Delgadillo’s colleagues will have to say anything in response to the public. “It’s in the hands of the ethics commission. Until they act, it wouldn’t be appropriate for me to comment,” will be the refrain.

Look…I’m the last guy who would want to see anyone railroaded. It’s good to have a process that permits a dispassionate look at the facts. But Boyarsky describes a process that frustrates any attempt to hold high city officials accountable to the public’s standards of common sense. People are irate about what Delgadillo has already admitted to. Why does he deserve protection from the public’s wrath?

More to Boyarsky’s point: He was nominated to the Ethics Commission because of his experience with the byways of Los Angeles’ government. What is the point of bringing him into the process of policing City Hall ethics, and then putting a muzzle on him?

(In the same post, Boyarsky is funny in describing his battle of wits with a couple of Times reporters who used techniques Boyarsky should have recognized to get him to say more than he should have. Read the whole thing.)

A Free Man in Ronkonkoma

The call came in while I was having a beer at the Brickhouse in Ronkonkoma, N.Y., a restaurant attached to the Holiday Inn near the Long Island-Islip airport. A panel of the Ninth Circuit Court of Appeals has ruled I can stay out on bail while my 2006 conviction is appealed.

When I woke up this morning, I saw this item on LA Observed. Then I knew for sure it wasn’t just a jet lag dream. As Kevin puts it, my co-defendant and I can “stay home.”

As I’ve learned over the past few months, getting bail was by no means a certainty. The burden of proof was on me to demonstrate that my appeal had merit. But the appellate panel found that my appeal

raises a ’substantial question’ of law or fact that is likely to result in reversal, an order for a new trial, or a sentence that does not include a term of imprisonment, on all counts on which imprisonment has been imposed.

I’m here in Long Island on business.  It hasn’t really sunk in. This is my first really good legal news since I wandered into this labyrinth nearly three years ago. After a period like that, you start to doubt your grasp of reality. It was exquisite to be able to tell my wife, my son, and my parents what had happened. The waiting has been driving all of us bats. (Except my son, who has been steadfast in his belief that I will eventually win this case. He kept promising me he is psychic, that he knew. Score one for Vinny.)

When I get back to California, I’ll have a lot of celebrating to do.

Obviously, this is not the end of anything. There is still an appeal to win, and despite the extremely encouraging language of the panel’s decision, it does not guarantee the outcome. The appeal process will continue for a year, maybe two. The prosecutors and FBI worked hard on this…accomplishment?…I’m sure that’s what they’d call it…so they’re not about to give up. They’ll fight very hard to protect what they won in district court last year. They fought hard to make sure I would serve all of my sentence before the appeal was decided, which would have rendered the practical effect of a successful appeal moot. (Think about that.)

Okay, time to go to work. A nice normal day awaits. A long meeting here, then a flight to Baltimore; dinner tonight and meetings there tomorrow; a little afternoon time exploring that city, which I’ve never seen; then a long flight home. Where I get to stay, at least for awhile, and according to my allegedly psychic son, a long while. Ah, freedom.

Delgadillo Agonistes*

I’m sure it feels really unfair right now to be City Attorney Rocky Delgadillo.

I mean, like, there’s no proof that his wife with a suspended license drove his city-owned Yukon, no proof that she had an accident, no proof that the repair bill wasn’t appropriately paid by taxpayers.

Like noted civil libertarian Bart Simpson always says,

I didn’t do it. Nobody saw me do it. You can’t prove anything.

But people are jumping to conclusions anyway.

And he must be wondering, why does it have to be now that the LA Times starts imitating the Daily News, with its “Rocky Watch” gimmick? (Although he should be relieved. It’s only on the editorial page. More people watched the Tony Awards than read the LA Times editorial page.)

Just to give Rocky a momentary respite from the gloom that can befall an unfairly accused man, I’ll call up a story from the years when I drove one of those E-plated government cars.

It wasn’t a Yukon. It was a Linda Blair-vomit green Dodge four-door sedan. I used it during part of my time in the office of LA County Supervisor Ed Edelman. It was assigned to me after I’d worked there about two years.

I was living in an old apartment building at the edge of Hancock Park, a block off La Brea, behind a bank. Even though we weren’t supposed to, I parked it at night in the bank’s parking lot, because street parking was rarely available and, well, I had an “E” plate, and the lore back in the early 80s was that you could park an “E” plated car wherever you wanted. Whenever one of my colleagues took me to lunch in those days, they’d always park in the red zone,right in front of the restaurant. When I was new and naive, I’d ask, Aren’t you going to get a ticket? “Nah,” they answered. “I got an E plate.”

So, now, every night and all weekend, there was this ugly green Dart parked in the area of the bank parking lot that was used by all the tenants in this building.

The building was owned by an older woman, who had an adult grandson living with her. This grandson was a serious weed addict. The landlady’s apartment was next to mine. She didn’t know what her grandson liked to do, so he’d usually sit outside on the stoop when he wanted to light up, usually after she went to bed. If my living room window was open, his smoke came blowing in.

One day, I slept in — maybe I was sick. I got in my car to go to work around noon. Grandson was taking out the trash and noticed me opening the door.

“Hey man…that’s your car?”

“Yeah. The County gave it to me to use for business.”

“Aw man….” He shook his head and laughed. “I was sure it was a narc driving that car. I haven’t smoked in weeks ‘cuz I didn’t know who drove that car. I’ve been going crazy.”

I hadn’t really noticed that he’d stopped his nightly al fresco jaybird, but I did notice the smell was back the very night of the day of our conversation.

So, Mr. Delgadillo, I offer my story as the beginning of your cover story. The Mrs. wasn’t driving the Yukon for her convenience. Oh no. It was a drug prevention thing. She’d heard there were a bunch of people smoking pot … er, crack, yeah, that’s the ticket…and she realized they’d stop if she pulled up in a city car. Why, there had been reports of drug use at … um … hairdressers, nail salons, grocery stores …

*Update:  In an awkward press conference late today, Delgadillo admitted he let his wife drive the city-owned Yukon, and that she was the one who crashed it. He went the full apology route.

After avoiding reporters for more than a week, Los Angeles City Attorney Rocky Delgadillo on Monday accepted responsibility by repaying the city for repairs for a 2004 accident in which his wife crashed his city-issued GMC Yukon into a pole.

Delgadillo said he issued a check Monday to the city to pay for the $1,222 repair bill, which was initially completed at taxpayer expense.”

I’m saddened that my wife’s life has become a public issue,” Delgadillo said during a late afternoon news conference at his City Hall office.

“I mishandled the situation, and I apologize,” he said. “Again, I’m sorry and I take full responsibility.”

Delgadillo admitted that he allowed his wife, Michelle, to use the city-owned GMC Yukon “on rare occasions.”

How did the city attorney think he could avoid this outcome?   It’s a fair surmise that his one-week delay in having this press conference entailed a search for Plan B.  What else could he have thought would work to get him out of this jam?

This comment suggests he didn’t think it was any of the public’s business:

“Like any husband, I love my family and I have tried to keep them out of the public eye,” Delgadillo said. “But as an elected official, I am accountable to the public, and I realize that I should have spoken up earlier. That was a mistake.”

Well…we’re certainly on our way to the creation of a political aristocracy, insulated from the consequences of any of their decisions.  The evidence is everywhere.  Perhaps Delgadillo thought he was there already.

Persecuting Pain*

We need to figure out a new way for American society to resolve ambiguous issues — an alternative to federal prosecutors making their bones by tossing individuals in prison via smear techniques designed to inflame rather than enlighten juries.

What prompted me to think about this was the cover story of this Sunday’s New York Times magazine, “When is a Pain Doctor a Drug Pusher?”  Author Tina Rosenberg tells two distinct stories here:  One is about Dr. Ronald McIver, a physician whose address is now a medium -security prison in Butner, North Carolina.   The other is about the never-ending quest people in severe pain go through to find relief, a quest that can inadvertently bring them or their doctors into gray legal areas. 

Certainly there are crooked doctors who write fraudulent prescriptions for opiates that drug addicts abuse and drug dealers sell.   Nobody objects when prosecutors pursue them.  It does not appear to me that Dr. McIver was one of those crooked doctors. As Rosenberg writes,

McIver was a particularly aggressive pain doctor. Pain can be measured only by how patients say they feel: on a scale from 0 to 10, a report of 0 signifies the absence of pain; 10 is unbearable pain. Many pain doctors will try to reduce a patient’s pain to the level of 5. McIver tried for a 2. He prescribed more, and sooner, than most doctors.

Perhaps knowing his intolerance for his patients’ pain, some unscrupulous people posing as patients tricked McIver into giving them drugs illegitimately, which they abused or sold.  There’s no evidence McIver ever recognized this or intended to aid them in their criminal schemes.  He comes off as a little credulous. But on at least one occasion, his suspicions about a particular patient led him to call the police to ask for background. 

Later, of course, prosecutors successfully twisted that call into evidence against him.  The logic — very familiar to me now — went like this:  You called the cops about this patient. Yes. What happened next?  The cop never called me back.  What happened next?  I assumed the lack of a return call meant my suspicions were unfounded, so I continued to prescribe medicine to this patient.  Ladies and gentlemen of the jury, you see what we have here.  Dr. McIver knew there was a problem with this patient.  Did he stop giving him dangerous narcotics?  No, he just went right on doing it.  The fact that the law officer was unable to reach him is irrelevant.  By this act, Dr. McIver demonstrated his criminal intent to provide drugs illegally.

Others of his patients were prescribed high doses of powerful opioids.  This is not necessarily a sign of abuse. As Rosenberg takes pains to explain, high levels can be safe if the patient’s dosage is increased gradually through a process called “titration to effect.”  McIver was one of many pain specialists who believed, it appears compassionately, that this was the correct course for some patients.  But prosecutors were able to make the jury quiver, apparently, at the sheer numbers associated with these dosages. 

One of McIver’s patients died with high levels of an opioid in his blood.  The drugs didn’t kill him — a heart problem did it.  But the patient’s death was a good data point in the case the government was able to build against him, a ghost story to frighten jurors.

To find out more about the blow-by-blow of McIver’s outrageous prosecution, please read the story.  For the remainder of this post, I want to focus on the bigger picture:

No one has analyzed the various prosecutions of pain doctors, so it is hard to determine how many of them look like McIver’s. The D.E.A.’s list is incomplete. There have been many cases like McIver’s, and most of these cases are not listed on the D.E.A.’s Web site. (One possible reason for this omission is that some of these cases are still being appealed.) And many cases that do appear on the list detail only vague crimes: convictions for prescribing “beyond the bounds of acceptable medical practice” or “dispensing controlled substances . . . with no legitimate medical purpose” — which is how the agency will most likely describe the McIver case if it ever includes the case on the list.

The D.E.A. claims that it is not criminalizing bad medical decisions. For a prosecutable case, Caverly, the D.E.A. officer, told me: “I need there to be no connection of the drug with a legitimate medical condition. I need the doctor to have prescribed the drug in exchange for an illegal drug, or sex, or just sold the prescription or wrote prescriptions for patients they have never seen, or made up a name.”

I read this statement to Jennifer Bolen, a former federal prosecutor in drug-diversion cases who trained other prosecutors and now advises doctors on the law. “That’s a good goal,” she said. “I don’t think they have yet reached that goal.” McIver’s case had no such broken connection, and in many cases the government has not produced testimony of intent to push drugs, providing evidence only of negligence or recklessness. In 2002, Bolen was one of the authors of a Justice Department document intended as part of a basic guide to prosecuting drug-diversion cases. The document, in the form of a reference card, dispenses with any need for a broken connection. It suggests that prosecutors need not prove a doctor had bad motives, that to be within the law a doctor had to prescribe “in strict compliance with generally accepted medical guidelines” and that doing an abbreviated medical history or physical examination is “probative” of lack of a legitimate medical purpose. The reference card was on the Justice Department’s Web site but was pulled, according to the Pain Relief Network, which provided the card to me. Bolen told me: “I have no problem saying that if the card was all there was, it was not acceptable. But it isn’t all there was.” She described the card as one piece of a more thorough training, but added that many prosecutors followed its theories.

Prosecutors are in essence pressing jurors to decide whether an extra 40 milligrams every four hours or a failure to X-ray is enough to send a doctor to prison for the rest of his life. One doctor, Frank Fisher, was arrested on charges that included the death of a patient taking opioids — who died as a passenger in a car accident. A Florida doctor, James Graves, is serving 63 years for charges including manslaughter after four patients overdosed on OxyContin he prescribed — all either crushed and injected their OxyContin or mixed it with alcohol or other drugs. “A lot of doctors are looking for safe harbor,” Caverly said. “They want to know as long as they do A, B, C, D or E, they’re O.K.”

