Thursday, October 29, 2009

Sex-offender registry gets it wrong (Who saw that coming?)

Earlier this year, the Office of the Inspector general at the U.S. Department of Justice warned that the oh-so-popular sex offender lists maintained around the country, intended to track the predators among us who specialize in sexual crimes "are inaccurate and incomplete." The report caused a bit of a buzz at the time, then disappeared. Maybe it's worth resurrecting that document, if only to reflect on the plight of Ilinois's Scott Ibarra, who somehow was wrongly branded as a sex offender by the state, placed there by ... well, nobody will admit to the act.

Sex offender registries are a big deal these days. Many people regularly check the lists when assessing potential new neighborhoods, acquaintances and co-workers. The lists are mandated by the Sex Offender Registration and Notification Act, which required that all states, territories and tribes have them in place by this past July 27.

The registries have been dogged by controversy, especially as the number of offenses that can land offenders on them has grown to include consensual offenses like intercourse between teenage couples whose ages happen to straddle the legal line for consent, and "sexting" -- the sharing of provocative self-portraits that has become popular in certain hormonally charged, underage circles.

But Scott Ibarra's case highlights another risk: that the sex offender lists are as flawed and inaccurate as everything else maintained by government agencies, to the point that they include the names of innocent people.

According to the Joliet Herald News:
Ibarra's name, the address of his Joliet home and his physical description were placed in the state's sex offender registry under a charge of aggravated criminal sexual assault for a month and 10 days in 2008.
Ibarra was clued in only because a police officer friend clued him in. He was also able to get a state legislator to intervene on his behalf when seeking an explanation for the listing -- an explanation that still remains vague at best, but seems to involve a former police lieutenant who may have been performing a service for Ibarra's ex-wife. But that retired officer insists he only made an inquiry -- he never actually submitted Ibarra's name for inclusion in the registry.

The issue is somewhat clouded by the fact that Ibarra had been convicted of rape by the Navy in 1997, but his conviction was overturned on appeal. Legally, he was and is an innocent man, and ineligible for listing as a sex offender.

Maybe that's just a screw-up -- catching the initial conviction, but not the final clearing of Ibarra's record. But it's a dangerous mistake considering the limitations inclusion on the list places on people's employment, where they are allowed to live, and the necessity of reporting to local authorities. Being improperly listed as a sex offender can very easily result in losing jobs, losing homes and being arrested -- and places a person under a permanent cloud of suspicion.

Earlier this year, that Inspector General's report cautioned, "neither law enforcement officials nor the public can rely on the registries for identifying registered sex offenders, particularly those who are fugitives." It turns out that we may not be able to even assume that everybody on the registries actually committed the crimes for which they've been included.

Monday, October 26, 2009

Arizona hits the asset forfeiture lottery

The Arizona Department of Public Safety, which includes the Highway Patrol, is making much fuss about two roadside stops last week that resulted in the seizure of over $150,000 in cash that was being transported in the vehicles. The money was taken on suspicion that it was the proceeds of criminal activity, and the two drivers have been booked on money laundering charges related to the as yet unidentified crimes.

That's right: unidentified crimes. Oh yes, it's a fair bet that the money -- $49,000 in a hidden compartment and $104,000 in a shoe box -- came from some underground trade, with drugs as the safest guess. But there was no way for police to know that for sure when they pulled the vehicles over for "speeding and a lane change violation" in one case and for "a following distance traffic violation." The police claim vague "indicators of criminal activity" as excuses for the subsequent searches of the vehicles that revealed the money, but the charges on money laundering alone suggest that the indicators didn't actually constitute evidence.

So the drivers are being charged with laundering money gained from criminal activities to be named at a later date, and their cash was taken on suspicion of being connected to those same mysterious activities.

Again, it will be no surprise to anybody if the cash does turn out to be drug money, but it should also be no surprise if it turns out to be perfectly legitimate cash. Police claim that their spidey senses are nearly infallible in such matters, but more than a few people over the years have had their money stolen by law-enforcement authorities who just wouldn't or couldn't believe that anybody would want to possess large sums of cash.
As long ago as 1995, then-Rep. Henry Hyde made a personal cause of exposing the confiscation of cash by police from innocent people. He emphasized the case of Willie Jones, a Nashville landscaper, who found it easier to do business in cash when purchasing supplies for his business -- and lost nearly $10,000 for his troubles. Unfortunately, Jones was only one victim among many of asset forfeiture laws -- weird vestiges of medieval legal theory that allow the authorities to seize and prosecute things under legal standards much less stringent than those required to prove cases against people.