The D.E.A. once thought that this was not an unreasonable desire. A few years ago, it worked with pain doctors to develop a set of frequently asked questions that set out what doctors needed to do to stay within the law. The FAQ recommended, for example, that doctors should do urine tests and discuss a patient’s treatment with family and friends. In October 2004, the FAQ were erased from the agency’s Web site. One reason was that one of their authors, who is a doctor, was about to use the list to testify on behalf of William Hurwitz, a pain doctor in McLean, Va. (Hurwitz was convicted on 50 counts of drug trafficking in 2004. His conviction was overturned, and he was recently retried and convicted on 16 lesser counts. He is awaiting sentencing.)

Caverly acknowledged the Hurwitz trial was one reason the FAQ were pulled, but said there were other reasons. He said such a checkoff list could tie the D.E.A.’s hands. “Some doctor’s going to pull that list of dos or don’ts out and say: ‘See, I’m O.K. I did these 10.’ But there’s a new wrinkle there — an 11th one the doctor didn’t do,” he said. Most important, he went on to say, the FAQ had stepped over the line to insert the D.E.A. into issues of medical practice. “We have to stay in our lane,” he said. “Those definitions are the professional community’s — not the D.E.A.’s.”

In a perfect world, such reasoning would make sense. But the agency is defining issues of medical practice in dramatic fashion — by jailing doctors who step over the line. It would not seem to be bothering, however, to draw the line first.

The dilemma of preventing diversion without discouraging pain care is part of a larger problem: pain is discussed amid a swirl of ignorance and myth. Howard Heit, a pain and addiction specialist in Fairfax, Va., told me: “If we take the fact that 10 percent of the population has the disease of addiction, and if we say that pain is the most common presentation to a doctor’s office, please tell me why the interface of pain and addiction is not part of the core curriculum of health care training in the United States?” Will Rowe, the executive director of the American Pain Foundation, notes that “pain education is still barely on the radar in most medical schools.”

The public also needs education. Misconception reigns: that addiction is inevitable, that pain is harmless, that suffering has redemptive power, that pain medicine is for sissies, that sufferers are just faking. Many law-enforcement officers are as in the dark as the general public. Very few cities and only one state police force have officers who specialize in prescription-drug cases. Charles Cichon, executive director of the National Association of Drug Diversion Investigators (Naddi), says that Naddi offers just about the only training on prescription drugs and reaches only a small percentage of those who end up investigating diversion. I asked if, absent Naddi training, officers would understand such basics as the whether there is a ceiling dose for opioids. “Probably not,” he said.

There is another factor that might encourage overzealous prosecution: Local police can use these cases to finance further investigations. A doctor’s possessions can be seized as drug profits, and as much as 80 percent can go back to the local police.

I think about people in my family who are, or were, in terrible pain.  Or who might be in the future.  I think of their doctors, reading about McIver and other doctors similarly persecuted.  It was bad enough when doctors’ treatment decisions were based on fear of civil malpractice litigation.  But now the federal prosecutors have joined the party, with all their incentives to win cases no matter what, and with punishments at their disposal that can destroy careers, even lives. 

It’s one thing for a doctor to wear a brave face and put his or her patient first in the face of potential lawsuits. But prison?  The suffering patient will just have to understand. 

The criminalization of gray-area medical decisions is the ultimate empowerment of ignorance, fear and innuendo as the driving forces of our civilization.  Despite miraculous medical and scientific advances, as long as we give power to prosecutors to go “booga-booga” to juries, some of those advances will be shelved. 

There are countless examples of this trend, but this one really turned my stomach.

*Edited and retitled, 6/18/07

If Sheriff Baca is a Scientologist, Wouldn’t That Be News?

I drafted a long post over the weekend about the crazy Paris Hilton story, which I happen to think is real news. Maybe my (possibly) imminent incarceration is a factor in how I see this story — just like a pregnant woman suddenly notices babies everywhere, I notice people in handcuffs — but I don’t think so. To me, it’s a political story, about Sheriff Lee Baca.

To put things in perspective: Los Angeles County is the nation’s largest county, by a lot. It has more than 10 million people, which is at least 4 million more people than the second-largest county (Cook County, Illinois). Los Angeles County would be the ninth-biggest state in the U.S., coming in between #8 Michigan and #9 Georgia. More than three percent of all Americans live in Los Angeles County.

There are three county-wide elected positions: District Attorney, Assessor and Sheriff. The Assessor exerts little authority — Proposition 13 took care of that. But the DA and the Sheriff have to be counted as two of the most powerful elected officials in the United States. Sheriff Baca has more constituents than Rudy Guiliani had when he was mayor of New York City, more than Mitt Romney had when he was governor of Massachusetts, more than John McCain has as senator from Arizona, more than John Edwards had when he was senator from North Carolina. Gov. Bill Richardson of New Mexico is running for president, and his state less than one-fifth the size of LA County. Bill Clinton’s only relevant experience for being president was being governor of Arkansas, which is less than a third the size of Los Angeles County.

Am I making my point? Over-making it? Lee Baca is a big deal.

And yet, during the reporting of his decision to release Paris Hilton from jail, none of the mainstream media saw fit to report that he received a campaign contribution from Hilton’s grandfather until about two days after a “Pop Politics Scandal Style” site called Radar mentioned it. The LA Times’ coverage was very “oh by the way,” paragraph 13 of an update on Sunday focused mostly on Hilton’s decision not to appeal her sentence.

Not mentioned in any mainstream media as of Sunday was the suggestion that Sheriff Lee Baca is somehow affiliated with the Church of Scientology. I first saw this on a Scottish site called Monsters and Critics, which linked to the documentary evidence to support the claim, a photo of Baca riding the Scientology float (supposedly) in the Hollywood Christmas Parade, which ran on this site. Kevin Roderick put the photo up on LA Observed this afternoon. Here it is:

Has anyone asked Baca or his staff about this? I don’t know of any connection to the Hilton story — which is why I hesitated in publishing my post — but now that Kevin has put it out there, I wonder how long it will take before the LA Times gets around to asking him about his ties to Scientology, or investigating those ties.

Here’s the Google link to a news search under the terms “Baca” and “Scientology.” As of now, there are only three stories that match, the same three I saw on Saturday night. Two of them I’ve linked to above. The third is a British news story focused mainly on the theory that Paris Hilton is a claustrophobic. Here’s what Google shows using the same search terms to look through blogs. And here is what you find if you Google “Baca” and “Narconon,” which is the Scientology-sponsored drug treatment center.

From that last search, I came across this item from a blog by cult “expert” Rick Ross. It’s a year old.

This month Baca was featured within the magazine International Scientology News (Issue number 33) gushing about how wonderful the founder of Scientology was and his supposed precepts remain.

The following statement is seemingly attributed to Sheriff Baca complete with photo within the Scientology publication. A copy of the quote as it appears is posted a Web site administered by David Touretzsky, a professor at Carnegie Mellon University and critic of Scientology.

“The story of L. Ron Hubbard can be found in the time to understand the information that he provides, the wisdom that it brings to dealing with life’s needs and therein the real story can be told. And the tens of thousands, hundreds of thousands, millions of people, who have been exposed to what his ideas are — it’s all about goodness, it’s all about improving yourself, it’s all about finding a way to empower other human beings. It’s reverence for life. Those are important things.”

Can Baca be so ignorant and poorly read that he doesn’t know about the actual teachings of L. Ron Hubbard and only understands what Scientology’s public relations department churns out?

Does he think that Tom Cruise going “crazy” is proof of “improving yourself” through Scientology?

Or is it that the sheriff has somehow benefited through his association with the controversial church many call a “cult”?

Perhaps Scientology’s rich patrons have contributed to his political campaign fund?

Maybe the sheriff should do a little more reading about Scientology before he agrees again to stand up for its programs and lend his name and the weight of his elected office to its schemes.

Okay, so Rick Ross is himself controversial — to Scientologists especially.

Nonetheless, to me, this is more than enough smoke for the LA Times or one of the other major news outlets in Los Angeles to start trying to figure out what the Sheriff’s connection to this group and its affiliates amounts to.

More to the original point, the Hilton campaign contribution should have been mentioned on day one of the Hilton coverage, not day three, and it should have gotten our media curious about any other connections between Hilton’s legal and business advisers and the Sheriff’s campaigns and other endeavors.

Here’s one question I’ve yet to see addressed in any of the coverage of Hilton’s ill-fated release: Who asked for it? Did the Sheriff’s office just do this on their own after observing her breakdown, or did someone from Hilton’s camp request it? If so, who? Through whom?  They’ve implied it was the Sheriff’s decision without ever really saying so, exactly. Which makes me think what they’re implying is the opposite of what happened. It usually works that way.

All weekend long I got to hear the media bemoaning the state of…uh, itself…for covering Paris Hilton rather than Iraq or other weighty matters. Paris herself played into the media’s shame with her statement Saturday.

“I must also say that I was shocked to see all of the attention devoted to the amount of time I would spend in jail for what I had done by the media, public and city officials. I would hope going forward that the public and the media will focus on more important things, like the men and women serving our country in Iraq and other places around the world.”

How she plays the mainstream press like a fiddle — she or her well-manicured flack.  But there is a potentially huge political story hiding in plain sight in the middle of this celebrity gossip fiesta, and I don’t know why it’s being ignored.

I pray I’m wrong, and that the remnants of the LA Times‘ investigative team are on this story right now. If so, don’t make us wait six months for you to write a giant Pulitzer turd. Just give us the answers when you find them: Is the Sheriff of the biggest county in the United States a Scientologist? And what was his involvement in getting Paris Hilton released from jail?

P.S. There is a history of entertainment figures exerting sway over the business of Los Angeles County government. Anyone remember Dr. Thomas Noguchi? “Coroner to the Stars?” Actually, the stars feared him. After he told the public about how alcohol contributed to the deaths of actors William Holden and Natalie Wood, Hollywood’s establishment put pressure on the Board of Supervisors in 1982 to dump him. Because he retained civil service status, the Board couldn’t fire him, so they demoted him. He fought for his job in what must be the most widely covered civil service hearing in history. He eventually lost. As a reporter, I covered the appeal, which was run like a trial.

“Each Day is a Gift” — Advice from Tony Soprano*

That’s what Tony Soprano said after miraculously surviving a gunshot in the belly as he was leaving the hospital in the third episode of the sixth season of “The Sopranos,” which ended last night. He said that, and then went about proving over the remaining 18 shows that the gifts come with strings attached, and some of them are pretty lousy.

I’ve been leading that one-day-at-a-time lifestyle ever since my 15-month sentence was pronounced back in January — with a surrender date of March 30.

I thought it would be obvious to the judicial system that I should be able to stay out of incarceration while my appeal was being considered, so I didn’t really expect I would go away on that date. Now I know that at the federal district level, asking a judge to grant bail for appeal on a case over which he presided is tantamount to asking him to second-guess his own trial rulings. Others reviewing the record might conclude judicial errors resulted in an unfair trial, but that’s not something one’s trial judge is likely to perceive.

While he considered the bail motion, the judge moved my surrender date back to April 27th. When he turned me down, that became the date I expected to have to report unless the appellate court reversed him quickly.  I started shopping for prison clothes.  But now, while the appellate court considers my request, there is no surrender date. The process has no proscribed ending.  I could find out what’s going to happen five minutes after I post this. Or, in two weeks, maybe longer. The appellate judges who will make this decision have very full plates.

If the decision goes against me, I would head off to Taft within a few weeks after that. If not, I will wait out the appeal while conducting my life — working, supporting my family, living like everyone else. There will still be an anvil over my head, but my time horizon will be a little more expansive. I won’t be a “day-to-day” guy. Maybe a “month-to-month” guy. And, if the court agrees with me, a guy whose conviction gets reversed.

Anyway, you might ask, how does this tie into “The Sopranos?”

First of all, what happened last night was about the last thing I would have expected when this 9-episode conclusion began last April 7. No I’m not talking about the sudden blackout in the middle of Journey’s “Don’t Stop Believing” that had much of America screaming their cable had gone out at the worst time. I actually predicted “no final resolution,” like Gilligan’s Island, two months ago.

No, what I mean is the fact that I got to see the final episode at all.

I envisioned my wife or one of my brothers coming to Taft to see me on visiting day, saying, “Do you really want to know? Wouldn’t you rather wait to watch the DVD after you get released?” “Well, yeah, but can you give me a hint?” Within the inmate population, I imagined there would be a no-spoiler omerta. But woe unto him who sang.

Considering that “each day is a gift,” I spent way too much time I’ll never get back this weekend on Television Without Pity’s Sopranos community site, offering up my pre- and post-show perceptions of last night’s episode and the series as a whole. Meanwhile, I’ve neglected this blog, even though lately most of my readers now go to one of my other Sopranos posts.

So here, for your consideration, are a few of the things I wrote last night and early this morning, most of them in response to posters who were furious about the indeterminate final scene. A number of the other posters on this site were expecting a bigger finish; Tony dead, or in the Witness Protection Program, or forced to endure the agony of seeing one of his children die, or his wife. Instead, onion rings, Journey, Meadow trying to parallel park and…over. So you’ll see a lot of back and forth here:

A half hour after the show was over:

OTHER POSTER: 9 Years invested in this? What kind of ending is that????

ME: It’s straight out of Larry David. No hugging. No learning. No getting whacked.

Fifteen minutes later, someone offers the theory that the blackout meant Tony was dead. He was shot by the guy who went into the men’s room. Like Phil Leotardo at the Oyster Bay gas station, Tony never saw it coming. Suddenly, consciousness just stopped and all went dark. But, as was the case with Phil, Tony’s family had to watch. At least according to the theory:

OTHER POSTER: I don’t think there is any ambiguity in the ending and it doesn’t leave the door open for anything further. A faithful viewer should take this to mean Tony is dead.

ME: This is tempting, but I think it’s false. Who ordered the hit and why? Phil’s dead. Butchie is a businessman and made an agreement not just with Tony, but also Lil’ Carmine. Business wins — that’s one of the messages of this ending.

The spoilers suggesting an insane personal revenge motive for Butchie are clearly wrong. He was fed up with Phil.

Carlo is in (Witness Protection.) The Russian’s grudge is with Paulie.

Tony’s only enemy at the moment is the federal government, which is going to grind him down like his mother ground down Johnny-boy, not shoot him in a diner.

Another poster objected that the ending was disappointing because Tony hadn’t been punished for his lifelong crime and murder spree, the proceeds of which sent his daughter to Columbia and decorated his wife with endless bling. I pointed out that his lawyer told him he was almost sure to be indicted.

Other poster: (I don’t) think it is clear that Tony has been punished…

Me: He’s going to prison. He’s going to grow old in prison. Or at least that’s what’s likely to occur. There were three possible endings.

• Life goes on.
• Tony gets whacked.
• Tony gets arrested.

Chase gave us a combination of 1 and 3. What’s the problem?

Then this morning, I just riffed for awhile after reading a few dozen other posts:

ME: After sleeping on it…

Going back to Greek tragedy and Aristotle’s analysis of the structure of drama, on up to the three-act structure taught in every screenwriting class at UCLA, we know how a “play” is supposed to end.

There is no similar body of knowledge about how a TV series is supposed to end. I don’t care what David Chase or Aaron Sorkin or J.J. Abrams says, when they start one of these series, they have no idea if they’re going to get to do even a second episode, and they certainly have no clue if they’re doing 22 or 122. It all depends on factors outside their control — ratings, the actors’ careers, etc. There is no science to this, no successful model of “how to end a TV series” that Chase could consult.

Lots of beloved series from the past had no ending at all. The last episode could have been the third episode. Or they tie up one arc that started in the final season. Or they just stagger to the end, the stories having been drained of any potential long before.

The two best TV endings I can think of were of MASH and Six Feet Under. But both of those series had built-in conclusions that guided their writers. For MASH, we all know the Korean war ended, so an episode about what everybody was going to do next made perfect sense. And the way Six Feet Under focused on death made its last sequence a perfect coda: “You’ve seen Nate die, now let’s see how everyone else is going to die.”

Chase didn’t have an ending like that available to him unless he wanted to kill off Tony. Apparently, he didn’t think that ending made any sense. It would have been too easy, and it wasn’t consistent with Tony’s strengths as a character. He might be a lousy boss, but he’s a survivor, he’s strong in protecting his family, and he’s a good negotiator. All that worked in his favor. Getting (Tony) killed at the end would have felt arbitrary.

(snip)

But a lot got accomplished in this final episode. The Junior v. Tony story that started with episode 1 played out to a beautiful, sad, meaningful and ironic conclusion. Meadow and AJ’s rationalizations for staying in the orbit of their corrupt parents were organic to the story, but also perfect representation’s of Chase’s cynical view of life. That the brilliant Meadow could delude herself that her father was a victim of racism? And yet, ironically, she’s right. The state does have the power to crush the individual, and the individual needs an advocate like Meadow to have any chance. If you see it up close (I have), it’s hard to root for the FBI….

(snip)

The show also closed the loop on Tony/Melfi. Her harsh treatment of him in “Blue Comet” is reflected of course in Tony’s boo-hooing to AJ’s therapist, but I think the real end to that story is near the end, when he’s raking leaves and hears the ducks flying overhead. He seems at peace, for the moment. Maybe Melfi helped him, or maybe it was just the passage of time.

The scene in Holstein’s was a denouement. There was no more story to tell. It was Chase’s opportunity to address the audience directly. Life is dangerous, life is tense, life can be snapped away in a moment, but not necessarily this moment. The onion ring is the perfect symbol — a circle, like the roulette wheel, and an onion — layers.

Someone else pointed out that the family ate the onion rings differently than most people do. They didn’t bite into them, they swallowed them whole. First AJ, then Carmela, then Tony. Putting a piping hot onion ring in your mouth all at once can be painful. But the image of AJ, Tony and Carmela swallowing circles related for me back to the scene a couple episodes ago when Tony is on drugs, watching a roulette wheel, and says to the hooker who gave him peyote: “It works on the same principle as the solar system.”

A lot of posters hated the Journey song. They turn their noses up at Journey as a band from the depths of the 1970s, a mullet-head band. But one poster made a great connection:

OTHER POSTER: “Don’t Stop Believing” was perfect. As Chase has said, and many of us have pointed out, 90 percent of what comes out of the characters’ mouths are lies. I think the song was a nod to that trait in the characters: Don’t stop believing your own lies, because you couldn’t if you tried.

ME: Thank you. I think this is the most satisfying explanation of the final song. It’s the lies we tell ourselves that keep us doing what we’re doing — that keep despair at arm’s length. Mobsters and their families are no different from the rest of us.

It also makes sense for David Chase, the music encyclopedia, that the essence of the show’s ending would be a pop tune. If he wasn’t a TV producer, he’d be a guy who makes personalized mix CDs for everybody he knows.

The only honest character at the end? Junior. Who doesn’t remember anything and thinks he’s being talked to by aliens. But at least he doesn’t lie to Tony, and that reassures Tony that the shooting wasn’t personal.

But the debate about whether Tony was dead or not raged on. I just don’t think he is.

OTHER POSTER: The bathroom guy was at the counter when Tony came in. There is no reason why bathroom guy wouldn’t already have a gun in his pocket and do the job before Tony’s entire family came in either.

ME: I don’t think hit men whack people in crowded family diners in front of Boy Scouts and other children, after they’ve spoken to waitresses who could identify them. Someone with a firmer grasp of Mob lore might correct me, but that would seem like an idiotic place and manner to do the hit, if one was ordered. Tony arrived alone, would probably leave alone, so if it was to happen that night, it could happen while he’s driving. Or any other night, somewhere else. Tony was no longer in hiding.

Because the idea of Tony getting whacked in the diner is so illogical, I disagree that the purpose of the blackout was to make everyone speculate on what happens next. Nothing happens next.

It’s the “life goes on” ending, just edited in a more arty way.

Indeed, life goes on. It feels a little different today, however. After living inside David Chase’s head for all these hours, you start to hear yourself breathe like Tony and you feel your face tighten up into that confused squint at the absurdity of everything that happens.

I envy those, like my son, who have never watched the show. They have 86 hours of the best writing about America of this decade, performed by skilled actors and captured by brilliant cinematographers, still to watch. I’m sure I’ll see them all again sometime, but to see them for the first time…

*UPDATE: One of the finest TV critics on the Sopranos, the Newark Star-Ledger’s Alan Sepinwall, gets the exclusive post-show interview with David Chase:

“I have no interest in explaining, defending, reinterpreting, or adding to what is there,” he says of the final scene.

“No one was trying to be audacious, honest to god,” he adds. “We did what we thought we had to do. No one was trying to blow people’s minds, or thinking, ‘Wow, this’ll (tick) them off.’ People get the impression that you’re trying to (mess) with them and it’s not true. You’re trying to entertain them.”

(snip)

One detail about the final scene that he’ll discuss, however tentatively: the selection of Journey’s “Don’t Stop Believin’” as the song on the jukebox.

“It didn’t take much time at all to pick it, but there was a lot of conversation after the fact. I did something I’d never done before: in the location van, with the crew, I was saying, ‘What do you think?’ When I said, ‘Don’t Stop Believin’,’ people went, ‘What? Oh my god!’ I said, ‘I know, I know, just give a listen,’ and little by little, people started coming around.”

Whether viewers will have a similar time-delayed reaction to the finale as a whole, Chase doesn’t know. (“I hear some people were very angry, and others were not, which is what I expected.”) He’s relaxing in France, then he’ll try to make movies.

“It’s been the greatest career experience of my life,” he says. “There’s nothing more in TV that I could say or would want to say.”

The Right Way to Fight Movie Piracy

Reacting to this story about the ”Pirates of the Caribbean” sequel earning $401 million its first weekend by opening in theaters worldwide nearly simultaneously, Thomas P. Barnett calls it “a good way to combat pirating,” meaning the illicit copying of new movies onto bootleg DVDs sold in advance of the movie’s opening in overseas markets.  

What the motion picture industry has perhaps figured out is that they were fertilizing the market for bootlegs with a mindless strategy of rolling out popular films in different markets over a period of months.  Well, it wasn’t a mindless strategy 20 years ago.  It was a way to manage the various costs and levels of effort associated with launching a big film — the ads, the PR, distribution of the film canisters. 

But now, PR- and advertising-fueled awareness of a sequel-ized hit featuring big stars like Johnny Depp can permeate most of the known world in mere days, especially a young market craving to be plugged in to whatever’s hot. There was an irresistable entreprenuerial temptation to service that market illegally.  If the movie-in-demand is playing at a theater down the street, there’s less of a reason for anyone to buy a bootlegged copy.

Rather than using copyright law to stretch a bunch of legal tripwires that, when triggered, make felons out their biggest fans, entertainment property owners ought to take a cue from Disney’s success story and give the people what they want.  They’ll pay a reasonable price for it if they’re given a chance.  You, the entertainment companies, have built this demand.  So service it.

Two updates, or Why Bloggers are Better than Hack Journalists

1.  Could anything be more cliched than this?  Riffing off the same article about minimum-security prisons in The American that I wrote about here, a lazy-minded writer named Peter Carlson goes on autopilot and comes up with a column that soothes every liberal prejudice without engaging any of the issues honestly.  To get himself off — a vulgar way of putting it, I realize, but that’s the way the story feels — he is forced to recast Luke Mullins’ story as an apologia for rich, crooked CEOs by a magazine sponsored by a think-tank devoted to “the welfare of the rich.”

Missing the point entirely, Carlson apparently thinks the story was about this:

Now, white-collar miscreants are forced to mingle with common street-level dope dealers. And they have to work for seven hours a day — sometimes at jobs that are boring and unfulfilling and beneath them. And some of these former country clubs no longer have a tennis court — or even a bocce court! And inmates are forced to wear tacky prison garb instead of their stylish street clothes.

The horror! The horror!

Okay, Carlson, are you feeling better now?  Then why don’t you ponder for a minute or two why the “dope dealers” are in these prisons.  You have to put two and two together.  Minimum security prisons are reserved for non-violent federal felons.  Why are non-violent “dope dealers” doing federal time at all?  Obviously, you’re amused by the notion of white-collar convicts being forced to mix with them, but the “dope-dealers” are human, too — not just characters in your hack morality play.  Have you done any reading about the human consequences of the war on drugs? Didn’t think so.  

And while I’m sure you had a ball mocking the “high-class folks” now being warehoused at taxpayers’ expense, aren’t  you the least bit curious about how many of these supposed powerhouses of capitalism actually belong there — and how many of them are actually “rich?” 