Despite the attention of Hyde, the Cato Institute and the ACLU, and subsequent congressional hearings into asset forfeiture abuses, the situation hasn't really improved. Some communities -- such as Tehana and Jim Wells County, both of Texas, and Lamar County, Georgia, have become notorious for stopping passers-through and grabbing anything of value. Those who object are threatened with -- you guessed it -- money laundering charges. As of last year, The Jim Wells County Sheriffs's Department was generating one-third of its budget from roadside muggings.

Often, police will point to positive results from drug-sniffing dogs as indicators that seized cash is the proceeds of illegal activity (canine hits could well be the "indicators of criminal activity" cited by the DPS, since the arrests were made by a canine officer), but that's like tossing darts at an elephant considering that a whopping 90% of all U.S. cash has cocaine traces. One forensic scientist who has commented on the matter warns that the traces are high enough to cause false drug test results on people who handle large amounts of cash.
Asking dogs to sniff a bundle of the green stuff itself is like shooting fish in a barrel.

Odds are that the Arizona Department of Public Safety is right and the cash officers seized last week comes from drug transactions (and leave aside, for the moment, my strong belief that the government has no business criminalizing voluntary transactions among adults of any sort). But the DPS doesn't actually know that, it's just guessing. If the Arizona Highway Patrol didn't actually rob innocent drivers last week, it, like so many other law enforcement agencies around the country, certainly has in the past -- and it will likely do so again in the future.

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Thursday, October 22, 2009

Are the feds easing up on grass (or just fishing for good press)?

In what appears to be an important reversal of one area of the United States government's traditionally harsh drug policies, the federal Department of Justice has issued new guidelines (PDF) to U.S. Attorneys de-emphasizing the prosecution of individuals "in clear compliance" with state laws allowing for the use of marijuana as medicine, and shifting resources to "disruption of illegal drug manufacturing and trafficking networks." The memo should come as promising news for advocates of drug policy reform, and especially for growers, distributors and patients in the fourteen states that allow for medical marijuana. However, the new policy leaves plenty of room for continued prosecutions if officials are less than serious about shifting gears on drug prohibition.

The memo (PDF), signed by Deputy Attorney General David W. Oden, reads, in part:
The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department's efforts against narcotics and dangerous drugs, and the Department's investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.
One potential problem is the question of who will determine whether medical marijuana operations are in compliance with the law. Even in some states that have unambiguously legalized marijuana as medicine, many law-enforcement officials remain openly hostile to the reform and have often looked for excuses to arrest marijuana users and distributors. Such officials could provide an easy pretext for sabotaging reforms in marijuana policy If relied upon as resources for interpreting compliance with state laws.

The California Police Chiefs Association released a position paper (PDF) just last month attacking marijuana use in general, as well as the popular referendum that legalized its use for medical purposes. The paper claimed, "The vast majority of those using crude Marijuana as medicine are young and are using the substance to be under the influence of THC and have no critical medical condition." This is important, because the Justice Department memo specifies, "nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law."

It's easy to imagine California police counseling federal prosecutors that most, if not all, medical marijuana use is a sham intended to justify recreational consumption.

Ultimately, the successful implementation of the Justice Department memo depends on U.S. Attorneys willing to see reforms put into effect, and not looking for excuses to continue harsh policies.

Even then, the new guidelines, while long-awaited by advocates of reform, fall far short of efforts in other countries, including Mexico, to decriminalize and even legalize recreational use of many drugs. Most reformers say that full legalization is needed to reduce the harm done by prohibition and to recognize the rights of individuals to do what they wish with their bodies and lives.


Tuesday, October 20, 2009

Bipartisan body bags

Thaddeus Russell, whose ox-goring A Renegade History of the United States will be published next year (I've had the privilege of reading some early drafts, and I have only good things to say), sounds off at The Daily Beast on the bipartisan nature of hawkishness. Specifically, he points out that some of the more enthusiastic advocates of American imperialism have had solid liberal or progressive credentials.

The point of this, of course, is to gently chide his readers over any unrealistic expectations of peace reigning on Earth just because the White House and the Congress are in Democratic hands.

Should President Barack Obama continue his escalation of the wars in Afghanistan and Pakistan, it will be the liberal thing to do.