Mullins didn’t interview any CEOs; my guess is because he didn’t run into any.  The way our system works now, the CEOs generally aren’t the prosecutors’ targets.  CEOs are too wealthy, too well-insulated and, if they were aware they were doing something wrong, they made sure not to get their hands dirty.  In a typical white collar case of the past five years, the ”higher-ups” work with the government to nail the “lower-downs,” which makes the government’s job so much easier. The feds get to look like they’re doing something important, while the stockholders interests are protected.

Obviously, I’m sensitive on this subject, but it burns me that a prestigious newspaper like the Washington Post publishes the writings of a pampered fool like Peter Carlson who, instead of doing any real thinking or reporting, just rolls out the creaky boxcars of received wisdom.   If it’s my fate to go to a minimum security prison in the near or distant future, it doesn’t scare me in the least; and I certainly don’t plan on going in with an attitude that I’m better than any of my fellow inmates.  But there’s a side of me — petty, to be sure — that wishes for the same fate for a Peter Carlson, a scribe who thinks he’s above everyone — CEO and “dope dealer” alike.  How long would that snarky smile last?  Measurable in seconds.

2.  It took her almost a week, but it was worth the wait:  Ann Althouse took a careful, Tivo-aided look at last Sunday’s episode of “The Sopranos,” the one in which Tony kills Christopher after a car accident.  It’s a tour de force, and I say that even though I disagree with her ultimate conclusion — that Tony is now dead.

I post these paragraphs just as a sample.  You should read all of it:

Carmela makes Tony a cup of coffee with that expensive expresso machine Paulie gave her in the April 22 episode. Tony says “It’s good.” At least something is good. They have a conversation that brings out the mother theme. (I note that Paulie’s aunt/mother Nucci also dies in this episode, and there’s a fair amount of childish whining by Paulie on the subject.) Carmela, crying over Christopher’s death, says that when Tony was in the hospital — back during that coma-dream — “It was Christopher who held me.” This mother-son image prompts Tony to bring up the baby seat in the SUV after the crash. It had a tree limb in it, so if the baby had been in the car, it would have been “mangled beyond recognition.” Carmela stomps off, and Tony is left holding out his empty arms toward her in a way that says this boy has no mother.

The following scene is Tony’s real session with Melfi, and he’s talking about mothering. He’s disgusted that Christopher’s mother is showing up now and soaking up all the sympathy, when she didn’t mother him well during his life. He says, “I hand carried him through the worse crisis he ever had.” “Hand carried” is an odd expression, but it conveys the image of a mother carrying a baby. Of course, it’s completely ridiculous for Tony to think he ought to be getting the sympathy when he’s the murderer. Tony thinks Chris was ungrateful, that his hand carrying only inspired hate. Well, yeah. It consisted of offing Adriana.

This sequence of mother-themed scenes culminates in a gathering of various mothers in the Soprano living room. Tony wanders out of his bedroom and looks down on them from the upstairs railing. Christopher’s baby is there. Christopher’s mother says: “She doesn’t know. Isn’t God wonderful that way?” Christopher’s wife pulls out her large breast and as the baby takes it, Tony snaps open the cell phone. He’s calling some guy in Las Vegas. “I need a suite.” The guy offers a plane too. Enough of the female. Bring on the phallic symbol. Escape from the family sphere into the realm of sin.

Why Not Just Make Everything a Crime?

As I said a few posts ago, it’s time for Americans to realize that our leaders have gone a bit jail-happy.  No better example than this, which I thought was from The Onion, but is, in fact, true, and is, in fact, supported conceptually by that bastion of liberalism, the motion picture industry. From C|NET News Blog:  

Attorney General Alberto Gonzales is pressing the U.S. Congress to enact a sweeping intellectual-property bill that would increase criminal penalties for copyright infringement, including “attempts” to commit piracy.

“To meet the global challenges of IP crime, our criminal laws must be kept updated,” Gonzales said during a speech before the U.S. Chamber of Commerce in Washington on Monday.

The Bush administration is throwing its support behind a proposal called the Intellectual Property Protection Act of 2007, which is likely to receive the enthusiastic support of the movie and music industries, and would represent the most dramatic rewrite of copyright law since a 2005 measure dealing with prerelease piracy.

(snip)

The IPPA would, for instance:

* Criminalize “attempting” to infringe copyright. Federal law currently punishes not-for-profit copyright infringement with between 1 and 10 years in prison, but there has to be actual infringement that takes place. The IPPA would eliminate that requirement. (The Justice Department’s summary of the legislation says: “It is a general tenet of the criminal law that those who attempt to commit a crime but do not complete it are as morally culpable as those who succeed in doing so.”)

* Create a new crime of life imprisonment for using pirated software. Anyone using counterfeit products who “recklessly causes or attempts to cause death” can be imprisoned for life. During a conference call, Justice Department officials gave the example of a hospital using pirated software instead of paying for it.

* Permit more wiretaps for piracy investigations. Wiretaps would be authorized for investigations of Americans who are “attempting” to infringe copyrights.

* Allow computers to be seized more readily. Specifically, property such as a PC “intended to be used in any manner” to commit a copyright crime would be subject to forfeiture, including civil asset forfeiture. Civil asset forfeiture has become popular among police agencies in drug cases as a way to gain additional revenue, and it is problematic and controversial.

* Increase penalties for violating the Digital Millennium Copyright Act’s anticircumvention regulations. Criminal violations are currently punished by jail times of up to 10 years and fines of up to $1 million. The IPPA would add forfeiture penalties.

* Add penalties for “intended” copyright crimes. Certain copyright crimes currently require someone to commit the “distribution, including by electronic means, during any 180-day period of at least 10 copies” valued at more than $2,500. The IPPA would insert a new prohibition: actions that were “intended to consist of” distribution.

* Require Homeland Security to alert the Recording Industry Association of America. That would happen when CDs with “unauthorized fixations of the sounds, or sounds and images, of a live musical performance” are attempted to be imported. Neither the Motion Picture Association of America nor the Business Software Alliance (nor any other copyright holder, such as photographers, playwrights or news organizations, for that matter) would qualify for this kind of special treatment.

A representative of the Motion Picture Association of America told us: “We appreciate the department’s commitment to intellectual-property protection and look forward to working with both the department and Congress as the process moves ahead.”

Wired’s Mathew Honan thinks Gonzalez’ bill “faces a tough haul in Congress.”  He reports:

Before the Intellectual Property Protection Act of 2007 can even go to Congress, it will need to be sponsored by a member of the House or Senate. The Justice Department has yet to find a sponsor, although it’s hoping that a meeting with Hill staffers will flush one out. And while the DOJ claims to have bipartisan support for its bill, a similar measure introduced last year failed to make it to a vote.

“We’re still reviewing the bill, but based on our initial review, we have some concerns,” said Corynne McSherry, a staff attorney with the Electronic Frontier Foundation. “One of our biggest concerns is that it criminalizes attempted copyright infringement.”

McSherry said this is unprecedented in copyright law, and noted that the bill is ambiguous: “It’s not totally clear what would count as attempting copyright infringement.”

Essentially, the bill would turn copyright law into something more akin to existing drug laws: The government could seize personal property, wiretaps would become legal for the first time, violators could face life in prison and, in an ambiguous and far-reaching provision, the mere attempt to violate a copyright would become a crime.

Annalee Newitz from the Wired-affliliated blog Underwire says:

If this legislation becomes law, here are some things you could look forward to: 1-10 years in prison for attempting to engage in copyright infringement that would bring no profit to you (i.e., trying but failing to copy Doctor Who DVDs for your girlfriend); prison for life if you endangered someone by using pirated software (if a hospital got somebody’s medical records confused while using an infringing copy of Windows, for instance); being wiretapped by law enforcement investigating cases of attempted copyright infringement (now that your efforts to infringe Doctor Who DVDs for your girlfriend have been discovered, your cell phone has been tapped).

Sounds great, huh? But wait, there’s more. The IPPA promises enhanced sentencing for violating the DMCA, and will allow law enforcement to seize computers more easily. Buckle up, techno-wonks. It’s gonna be a rough ride if this bill makes it through Congress.

This is the problem with “get-tough” policies that allow politicians to posture against crime by lengthening prison sentences.   There’s always a constituency to “get tough” on white collar crime.  There’s always a constituency to “get tough” on drug dealers.  But once you’ve let the political community establish the “get-tough” precedent for unpopular sorts of non-violent crimes, then here’s what happens:  Well-connected big businesses are given a wide-open path to plead that actions they don’t like are crimes, too, and should get the same “get-tough” treatment. And as the unanimous bipartisan Senate vote for the Digital Millennium Copyright Act demonstrates, when business blows its horn, the politicians all come running.  

News from an “Unlikely Community”

Thanks to LA Biz Observed’s Mark Lacter for calling attention to this piece from the American Enterprise Institute’s “business magazine for people who think,” The American. 

It’s about prison, specifically the prison experience of white-collar felons, so of course I read every word twice.  The story analyzes recent trends in sentencing for white collar executives and business people convicted by the federal government of a wide assortment of crimes in which either a postage stamp (“mail fraud”) or an interstate communications line (“wire fraud”) was used.  Lacter linked to the story to make this point:

The days when white-collar prison sentences were a walk in the park – sometimes literally – are long gone….  These days, the minimum security facilities are becoming tougher, even more dangerous.

So, mind your p’s and q’s, Lacter wishes to warn would-be corporate criminals.  The days of golfing felons eating gourmet fare from Chasens are over.

Certainly, that’s one theme of Luke Mullins’ piece, entitled “Enter a ‘Hellish Place.’”  But there is much more to this expertly written, gripping narrative. First of all, it’s a story about two people, Alfred A. Porro, Jr. and his wife, Joan, both of them attorneys in New Jersey.  Porro rode a wave of success, working his way into a business partnership with NFL great Lawrence Taylor, but also someone criminal justice investigators had been investigating for years for things like conflict of interest and obstruction of justice.  But the case that ended up in his conviction and incarceration was nothing like that.

The thrust of the government’s case was that Joan Porro, then the executor of a trust that a former cli­ent had set up for his two children, had invested some funds from the trust in one of Al’s business ventures with Lawrence Taylor. Since documents regarding the investment were distributed by the U.S. Postal Service and did not disclose Al Porro’s stake, the Porros had committed mail fraud, the government contended.

At the meeting that morning, Carbone presented what Porro later called a tempting deal. The feds offered to reduce his potential punishment drasti­cally and to allow his wife to avoid prison altogether. But in return, the government wanted Al Porro’s tes­timony. He was to choose one person from a list of his former associates and provide testimony to sup­port the government’s case. (Through a spokesman at the U.S. Attorney’s office, Perry Carbone refused to comment on any of his dealings with Porro.)

Porro insists that the statements he was asked to make as a witness for the government were false. Still, the idea of keeping his wife out of jail was appealing. But it was Joan who convinced him to reject Carbone’s offer and fight the charges, Porro said.

Two years would pass before the case went to trial. “After more than a decade of fire-walking through state and federal investigations, Porro goes on trial today in federal court in Camden on wide-ranging fraud charges,” the Newark Star-Ledger said on January 12, 1999. The Porros represented them­selves in the nine-week trial and argued that the investment in the Porro/Taylor venture was in the best interest of the beneficiaries of the trust, who received a 10 percent return on their investment. Meanwhile, prosecutors inundated the jury with 2,000 pieces of evidence and 41 witnesses, includ­ing Lawrence Taylor himself.

On certain mornings, Porro was found kneel­ing in silent prayer before the judge’s bench in the empty courtroom. And just before the verdicts were returned, Porro’s family linked hands and sang “Amazing Grace” in the courthouse rotunda. But after three days of deliberation, the jury found both Al and Joan guilty on all 19 counts. Seven months later, a federal judge sentenced Al to nearly six years in prison, and Joan to nearly five. Calling the couple a flight risk, the judge had them taken into custody immediately.

This is the signal irony and characteristic of white-collar crime investigations.  The people who are really doing something wrong, and know they’re doing something wrong, are difficult to catch.  They cover their tracks from the first day of their scheme, knowing what a stray e-mail or document might mean to them.  White collar investigators don’t like cases like that.  Too hard, percentages not in their favor.  They hate to lose, and they know the public is watching. 

On the other hand, there are lots of people like Porro and his wife who, perhaps in good faith, make mistakes, or do things that, carefully sliced-and-diced away from all context, can be made to look like crimes to a jury already impressed by the government’s majesty.  People like that leave evidence all over the place, because they don’t believe they’ve done anything wrong, thus have nothing to hide.  To prosecutors who need to boost their batting average, cases like the Porros’ are a hanging curveball. 

Note also the escape hatch the Porros were allegedly offered: Help us convict someone else by saying what we want you to say about another investigatory target (statements Porro claimed would have been lies).  Implicitly, this is because the prosecutors didn’t have the goods against that target.   Why didn’t they have the goods?  Either the targets were too good at covering their tracks, or prosecutors knew no jury would find them guilty based on an honest presentation of evidence. So they had to cheat.

This was also interesting:

To Porro, the biggest initial surprise about life at Allenwood was the diversity of his fellow inmates. Most of the camp prisoners were not the rich white guys he had expected to see but poor African Americans and Hispanics—most of whom, Porro would soon learn, were drug offenders. “I was of the impression that the camps were primarily for white-collar criminals,” Porro said. “That’s just not the case.”

Despite widespread perceptions to the contrary, minimum-security prison camps are not reserved for former congressmen and CEOs. “People assume that you go to a prison surrounded by lawyers, doctors, and politicians,” said David Novak, a for­mer inmate who is now president of a consulting firm that prepares con­victs for prison life. “In fact, when you go to a camp, a full 70 percent of the other inmates are there as a direct result of the war on drugs.” In 1970, according to the Sourcebook of Criminal Justice Statistics, drug offenders made up just 16 percent of all federal prisoners, but by January 2007, the proportion had risen to 54 percent.

In part because of the increasing number of drug convictions, the federal prison system has expanded on a massive scale—from just 21,000 inmates in 1970 to 193,000 in 2007. As the system strug­gled to accommodate the ballooning population, many nonviolent drug offenders were sent to the camps. As a result, when new inmates like Porro arrive, they enter an unlikely community where the nation’s elite—professionals, politicians, corporate executives—live alongside the indigent foot soldiers of the drug trade.

“When you first get there, you’re a little apprehen­sive about mixing with the drug dealers, but then you learn that the drug dealers are a little appre­hensive about mixing with you,” said Fred Shapiro, a former attorney and accountant who defrauded a slew of Philadelphia-area financial institutions out of more than $8.5 million.

I’ll know in a week or two if I’m about to join an “unlikely community” up in Taft, CA.  Stay tuned. 

Stories like this are critical for anyone who works for a living to know, but they only tell half the story.  It’s easy to say “corporate criminals beware,” but not everyone serving time for white collar crime was aware they were doing something that anyone would call a crime.  How to avoid falling into that trap — how to be sure you won’t, even under the most politically charged circumstances — is a little too complicated for a slogan.  More on that sooner — or later.

Using Copyright Law To Silence Critics

This story seems like a big deal, no?  

Universal Music Group has abandoned its attempt to silence syndicated conservative columnist Michelle Malkin for her online criticism of one of the label’s controversial artists, the Electronic Frontier Foundation said Monday.

Earlier this month, Universal filed a copyright notice regarding a recent episode of Malkin’s online video in which she called hip-hop star Akon a “misogynist.” She supported her claims with excerpts from his songs and video clips of him with a teenage girl at a Trinidad nightclub.

EFF said Malkin’s video, which was posted on YouTube, was legally protected “fair use” and fought a takedown notice from Universal on her behalf. The video has been put back online.

EFF Senior Staff Attorney Kurt Opsahl called the label’s copyright claim “bogus” and said the company misused a 2001 copyright law. “Shame on any copyright holder who would attempt to use the DMCA [Digital Millennium Copyright Act] to intimidate and silence critics,” Malkin said in a statement.

Malkin, a shrill right-winger with a huge following, doesn’t fit the stereotype of Internet Hero; perhaps that’s why her case didn’t become the cause célèbre that, on the merits, it should be.  It’s chilling that a global media conglomerate would seek to use copyright law — the ill-advised Digital Millennium Copyright Act that Congress passed unanimously in 1998 — to deprive a critic of the weapon of quotation.  

In a piece comparing the Malkin case with a case involving gossip blogger Perez Hilton, FindLaw’s Julie Hilden sheds some light on the legal issues:

Granted, Malkin’s podcast may hurt the market for the Akon video if her listeners end up agreeing with her criticism. But what truly matters is that it’s extremely unlikely that any Akon fan will opt to watch only Malkin’s podcast in lieu of (not in addition to) watching Akon’s music videos or concert video themselves. A podcast criticizing a video is no substitute for the video itself, in the market; it doesn’t provide watchers with anything like the same experience, and thus doesn’t compete with the video itself.

(snip) 

The “fair use” factors are animated and informed by First Amendment concerns, and certainly, the kind of criticism Malkin is providing is strongly protected by the First Amendment. No wonder, then, that UMG backed off, and dropped its challenge.  

The whole thing’s worth reading.

Ironic, isn’t it?  UMG couldn’t make a dime off an obscene, degrading rapper like Akon without the Bill of Rights to protect them.  But the DMCA is like a termite infestation on the First Amendment — and the big media companies put it there.

Thoughts on Virginia Tech and the Rights of the Insane* UPDATED

The Virginia Tech tragedy is not a story about guns, it is a story about the rights of the insane. Cho Seung-Hui was clearly insane, as the tapes and writings now ubiquitous in the media show with painful clarity.  That he was both insane and potentially dangerous was known to university officials and law enforcement.  Despite his insanity, he continued to live in the dormitory and attend classes.

Anyone who lives in a big city like LA with a Skid Row knows there are thousands of crazy people sleeping in the streets and shelters who, if properly treated, could live productive, peaceful and perhaps even happy lives.   This has been going on for hundreds of years.

Unlike the Skid Row denizens, apparently Seung-Hui was functional. He hadn’t flunked out of school, for example. He managed to keep himself fed and clothed.  He knew how to operate a computer.  But the depths of his mental problems were at least glimpsed by officialdom — and then forgotten. Seung-Hui was given opportunities to receive treatment, but basically walked away without consequence.  The choice was his to make, completely, and he decided to go on being insane. 

In the past 40 years or so, we have decided as a society that to compel insane people to submit to involuntary treatment, to confine them, or even to keep track of them is both impossible and impractical.  

The good news is, of course, we don’t have insane people warehoused in bleak Dickensian asylums.  It’s also good news that people who are not insane are unlikely to fall into an institution like that through diagnostic or bureaucratic error.  “One Flew Over the Cuckoo’s Nest” couldn’t happen in America today.

The bad news is, we haven’t thought of anything better. We’ve just walked away from the problem. An insane person only gets help if he or she is sane enough to recognize they need it; or if they have an aggressive relative who will intervene on their behalf, despite their resistance.

I have an insane person in my family. She is about 80 now. The last time anyone saw her was about 20 years ago. Occasionally she sends a postcard. She is wandering the streets of a major metropolitan area.  She didn’t lose her mind until after she was married and had raised children. But since then…there was nothing anyone could do. Her husband, her brothers, her children, various ministers and doctors, nobody, because she didn’t want help.

To my knowledge, she has never hurt anyone. But neither had Seung-Hui, until yesterday.

Dealing with the insane is one of the most tragic dilemmas our society faces.

It blows my mind to think of those grieving parents and how they must be reacting to the news; about how many dealings this guy had with police and mental health officials, how many people knew there was something wrong with him, and that he might be dangerous. And yet, even after the first shootings, no police officer thought to go check his room. He wasn’t on anyone’s list. “Hey, doesn’t that insane student live here? Should we go up and talk to him?” That question was never posed.

He was in a room in a dorm adjacent to the crime scene, calmly reloading his weapons and packing his ammo belts, undisturbed by anyone who might have suspected a connection. He was in America. He had the right to be left alone, and was able to go about making his murderous plans behind the shield of his rights.

(P.S. This post is based on a comment I left here, on Althouse.)

*UPDATE: One consequence of this policy vacuum in terms of the mentally ill is that the problem is left on the doorstep of professionals who have no competence to deal with it, but no choice but to deal with it — at fearful risk of their lives.  This is well articulated in today’s New York Times’ op-ed by Barbara Oakley, an engineering professor and author:

It’s a simple fact that, for every deranged murderer like Mr. Cho there are thousands more oddballs just below the breaking point. I know one quasi-psychopathic incompetent, for example, who remained on the campus payroll for over a dozen years simply because his supervisor was afraid of being killed if he was fired.

It’s long been in fashion to believe that people are innately good, and that upbringing and environment are responsible for nasty personalities. But research is beginning to show that mean, sometimes outright evil behavior has a strong genetic component. Some of us, in other words, are truly born bad.

Researchers at King’s College London have recently determined that if one identical twin shows psychopathic traits, the other twin, who coincidentally shares precisely the same set of genes, has a very high probability of having the same psychopathic traits. But among fraternal twins, who share only half their genes, the chance that both twins will show psychopathic traits is far smaller. In other words, there is something suspiciously psychopath-inducing in some people’s genes.

What could it be? Medical images of the brain give tantalizing clues — the amygdala, the “fight or flight” decision-making center of the brain, may be smaller than usual, or some areas of the brain may glow only dimly because of low serotonin levels. We may not know precisely what set Mr. Cho off, but we are beginning to home in on the unusual differences in certain neurochemistries that can make people act in bizarre and dysfunctional ways.

Still, the Virginia Tech shootings have already led to calls for all sorts of changes: gun control, more mental health coverage, stricter behavior rules on campuses. Yes, in a perfect world, there would be no guns, no mental illness and no Cho Seung-Huis. But the world is very imperfect. Consider that Britain’s national experiment with gun-free living is proving to be a disaster, with violent and gun crime rates soaring.

In other words, most of the broad social “lessons” we are being told we must learn from the Virginia Tech shootings have little to do with what allowed the horrors to occur. This is about evil, and about how our universities are able to deal with it as a literary subject but not as a fact of life. Can administrators and deans really continue to leave professors and other college personnel to deal with deeply disturbed students on their own, with only pencils in their defense?

Suicide Virus Attacks Music Industry!

Again.

Why oh why, music plutocrats from Pluto, does it make sense to choke off a source that lets your consumers find out about new music? 

The practical result of this ruling…

In a decision that could drive the nail in the coffin to Internet radio providers, the U.S. Copyright Royalty Board has endorsed a proposal by SoundExchange to enact royalty rates for webcasts and streaming music sites that will stay in effect from 2006 until 2010.

SoundExchange, the royalty collecting division of the Recording Industry Association of America (RIAA), will seek to retroactively charge webcasters for streaming content delivered throughout 2006 to users, a decision that could send the sites packing for good.

The new rates will require webcasters to pay for each song streamed to each user, and will increase yearly…

will be to transform Internet streaming radio sites into one of two things:  A former Internet streaming radio site; or a site that plays sure-fire hits with a predetermined, guaranteed audience.  Kind of like the crappy radio music you can dial into today.

Does the music industry have the slightest clue about how listeners use their product?  Have they ever surveyed listeners who bought a CD or a download from a new performer, or from a non-mainstream genre, to find out how the listener became aware of the existence of this music they’ve now added to their life?   It’s not radio, because radio pretty much plays the music people already know.  And, sorry all you marketing geniuses, but it isn’t the advertising, the PR, the promotions, the commercial tie-ins. Or at least not those things alone; and they don’t apply to the fringe styles of music that many Internet streaming sites specialize in.

Mike at Techdirt channels how the recording industry thinks:

They still view the world (especially the internet) as a broadcast medium. Therefore, they want at small number of “professional” content producers who create the content for everyone else. Then they can just sign a few ridiculously large licenses with those large players, and “the people” get to consume it. It’s a fundamental misunderstanding of the internet as a communications medium — a medium where people express themselves back and forth to each other, rather than a place we go sit back and “consume.”  

Bad for the culture, bad business choice by the music industry.

(via LA Observed and Instapundit.)

Put Down that Sock-Puppet or I’ll Shoot!

If you’re an author with a book being sold on Amazon, and you post a fake rave review, or if you’re a company that creates a fake blog where consumers are represented as raving about your product, you could be prosecuted in Europe as a criminal!  From Britain’s TimesOnline:

Online consumer reviews are playing an ever greater role in shaping shopping habits, with websites such as TripAdvisor for the travel industry being seen as increasingly influential.

However, a string of businessman in the UK and the US have been caught posing as supposedly independent customers in an attempt to boost sales.