What too few Americans realize—especially the president’s anti-war supporters, who accuse him of betraying liberal or "progressive" values—is that if he accedes to General Stanley McChrystal's request for more troops in Afghanistan and intensifies the drone attacks in Pakistan, he will follow squarely in the footsteps of the great liberal statesmen he has cited as his role models. Though opponents of the wars in Iraq and Afghanistan cheered loudly when Obama spoke reverentially in his campaign speeches of Theodore Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman, and John F. Kennedy, those heroes of the president promoted and oversaw U.S. involvement in wars that killed, by great magnitudes, more Americans and foreign civilians than all the modern Republican military operations combined.

Left-of-center hawks even have a fine tradition of invoking the will of God as justification for carrying fire and sword hither and yon.
Both Theodore Roosevelt and Woodrow Wilson declared that God had given American leaders—"Christ's Army," according to Wilson—the divine duty to "improve" the backward peoples of America and the world. Roosevelt and Wilson used that rationale to establish modern progressivism and American imperialism, both of which were part of what Roosevelt called "the long struggle for the uplift of humanity." They argued that greater government intervention, through social welfare and regulatory programs at home and military incursions abroad, would remake American slums and all the countries of the world into the Puritan ideal of a "city on a hill."
In fact, Russell emphasizes, many of the most fervent neoconservative sword-rattlers in the administration of George W. Bush invoked liberal leaders of the past as inspiration for their vision of intervention at home and abroad.

That's not to say that there's no tradition of anti-imperialism and advocacy for peace in American politics -- there is, to some extent, on both the right and the left. But those calling for a revival of the progressive tradition of past liberal presidential giants may not realize that, if they get what they ask for, body bags will certainly be involved.

Considering its enemies, can Fox News be all bad?

In the early years of the United States, "newspapers were really the only source of news for American voters and they were typically operated by one of the two major party organizations" says an academic study of the period. Democratic-Republican newspapers warned that George Washington would make "a bold push for the American throne” and mocked John Adams as “blind, bald, crippled, toothless, [and] querulous.” Federalist papers countered that their opponents were "frog-eating, man-eating, blood drinking cannibals." So when Newsweek's Jacob Weisberg whines that "[t]he Australian-British-continental model of politicized media that Murdoch has applied at Fox is un-American," we know that he's not just a little off-base -- he's completely full of crap. In fact, we may want to celebrate the very things that have the White House's David Axelrod complaining that Fox is "not really a news station" and has his collegue Anita Dunn frothing that the overtly conservative outlet presents "opinion journalism masquerading as news."

From the 18th, through the 19th and well into the 20th centuries, American newspapers weren't just partisan -- they were dominant political players. Jeffrey L. Pasley, professor of political science at University of Missouri-Columbia and author of The Tyranny of Printers: Newspaper Politics in the Early American Republic, notes:

Since American political parties lacked any permanent institutional structures before the 1850s, party newspapers and their editors came to embody and run the parties as no other institutions or actors could. Even after national party committees were created and national party newspapers were done away with during the Civil War era, newspaper-based politics remained the rule in many locales (especially the South and Midwest) into the early twentieth century, as shown by the fact that both major party presidential candidates in 1920 were party newspaper editors from Ohio.

The modern period of what we're assured is "objective" news coverage is an aberration that has lasted just a few decades. Really, the heyday of news-reporting without any (overt) point of view seems to occupy that period between the contraction of the newspaper industry and the rise of alternative media, including talk radio, cable and the Internet. In the 1890s, New York City had 19 daily newspapers. One way for these newspapers to differentiate themselves was by point of view. Of the top-notch papers, for many years, the New York Times was more liberal, the New York Herald-Tribune more conservative. Once that crowd of newspapers was whittled down to three by economic shifts and strikes, it was easy for the Times, like the last remaining newspaper in so many cities, to peddle its high-minded elitism as neutral coverage, and too bad if you didn't like it.

It's worth noting, though, that the two remaining New York City tabloids continued to distinguish themselves by politics, with the Daily News tilting left through most of those years, and the Post leaning right.

Heavily regulated broadcast media, subject to the fairness doctrine and limited to two (later, three) real networks, presented whatever didn't offend the FCC as journalistic true faith, with Walter Cronkite as its prophet.

And that gray, dull state of affairs lasted until people once again had alternatives to turn to, in the form of un-muzzled radio hosts, cable stations and Websites. And turn they did, fleeing from the old journalistic warhorses to outlets once again offering partisan takes on the news. Basically, "objective journalism" seems to be a saleable product only when the customers have no alternatives.

Not only has that product proven not particularly palatable to the public, there's a legitimate question to be raised over the value -- or even possibility -- of "objective" journalism. Was the like-it-or-lump-it coverage of the late 20th century really so devoid of bias? Or was it so steeped in a single attitude that its practitioners couldn't tell the difference anymore? After all, the choice of which stories to cover and which policy experts to quote are themselves expressions of judgements that are rarely devoid of bias. Time Managing Editor Richard Stengel was likely doing no more than telling a hard truth last year when he said:

"[T]his notion that journalism is objective, or must be objective is something that has always bothered me – because the notion about objectivity is in some ways a fantasy. I don’t know that there is as such a thing as objectivity."

And we have to keep coming back to the fact that, no matter what people tell pollsters, they seem to prefer news with a point of view. Not only is Fox News successful, but so are its counterparts. Few people watched MSNBC until it positioned itself as a liberal alternative to Fox and found a reason to exist.

Meanwhile, newspapers espousing objectivity, many of them the last print dailies in their communities, continue to hemorrhage readership.

Which may be good news across the board. Partisanship has its flaws -- Fox News was largely unwatchable unless you were a committed neoconservative during the long, dark Bush years. But MSNBC quickly found its footing as an antagonist of the powers-that-be. Now the positions are reversed and Olbermann and company often act as official mouthpieces while Fox discovers renewed relevance in afflicting the powerful.

Partisan journalists of the past and present don't just excite their audiences, they also bring hammers and tongs to their scrutiny of government officials of opposing viewpoints. Given the vast powers exercised by governments to destroy lives, wage war and crush liberty, the least we can do is hope that the watchdogs dogging their steps have every incentive to uncover misconduct and scandal -- something a bit more invigorating than a priest-like devotion to the profession. We knew that Keith Olbermann would tell us about any misstep by the Bush administration because he despised President Bush; we can be equally assured that Glenn Beck will eagerly reveal President Obama's screw-ups for the same reason.

So give us more of that partisan journalism -- from every perspective. It's effective, it's exciting, and it's a hell of a lot more American than the dull pabulum that Jacob Weisberg wants to spoon down our throats.


Wednesday, October 14, 2009

I pledge allegiance -- for now, provided certain conditions are met

Already this month, the Pledge of Allegiance has made news headlines multiple times. The U.S. Supreme Court refused to hear the appeal of a Florida high school student who was punished for failing to swear loyalty to the national symbol, a federal judge declined to strip the words "under God" from the pledge in a New Hampshire school district, and a ten-year-old Arkansas boy was punished not for his principled refusal to recite the pledge, but for telling a pushy, uber-patriotic teacher to "jump off a bridge."It seems that America's own aging oath of fealty has a hankering for the spotlight. But do even the rebels at the root of the news stories understand why the Pledge of Allegiance is so troubling?

The Supreme Court case involved a Florida law that, since 1942, has required all school students to recite the pledge unless excused by their parents. In 2005, Cameron Frazier declined to participate in the patriotic chorus at Boynton Beach High School because of his objection to government policies and was booted from class for his trouble. He sued (PDF) and initially won, but a federal appeals court ruled that the First Amendment rights in the case belonged to parents, not children, so Frazier had no legal legs to stand on. The Supreme Court has decided to let matters rest there.

Unlike Frazier, the plaintiffs in the New Hampshire case didn't object to the whole pledge -- which is optional where they live -- but to the phrase "under God," which was added to the original 1892 text in 1954. As atheists and agnostics, they don't want officially sanctioned recitals to include religious material. The judge's dismissal of the case is now being appealed.

Will Phillips, the Arkansas ten-year-old, refused to say the pledge out of solidarity with gays and lesbians who, he believes, don't enjoy equal rights in the U.S. Unusually for somebody his age, he had the backbone to stand his ground -- and talk back -- when castigated by a teacher offended by his alleged disloyalty.

In both the Florida and Arkansas cases, the resisting students stood on principle to refuse to say the pledge. They objected to policies or perceived flaws in the country and decided, as a matter of conscience, that they couldn't ... well ... pledge allegiance.

But what if you like what the folks currently in power are doing, think that everything is going swell and approve of the wording of the oath in question? Is it OK to pledge allegiance then?