A recent investigation found that poorly rated travel establishments could lift their reputations from one to four stars in hours by posting fictional positive reviews.

Shortly before Christmas, the owner of the Drumnadrochit Hotel near Loch Ness admitted to posting a fake review of his own venue on the TripAdvisor site, calling it “outstanding” and “charming”. David Bremner said: “Maybe I shouldn’t have done it. But I don’t think it’s that big a deal.”

Well, it is certainly true that before I buy anything, I try to find customer reviews to verify the manufacturer’s claims.  Don’t you?  But I take anything I read with a grain of salt.  I’m not sure I’m ready to see some poor hotel owner locked up in a Brussels prison for trying to lure me in.  What about “buyer beware?” 

I think the Word of Mouth marketing trend, all the research suggesting “people like me” can make me want to buy something, runs aground right here.  I’ve watched fake “people like me” try to sell me stuff on TV my whole life.  You’d have to be pretty naive to think the Internet is magically different from all other media in this respect.

“Free” Samples*

Slate’s Tim Wu gets irate about “sample trolls,” who make legal claims of copywright violations when hip-hop musicians use the music they legally control. What set off the Columbia law professor was a suit filed against Jay-Z by Bridgeport Music, Inc. for his alleged use of several notes originally recorded by George Clinton. Wu details how Bridgeport came to possess Clinton’s copywrights by underhanded means, which they then parlayed into a series of lawsuits demanding payment for the use of Clinton’s music as samples.

The rise of rap presented a golden opportunity for Bridgeport. After years of demanding fees, in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample of Clinton or other owned copyrights it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport’s campaign.

Since 2001, Bridgeport’s shotgun approach has led to many dismissals and settlements, but also two major victories. First, in 2005, Bridgeport convinced Nashville’s federal appellate court to buy into its copyright theory. In that case, Bridgeport Music v. Dimension Films, the defendants sampled a single chord from the George Clinton tune “Get Off Your Ass and Jam,” changed the pitch, and looped the sound in the background. (The result is almost completely unrecognizable—you can listen to it here). The Sixth Circuit created a rule: that any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

(Emphasis added by me.)

Hip-hop is one genre of music I know the least about, but of course I’m aware of hit rap songs based on signature riffs by artists like Stevie Wonder, Rick James, Steely Dan, Ray Charles and many others. I always assumed these songwriters, or whoever owns the rights, were paid. Much of what makes the songs appealling are the sampled sounds, so payment seems fair to me.

This aspect of the music is also why I don’t bother with much hip-hop.  Create your own cool riffs, I say.  I like “Super Freak” and “Black Cow” in their original form — the rappers add nothing nearly as special as what they started with.

What gives someone else the right to appropriate elements so central to these songs and then call it original work? Even if you pay for it, sampling a well-known riff says to me you don’t have any ideas of your own. How hard would it be for me to sample, say, the opening of the Four Tops’ “Reach Out,” put it on a tape loop, and then come up with some rhyming doggerel about my troubles and woes to put on top of it?  I could do that tonight.  But I could sit in a studio for five years and never come up with anything a brilliant as that urgent, ethereal opening mix of flutes, handclaps and rhythm and bass guitars.

What Wu describes makes even less sense to me. Why would a hip-hop artist go to the trouble of snipping off a sample from another record — and then burying it in the new song in an “unrecognizable,” “unnoticeable” way? And if it’s so unnoticeable, how did Bridgeport come across it?

Wu tries to explain the culture and ethics of sampling this way:

In the big picture, copyright must continually work to ensure that the basic building blocks of creativity are available to artists and creators, especially as new forms of art emerge. We already know what this means for novelists: freedom to use facts, borrow stock characters (like Falstaff) and standard plots (the murder mystery). For filmmakers, it means the freedom to copy standard shots (like The Magnificent Seven’s “establishment shot”). For rap music, it means the freedom to sample. Rap’s constant reinvention and remixing of old sounds makes it what it is; now is the time for the copyright system to get that. Vibrant cultures borrow, remix and recast. Static cultures die.

I don’t buy these comparisons. Yes, in music there are certain patterns, like the blues, that are used frequently. If someone tried to copywright the I-IV-V progression, it would be an outrage. The lonesome pedal steel guitar in country music is a cliche of the genre, which no one performer owns.  However, a distinctive pattern of notes performed and recorded by particular musicians, which is then re-recorded in its original form and then mixed into another song is not a “building block of creativity” — it’s plagiarism. They’re not “reinventing…old sounds,” any more than I’m “reinventing” your car if I steal it and give it a paint job.

There’s no comparison to the format of a murder mystery, or the creation of a character reminiscent of another character. It’s more like taking three pages out of “The Big Sleep” and putting it into your new novel, and saying you wrote it. Yes, filmmakers can “copy standard shots,” in the sense of using a similar composition, but they can’t edit in footage from another movie without paying for it. My friends Todd and Robin Mason are finalizing a documentary right now, and must pay for the rights to all the old bits of film footage they have woven into their film. If Wu’s opinion is they can just take the old footage and claim it as “the basic building blocks of creativity,” then that would shave tens of thousands of dollars of their budget! I’ll tell them to give Wu a call.

This is not a defense of Bridgeport. The owner of that company might have come into possession of Clinton’s music through illicit means, as Wu’s article explains. But let’s say he didn’t. Let’s say Clinton still owned all his original copywrights. Would Wu hold it against him if he demanded payment for the samples from his recordings? But the logic of Wu’s position would hold that Clinton himself would be just as much of a cultural enemy — just as much of an exploitive litigant — as Bridgeport.

Wu’s side of the argument rests on making a distinction that strikes me as hazy — whether the sample was “recognizable” or not. Well, didn’t the owners of Clinton’s copywrights recognize it? Then it’s not “unrecognizable.” If they could hear it, so could any other George Clinton fan.

*Edited 11/18/06

Responsibility for Child Abuse

I’m fascinated by the twist that the case of former Rep. Mark Foley has taken toward trying to locate the source of his predatory behavior at the precise moment in his childhood when a Catholic priest apparently fondled him. The Nancy Grace types scorn this as “the abuse excuse,” an attempt by wrongdoers like Foley to shift the blame and avoid responsibility. That’s how Foley’s statements initially hit my ears, too.

But then it turned out Foley wasn’t lying. The priest in question, Father Mercieca, publicly said, “Once maybe I touched him” during their naked times together in a jacuzzi.

Fr Mercieca said he had befriended the boy after he arrived in Florida from Brazil.

The priest said he didn’t understand why Mr Foley had decided to come forward after almost 40 years.

“`Why does he want to destroy me in my old age?” Fr Mercieca told the newspaper.

“I would say that if I offended him, I am sorry. But remember the good times we had together and how we enjoyed each other’s company, and let bygones be bygones,” he told WPTV.

Ugh.

And now, less than 24 hours later, the Catholic Archdiocese of Miami has issued a public apology to Foley.

THE Catholic Church today apologised for the “inexcusable” behaviour of a priest who allegedly fondled Mark Foley when the now disgraced ex-Republican politician was an altar boy.

“An apology is due to Mr. Foley for the hurt he has experienced,” the Archdiocese of Miami said after the State Attorney’s office in Palm Beach, Florida identified the priest who allegedly abused the former politician four decades ago.

“Such behaviour is morally reprehensible, canonically criminal and inexcusable,” the Church said.

Meanwhile, Foley is being encouraged by activists to file a police report, even though the statute of limitations has probably run out.

This story illustrates what we all know about child abuse — that it is passed on, that the abused frequently become the abusers. We might be able to learn from Fr. Mercieca about the episode in his childhood that led him to mistreat a child this way. Beyond that, the path will surely get murky, but going forward, there will be a record, if any of Foley’s victims become abusers.

Another angle to examine: Fr. Mercieca claimed his abuse occured because he was “down…taking tranquilizers.” And Foley has blamed alcohol for his actions. Again, the popular response is, “there they go again, shifting responsibility.” But maybe we need to think a little deeper about this. How many child molesters are sober when they commit their crimes? A primary role for alcohol in society is to lower inhibitions — that’s why it is served at parties, to help overcome social awkwardness. But in the hands of the abused/abuser, it is often the fuel that takes their awful fantasies into the realm of reality.

Truly, I am not suggesting that an abuser should be viewed sympathetically if they claim they were drunk or on drugs when they committed their heinous acts. If anything, I am suggesting the reverse. Perhaps there needs to be an affirmative responsibility on the part of those who are suppressing these evil impulses to stay away from alcohol and drugs, and to seek help in doing so. “Know thyself” needs to become more than just good advice, but a legal and moral responsibility.

There also needs to be an affirmative responsibility on the part of the alcohol industry to warn their customers that their product lowers inhibitions and might lead to extremely regrettable behavior. They already warn about drinking and driving and drinking while pregnant or nursing; but drinking and abuse are at least as big a threat. What would be so terrible if the alcohol industry were forced to post signs and create ads warning that, for certain individuals, drinking leads to abusive, criminal behavior? If it makes one potential abuser think twice, it might be worth it.

It is particularly reprehensible that a doctor prescribed tranquilizers, as Fr. Mercieca has said, and the result was his woozy indulgence in child sexual abuse. Who was the doctor? What were the pills? Do they bear any responsibility for these acts on the part of Fr. Mercieca, and thus for Foley? If doctors are aware that drugs they are prescribing have the effect of lowering inhibitions or overcoming good judgement, then they need to develop a risk profile of their patients before letting them have a prescription. Doesn’t that make sense? Shouldn’t the doctors at least be required to ask questions like, “Were you sexually abused as a child? Do you harbor fantasies of having sex with a child?”

Believe me, in some ways I recoil from the implications of my own thoughts here. I am talking about a massive increase in exposure to legal liability for doctors, pharmaceutical manufacturers and those who make and sell alcohol. I am also adding a layer of prosecutable offenses to what is already illegal — child abuse — by suggesting that individuals must be held accountable for knowing their own risk factors, and structuring their lives to minimize those risks. The trial lawyers hardly need more slop to feed on.

But if we have the power to break this chain of abuse by aggressive social intervention of this nature, shouldn’t we at least explore the potential to end this tragedy? Because it is a tragedy that ultimately victimizes the most innocent. If we can protect them, shouldn’t we?

I’m Guessing He Doesn’t Like Term Limits

There appears to be so much cool political intrigue in the City Hall term limits story, but a disdain for term limits seems to have caused Times reporter Steve Hymon to avert his eyes from it all.  Here’s some of the story that ran this morning about the proposed term limits/ethics “reform” measure being pulled off the ballot* for violating the “single-subject” rule:

Because council members could be viewed as acting in their own self-interest, the civic organizations that wrote the ballot measure attempted to sweeten the term limits proposal with broader ethics reforms, only to run into a buzz saw of opposition.

(snip)

The ballot measure was written by the Los Angeles Area Chamber of Commerce and the League of Women Voters Los Angeles. At their request, the council voted 14 to 0 to put it on the ballot, sidestepping advice from Delgadillo to break it into two measures.

In these early paragraphs, Hymon makes it sound like this was a good-government reform requested by organizations outside City Hall.  But at the end of the story, he writes:

The court ruling could have political ramifications for council President Eric Garcetti, who has been pressured by his colleagues to get term limits eased or face possible loss of the presidency.

So which is it? A high-road attempt at government reform, or a complex political deal engineered by Garcetti to save his presidency?  Hymon leaves us hanging, just when the story starts to get interesting.  I want to know:  Which councilmembers threatened Garcetti?  How was this threat conveyed?  Is there any connection between the threat-makers and the civic organizations?

Hymon seems more interested in making term limits look pernicious.  His on-the-one-hand/on-the-other struck me as unbalanced:

Proponents of term limits credit them with ensuring fresh faces in government. Critics, however, say they deny voters the chance to vote for qualified incumbents and discourage lawmakers from tackling politically difficult issues.

Actually, the argument for term limits goes beyond the need for “fresh faces.”  Given the way the district lines for state and local officials are drawn, and given the way campaigns are financed, incumbents become nearly impossible to dislodge absent a severe scandal or a major political sea-change. Which means incumbents could govern pretty much however they wanted, for as long as they wanted, with little to fear from the electorate.  That’s why term limits became popular; and other than term limits, nothing else has changed that would ease voters’ concern about abandoning or relaxing them. 

Term limits are imperfect, a blunt instrument, and I can think of lots of areas where it has altered the council’s approach toward the city’s long-term assets. But the political class hasn’t given voters anything else with which to curb the power of incumbency, so the voters will tend to hang onto term limits.   

Hymon also demonstrates a bit of the Stockholm Syndrome on the question of whether it is term limits that “discourage lawmakers from tackling politically difficult issues.”  That’s what the political leaders say, but is it really true? Isn’t it just as credible to assume that a politician who will no longer face the voters after their last term could be encouraged to deal with difficult issues, while a politician who is always looking toward the next re-election would be discouraged? 

The “politically difficult issues” issue strikes me as more of an alibi; or maybe a ransom demand:  Let me keep my office or else I’ll vote like a coward. 

A poll commissioned earlier this year by the chamber and the voters league found that a proposal to ease term limits stood a better chance of passing if it were combined with other reforms. That poll was widely circulated in City Hall.

I would have liked more information on that poll.  Which “other reforms?”  Anything that smelled kinda like reform?  It might be interesting to find out how specific the poll was about the “other reforms,” to compare them against the “other reform” the council actually put on the ballot.  If Hymon was curious enough to ask.

The motives of the measure’s opponents are scrutinized for political self-interest much more skeptically than its proponents’:

Controller Laura Chick and Delgadillo were unhappy that the proposal to ease term limits didn’t include their offices, while ethics commissioners were upset they didn’t get to vet the lobbying reforms.

The Chick/Delgadillo complaints are always mentioned in these stories. But Hymon makes no mention of his own coverage a few days earlier of the Council’s attempt to trick voters by describing the measure in its ballot title as a “change” in term limits, avoiding language that would suggest the change was to lengthen them. Garcetti’s explanation for why he preferred the vague word “change” was funny, I thought:.

In a legal opinion last month, City Atty. Rocky Delgadillo warned the council that the ballot title could provoke a legal challenge and recommended that it use “lengthen” in the title while also saying that “change” was legally sufficient.

At the time, council President Eric Garcetti said that using words such as “lengthen” or “extend” were politically loaded terms and that “change” was more neutral.

Sure is!  I can see it now. Don’t call it a tax increase, call it a tax “change.”  A power plant wants to emit more pollutants? Don’t say it that way!  Call it an environmental “change.”  “Officer, I wasn’t going too fast.  I prefer the more neutral ‘changing speeds!’”

*By the way: This afternoon, the 2nd District Court of Appeals directed the county registrar to put the measure back on the City ballot.  This doesn’t mean the matter’s settled, but it does mean that if the measure survives after a hearing, October 3rd, the voters will be able to vote on it Nov. 7th, rather than waiting until next year. The decision is more a recognition of the need to start printing ballots and allow for the possibility of the measure’s survival than it is a determination of whether the city violated the “single subject” rule.

Let’s Make a Deal

This is very strange thinking indeed:

(T)he New York court also put forth another argument, sometimes called the “reckless procreation” rationale. “Heterosexual intercourse,” the plurality opinion stated, “has a natural tendency to lead to the birth of children; homosexual intercourse does not.” Gays become parents, the opinion said, in a variety of ways, including adoption and artificial insemination, “but they do not become parents as a result of accident or impulse.”

Consequently, “the Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”

To shore up those rickety heterosexual arrangements, “the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.” Lest we miss the inversion of stereotypes about gay relationships here, the opinion lamented that straight relationships are “all too often casual or temporary.”

The words in quotes are from the state of New York’s 4-2 decision upholding that state’s ban on gay marriage. They are cited in an op-ed that the NY Times ran this morning by Yale Law School Professor Kenji Yoshino.

If the New York legislature actually thought about marriage that way when it was written into state law in 1909, how should they react to the failure of that policy to prevent huge increases in illegitimate births, divorce and children being raised by one parent? The “benefits of marriage” aren’t turning out to be nearly enticing enough to prevent these things.

To take the court’s thinking to its logical conclusion, the Legislature confronts two possible choices. Either dump marriage altogether as a failed social experiment; or, up the ante:

“Hello, I’m from the New York State Legislature. I see you two kids are in a ‘family way.’ Will you stay together and raise your offspring for the next 18 years?”

“Hell, no.” “No can do.”

“Let me see if we can change your minds. We here in New York have this gift we want to give you to see if we can keep you together. It’s called ‘marriage.’ It’s wonderful. You’re legally bound to each other for life! Unless one of you wants to get out of it. So, will that get you two lovebirds to stay together?”

“No.” “I thought you said you had a gift.”

The Legislature convenes a special session.

“Okay, we’ve met and we really want to get you guys hooked up more permanent-like. So here’s what we’ve come up with: All the benefits of marriage, PLUS a brand-new refrigerator/freezer, a convertible couch — very handy for those nights after a little tiff — a set of steak knives, and a matched pair of bowling balls! We’ll even throw in a coupon for five free games at the Bowl-a-Drome!”

“You would do that for us?”

“We will do that, because we care about the children of New York.”

Well? Doesn’t that follow from what the court found?

The decision — which Yoshino said was based on similar reasoning from an Indiana state court ruling — also shows a surprising evolution in the stereotype of gay parents. Not too long ago, it was assumed that gay parents adopted children in order to convert them to the gay lifestyle. Now gays have to deal with a whole new stereotype: The perfect parents!

Being an imperfect parent myself, I’m not sure this stereotype is the road to popularity for gays and lesbians.

“Look at Billy. Always dressed so nice for school. I hear his report card was all A’s. And did you see that nutritious lunch he was eating?”

(Sigh.) “Yes. Well. His parents are gay.”

“Gosh, I wish I was gay. My Bobby won’t do his homework, and he’s always teasing his sister.”

“Don’t worry. Kids are strong. They can handle adversity. And there’s always vocational school.”

Yoshino describes the court’s decision as a “hostile ruling delivered in friendly terms,” and he’s surely right. Nonetheless, I like the idea of forcing anti-gay bigots to admit that children adopted by a gay or lesbian couple might be getting a better upbringing than their own kids are.

Un. Be. Liev. Able.

This story — about a Microsoft salesperson trolling for a consulting contract by threatening a big customer, making the scary but bogus suggestion that their software licenses were "out of compliance" — left me speechless. 

Here's how the most recent story (from Computerworld) starts.  You should also jump to the link embodied in this quote:

It's sleazier than we thought. In last week's Computerworld, Don Tennant spent his editorial going ballistic about an attempt by Microsoft to intimidate its customers. Tennant recounted how a Microsoft manager named Janet Lawless sent a series of increasingly threatening letters to Dale Frantz, CIO at Auto Warehousing Co., about how Frantz's company appeared to be using unlicensed software and how Microsoft wanted the issue resolved (see Rotten Effort ).

Frantz figured this was about his Microsoft software licenses, so he kept offering evidence that he was in compliance. Tennant concluded that Lawless was trying to intimidate Frantz to land a software deal.

They were both wrong. It's sleazier than they imagined.

See, Janet Lawless doesn't work for a part of Microsoft that enforces licenses. Frantz thought she did. You'd think so too if you got a letter saying "a preliminary review … indicates that your company may not be licensed properly," then a follow-up saying "since this is a compliance issue, I am obligated to notify an officer of Auto Warehousing of the situation and the significant risk your organization may be subject to by not resolving this situation in a timely manner."

Lawless kept insisting that Microsoft should send a consultant to Auto Warehousing to inventory its software.

But Lawless doesn't enforce licenses. The clue is her title: She's an engagement manager. That's right — Lawless's job is to drum up business for Microsoft's consulting operation. In this case, that's Microsoft's software asset management consulting business.

This wasn't about confirming license compliance or about a software deal. It was about securing Microsoft a paid consulting gig.

Yikes!  And the amazing thing is, given two opportunities to make some kind of public move toward remedying this appalling situation, Microsoft demurred.  Nothing wrong here — and expect nothing to change.  From the "Rotten Effort" editorial on May 8th:

So why was someone in a sales position leaning so hard on AWC about a supposed licensing compliance concern?

When I phoned Lawless to find out, she referred me to Microsoft's PR machine. The responses I got through that channel stressed that Microsoft's aim is to help customers navigate the complexities of software licensing and that one of the roles of engagement managers is to assist in that effort by informing customers of a potential licensing risk. I was told to attribute the responses to Lawless.

And then, in the May 15th story, it gets even worse!

According to Robert Deshaies, a Microsoft vice president for the software asset management program, the goal truly is to help customers get the most out of their Microsoft software licenses. And he insists that four out of five customers are happy with the results.

But here's what happens if you're a big Microsoft customer: Your customer history and purchase cycles are reviewed on a monthly basis by an engagement manager like Lawless. (That's right — your Microsoft purchasing history is handed off to the consulting side for making sales pitches.)

Then the engagement manager makes the initial pitch — that's the "preliminary review indicates your company may not be licensed properly" letter Frantz got. Deshaies says most customers take up the opportunity at that point.

And if, like Frantz, the customer says no? Then the pressure is ratcheted up with a higher-level effort to make the sale, Deshaies says.

If there's still no sale, if the engagement manager still believes there's a problem with the customer's licenses, the final decision is whether or not to pursue it, Deshaies says — presumably by kicking the issue over to the software sales side.

Incidentally, engagement managers like Lawless are working from a "designed process." Frantz wasn't facing some loose cannon. Lawless was following the script.

"This isn't about license compliance," Deshaies says. Yes, it is. It shouldn't be, but it is. Right now, Microsoft's software asset management consulting services are pitched from the start as being about license compliance. And if the customer keeps saying no, the last stop is a threat to sic the license police on the customer.

I mean, wow.  This takes arrogance to a new level.  Don't the PR people at Microsoft see what's wrong with this?  Doesn't anybody over there? 

(Thanks to Instapundit for pointing me in the direction of this story, by way of Evan Coyne Maloney.)

Put Away Your Bibles and Methadone

Weary thumbs all over Los Angeles and the nation are going to have to suck it up and keep tapping out messages on those little blue blinking devices for the indefinite future. But their owners are breathing a sigh of relief that they won’t have to take the BlackBerry cure just yet. A federal judge this morning chose not to order an immediate shutdown of the BlackBerry portable e-mail system. You can keep sending messages — for now. The judge, James Spencer, didn’t sound very impressed by the Research In Motion argument (joined by the U.S. government) that a national crisis would ensue if he ordered the injunction the patent owner NTP sought:

“I am surprised, absolutely surprised, that you have left this incredibly important decision to the courts. I’ve always thought this was a business decision,” the federal district court judge said.

Earlier in a packed courtroom, NTP described the Canadian makers of the BlackBerry as “squatters” who need to pay for using NTP’s patented technology in the popular wireless e-mail devices.

Lawyers for NTP argued that RIM should pay at least $126 million US in damages for plus $250 million US in royalties on BlackBerry sales that have been collecting in an escrow account.

Spencer also heard from lawyers representing RIM and the U.S. government, which is concerned that the five-year-old patent dispute could affect national security by disrupting a critical communications service.

(snip)

Although Spencer didn’t formally address RIM’s software “workaround” solution, he did say it didn’t make sense that Research In Motion could argue both that an injunction against the BlackBerry would provoke a national crisis and also that RIM had a technical fix that would the problem completely.

I admit it — I’m having too much fun with this issue, largely because I am no longer a BlackBerry user. But if you told me I couldn’t bring my laptop into Starbucks, where I am right now, and couldn’t connect to the Internet wirelessly while I sip capuccino and eat a Rio Citrus Salad, I would be upset. My writing, research, blogging, and e-mail might not represent a national security matter, but I think it’s important, and that’s all that counts.

But it’s hard not to laugh at the absurdity of the case itself. The judge and I have the same question: How could a profitable company like Research In Motion, and an alleged “patent troll” like NTP–which has never produced a single product but stands to make an enormous payday no matter what but seems to be holding out for more, more, more–not have reached a settlement a long time ago?

For enlightenment on this issue, I recommend this article from Knowledge @Wharton, The Wharton profs and experts come to no consensus, but do suggest the U.S. patent system has a little catching up to do.

While there are many moving parts in this five-year patent battle, the basic conflict is over NTP’s contention that RIM’s use of a wireless messaging network to deliver email infringes on patents that NTP owns. But the dispute raises other, more far-reaching questions, such as: Should Research In Motion have to pay a percentage of its sales to NTP, which may not have commercialized its patent anyway? Why has the battle gone on this long? Could RIM be shut down over a patent dispute even while the U.S. Patent and Trademark Office (USPTO) is re-evaluating several of the disputed patents? (Indeed, according to several news reports, the USPTO has already indicated that it eventually intends to reject all of NTP’s claims.) And finally, can the U.S. patent system, which in 1977 permitted a patent for a “comb over” — technically a “method of styling hair to cover partial baldness using only the hair on a person’s head” — keep up with technological innovation and a flood of patent requests? Does the patent system itself need a do-over?

“That’s the central question,” says Wharton professor Eric Clemons. “The balance is between encouraging innovators and benefiting society. This debate has been around for hundreds of years, and it ebbs and flows. Ben Franklin opposed patents in any form, and obviously he was wrong. Innovation is encouraged if innovators are rewarded. But when patents are too easy to get, mini-innovations can either shut down real services or command enormous payments for, in essence, doing nothing.”

Another Damsel in Distress for Mintz

Thanks to Deadspin, I just learned that Elliot Mintz, publicist for Paris & Nicky Hilton, and onetime flak-catcher for John & Yoko Ono-Lennon and Bob Dylan, is now right in the middle of the National Hockey League’s gambling scandal.

No toothless goalies for Mintz, however. He’s representing Janet Jones, actress, model and wife of hockey’s greatest player, former LA King Wayne Gretzky. Gretzky is now coach of the Phoenix Coyotes.

Jones’ name has come up as a betting client of Gretzky’s assistant coach with Phoenix, Rick Tocchet, with various news stories stating that Gretzky was secretly recorded talking about how to keep Jones out of the limelight as the betting investigation unfolded.

Gretzky is not implicated in the scandal, but news stories make it sound like everyone in his life was placing big bets with Tocchet. Tocchet and a New Jersey State Trooper, James E. Harney, have been charged in the case. Detectives believe they conveyed Super Bowl and other bets from other hockey players (and Jones) to an unknown bookie who detectives have linked to the Bruno-Scarfo crime family in South Jersey and Philadelphia.

According to Mintz, “Janet is merely one of a number of (grand jury) witnesses and there is no allegation whatsoever that Janet has violated any law.”

Design-Build or Die!

Did you get an e-mail from the Mobility 21 Coalition Friday afternoon, urging you to “Please call your state senator now and urge him or her to support SB 1026?”

If you are even marginally involved in public policy in California you probably did. (And I’m about as marginally involved as anyone could be.) Aside from arriving a tad late to do much good (the bill will be heard Monday), the call to action is a little obscure:

On Monday, January 9, the California State Senate will consider SB 1026 (Kuehl), which will help bring relief to one of our nation’s most heavily congested corridors–the 405 Freeway. SB 1026 will allow the Los Angeles County Metropolitan Transportation Authority–in close conjunction with Caltrans–to use the design-build contracting method for the HOV lane on the 405 Freeway. Mobility 21 needs your help to secure this bill’s passage!

I’d be glad to help, of course, but I didn’t understand what the “design-build contracting method” is, and why I should join the march on Sacramento to demand it. On first blush, it’s not a concept that gets the blood flowing.

Mobility 21’s website isn’t enlightening. The Legislative Alert on SB 1026 helps you contact Sacramento with just a few mouse-clicks, but doesn’t explain why you should. “Design-build” doesn’t even rate a mention in the release about the Fourth Annual Mobility 21 Transportation Summit, which only took place in November. It does, however, announce some important recommendations to “overcome the region’s crushing traffic congestion,” including:

Develop a Quality of Life Index that reflects a contextural shift in the paradigm of decision-making for major transportation corridor studies and infrastructure investments. Minimum indicators would include Environment, Equity and Economy as key indicators for determining the value of proposed improvements/investments.

Develop indicators that measure the quality of participation, process and education in public outreach and education programs associated with major transportation corridor studies. Use these indicators to establish a threshold for community based support.

Wow! Can’t wait for that!

I didn’t want to leave you hanging, so I did my own research on “design-build.” There is a Design-Build Institute of America, and its website has a link called “What is Design-Build?” Great! So I clicked it and was taken to a page that promises “a concise, easy to understand overview of the design-build process,” and then six more links. I clicked the one that said “An Introduction to Design-Build.” That seemed promising. Here’s what I found:

A Classical Notion of Single Source Responsibility:
Design-Build is a process that has been embraced by the world’s Great civilizations. In ancient Mesopotamia, the Code of Hammurabi (1800 BC) fixed absolute accountability upon master builders for both design and construction. In the succeeding millennia, cathedrals and cable-stayed bridges, cloisters and corporate headquarters, have been conceived and constructed using the paradigm of design-build.

Return to the time-honored approach of the Master Builder, where a single source has absolute accountability for both design and construction.

When the citizens of classical Greece envisioned their great temples, public buildings and civil works, master builders were engaged to both design and construct these monumental structures. Master builders accepted full responsibility for integrating conceptual design with functional performance. To assume anything less than complete accountability for delivering a project was unthinkable.

So it turns out we’re talking about much more than merely making some improvements to the freeways. No, we’re talking about revival of the Code of Hammurabi! Do you know what that is? For those of you fluent in Old Babylonian, here’s the original:

They had quite a system in the days when Mesopotamia was “the cradle of civilization.” The laws, literally “written in stone,” were hard to change–not even a king could do it. Also, according to Wikipedia, “the laws do not accept excuses or explanations for mistakes or fault: the Code was openly displayed for all to see, so no man could plead ignorance of the law as an excuse. Few people, however, could read in that era (literacy mainly being the domain of scribes)”

Harsh! But perhaps necessary to get traffic flowing again on the 405.

So, by all means, call your state senator to support SB 1026. I’m sure their voice-mail will be working all weekend. Tell them you want the LA County MTA to bring back the good old days when citizens were tenants of the gods, when fathers purchased brides for their sons, and when the same people who designed carpool lanes were expected to build them, too.

P.S. And while you’re at it, ask them why “design-build” is illegal in the first place.

Brother Stodder on the Border

I am one of five brothers, which to some makes me part of a rather imposing alliance. My youngest brother, Seth, has had an interesting career.  After he finished USC law school (Vince Young’s Longhorns broke his heart last night), he went to work for Gibson, Dunn.

Contacts he made there led to him take a job working for the director of U.S. Customs, Robert Bonner (who used to be U.S. Attorney here). Seth’s start date: The Monday after 9/11. His job description thereupon changed, and he became an expert on border security and container security.

Eventually, U.S. Customs was sucked into the Department of Homeland Security, where he continued to work until about a year and a half ago. During his time in government, he used to regale us with tales of wearing night-goggles on treks through the Sonora Desert, and traveling to ports in Singapore and China to discuss how to keep Al Queda from smuggling weapons–and operatives–into the U.S.

Now Seth’s back in LA, working for Akin, Gump, while maintaining an active professional interest in all the issues he dealt with in Washington. He has an op-ed in today’s San Diego Union Tribune that I proudly recommend. Here’s the thesis of it:

Many observers apparently see tough border enforcement as the opposite of a “welcoming” guest worker program, preferring to characterize the president’s statements as a political “retreat” in the face of right-wing opposition. These observers overlook a crucial point, however. The temporary worker program and stronger enforcement are inextricably interrelated. One cannot succeed without the other.

Indeed, without stronger border enforcement, any temporary worker program will fail and our national security will be jeopardized. And conversely, any “enforcement only” approach – such as that taken in the recent House bill – will similarly be doomed to failure absent an effective temporary worker program.

Read the whole thing. He shreds the rhetoric of both the right and the left in this piece.

Seth has the same family virus as me–he’s a Democrat, but a constantly frustrated one. He did his patriotic duty working in the Bush Administration on issues that concern everyone, not just Republicans. He’d be a great addition to a future Democratic Administration.

“Those awful domestic disputes!”

This post is why I enjoy reading Ann Althouse’s randomish blog.  It’s supposed to be a law blog–she’s a law professor.  But that’s a topic she rarely addresses as her mind noodles over her daily life.  In this post, she’s looking over the various top-ten lists for 2005’s movies and concludes that this year was “a big drag!”  She’s funny on the topic of biopics: 

Is this acting stunt worth doing? I seriously do not understand why they make so many biopics, especially of people there’s plenty of film of, especially when they are singers and we’ve got innumerable filmed recordings of their concert performances.

Is it because the actor can show us the actual consumption of drugs and alcohol, and we can drag in an actress for him to have big, loud fights with? Those awful domestic disputes! I’m never interested in seeing a man and a woman just yelling at each other about their relationship! I think Elizabeth Taylor and Richard Burton are interesting in “Who’s Afraid of Virginia Woolf,” but, after that, I really don’t need any more. Husband and wife squabbles! Why not just live in an apartment building with thin walls?

I only saw two of CNN’s best movies: “Crash” and “Capote.”  I liked both of them.  But I get so much more pleasure out of old movies, and as a screenwriter-in-training, I learn more from them. This Christmas, one of my brothers gave us, I think, 10 film noirs like “Where the Sidewalk Ends,” and “The Dark Corner.”  I’d put the Tim Burton biopic “Ed Wood” on my Amazon Wish List, and my mother got me that, along with a box set of all Ed Wood’s movies.  I don’t think she understood exactly why I like the Tim Burton movie, but what the heck. I’ve always wanted to see “Glen or Glenda.” Maybe I’ll watch it in Glendale. Or Glendora.

Nothing personal

Politics today is all reflex, at least as it is practiced in public.  Of Technorati’s list of the “biggest blogs,” five of the top ten are political, and four of those define themselves by their hatred of, or worship of, President Bush. The Republicans would have you think George W. Bush is the reincarnation of Winston Churchill and can do no wrong.  The Democrats would have you think W is the reincarnation of Adolf Hitler, and if he isn’t stopped, our republic is doomed.

Into this robotic pissing match comes the revelation this month that the National Security Agency (NSA) is conducting wiretaps of conversations between Americans and foreigners without warrants.  “Clearly constitutional, and in fact the president’s duty!” says the right.  “Clearly unconstitutional, and finally we can impeach Bush!” says the left.

Thanks to kausfiles, I found some enlightenment in this op-ed column by Harvard Law professor Charles Fried that probes the really interesting issue here:

I suppose but do not know — the revelations have been understandably and deliberately vague — that included in what is done is a constant computerized scan of all international electronic communications. (The picture of a G-Man in the basement of an apartment house tapping into a circuit board is certainly inapposite.)  Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.  Moreover, it is likely that at the first, broadest stages of the scan no human being is involved — only computers.

The constitution did not envision this kind of in-between space where database technology can go to gather, sort and flag information–which no human being hears or sees–that could indicate a need for further monitoring. Instead of the already-sterile debate about whether Bush is a hero or a criminal, our media and public figures ought to be consulting experts on privacy and database technology toward the ultimate end of writing new rules, and perhaps a new constitutional amendment to put limits on these not-quite-searches. As Fried asks, ”Is a person’s privacy truly violated if his international communications are subject to this kind of impersonal, computerized screening?” Hmm.

The way the issue is framed right now artificially limits the discussion we need to have as a country. As Bush put it, “the enemy is calling somebody and we want to know who they’re calling and why.”  The enemy is someone already identified as part of a jihadist group, and they are calling from a foreign location. So, to many of Bush’s defenders, end of discussion.  Under Article II of the Constitution, as commander-in-chief, he can and must defend the country, and has broad authority to do so.

But, as Mickey Kaus asks, what if there’s “a credible threat of homegrown terrorism?” The loophole that might justify what the NSA is doing now won’t be available. So, clearly, a vigorous and well-informed debate is long overdue.  Since your credit card company has been using such algorhythms to assess your purchase patterns and determine if your credit card was stolen, it is no surprise that government would eventually do the same thing. How far should they be able to go?   

As Professor Fried says, however, it might be difficult to conduct this debate without, in the end, giving away whatever technological advantage the government now has over our enemies:

…it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

 

Hello My Name is Steve, er, Bob

Remember the grocery lock-out a couple years ago?  It’ll be a long time before Ralph’s Grocery Co. forgets it.  According to the Los Angeles Business Journal today:

According to (U.S.) prosecutors, Ralphs created fake Social Security Numbers and new names for employees who were rehired after being locked out on Oct. 12, 2003. The company also falsified employment eligibility forms, employee withholding allowance certificates, income tax statements and reports to trust funds that provided employee pension and health benefits. The company also issued thousands of payroll checks under false names and allowed workers to cash their paychecks at Ralphs in order to hide their identities.

Ralphs allegedly forced employees to wear name tags with their new identities and to work far from their normal workplaces, often moving from store to store.

Yikes.