While we don't often consider what the Pledge of Allegiance actually means, it contains pretty strong words. The definition of "allegiance" in The Free Dictionary is:

1. Loyalty or the obligation of loyalty, as to a nation, sovereign, or cause.

2. The obligations of a vassal to a lord.

Even if we gloss over the feudal implications of definition two, the first definition is awfully absolute. "Loyalty or the obligation of loyalty."

Do free people really make open-ended promises of loyalty?

It's worth knowing that the author of the pledge was no particular fan of America's (imperfect) tradition of individual liberty. Francis Bellamy was a Christian socialist and a fan of a now quaint-seeming, but then popular movement to reorganize the country along quasi-military, top-down lines in which everybody would be drafted into industrial armies. The goal was sketched out in his cousin Edward Bellamy's once best-selling novel, Looking Backward (a work saved from a certain naive creepiness only by its age).

The pledge was Bellamy's small way of nudging the country away from individualism, toward authoritarian nationalism. His ideal people would pledge loyalty, and wouldn't be free.

After all, free people support governments, institutions and symbols only so long as those things respect their rights and have something positive to offer. Their support is purely conditional. When governments, institutions and symbols displease them, free people trade them in for something they hope will be better, like Americans did in 1776.

The founders weren't really "Pledge of Allegiance" sort of people.

Implicitly, people like Cameron Frazier and Will Phillips seem to understand that point, even if they don't explicitly reject the idea of an oath of loyalty. After all, when you stop reciting a pledge when policies change, it's clear that you've never really made a pledge at all, since your allegiance is conditional.

And that's the way it should be.

Those stubborn kids who refuse to stand to recite the pledge with the the rest of the class may not agree on the reasons for their refusal, but by hedging their bets on their political loyalty, they all prove themselves to be better advocates of liberty than the drones mouthing words they don't understand.

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Tuesday, October 13, 2009

The joys of government health care

The Mackinac Center peeks north of the border to see just how single-payer health care is working out, and gets an earful from the folks who have to deal with the Canadian government's idea of good medicine.


Friday, October 9, 2009

Nobel what prize?

To win the Nobel peace prize, don't you have to have some palpable accomplishments along the road to -- you know -- getting people to stop killing each other? Not planning to escalate an ongoing war with an infusion of new troops might help, too.

So what in Hell has Barack Obama done to earn the damned prize?

To give him the benefit of the doubt, Obama has only been on the job since January. Maybe it's unrealistic to expect him to be a contender for the Nobel Peace Prize this year.

So why was he in the running at all?

But he wasn't just in the running. He won the goddamned thing.

I'm just guessing here, but I think that when Barack Obama went to Copenhagen to lobby for the Olympics, he took a side trip to Oslo to blow the members of the Nobel Committee.

Update: I'm not the first to note this, but the deadline for nominations for the 2009 Nobel Peace Prize was February 1. Fast work, Barry!

Thursday, October 8, 2009

Does Medicaid offer a glimpse into the future of American medicine?

Last week, my wife, a pediatrician, gave a patient a prescription for compounded Tamiflu -- that is, the preparation of a children's dose of the anti-viral drug by breaking down adult-dose capsules and turning them into a liquid suspension. The Swine flu scare has made children's Tamiflu scarce, so compounding is often the only way of getting the drug for kids. Before handing the patient the prescription, my wife's office checked with the insurer to make sure it would pay for compounded Tamiflu. Reassured that the drug was covered, the patient went to get the drug compounded at the only pharmacy in the area that will do the job (Wal-Mart, if you're interested).

Of course, when the pharmacy went to put the prescription through, the insurer refused to pay. Twice.

Oh, no, not another health insurance company horror story! Well, yes it is -- but with a twist. You see, the insurer was AHCCCS -- Arizona's implementation of Medicaid -- a government program that may provide us all with a peek at the future of American medicine.

The problem was cleared up quickly enough once my wife heard about it. She set her staff to work calling the AHCCCS offices and demanding approval of the prescription. The government employees were all apologies and soon authorized compensation for the patient, who had already paid out of pocket.

But that's the way it always is. My wife and her staff play a frequent game of "guess what AHCCCS will pay for today" that has turned them into constant phone pals with bureaucrats down in Phoenix. The AHCCCS people are almost always polite and usually concede the point.

But this happens over and over again.

Tamiflu wasn't approved for use at all just a few weeks ago, even after the CDC recommended the drug for treating Swine flu. Sure enough, my wife (and other doctors, I'm sure) got on the horn and AHCCCS added Tamiflu to the formulary -- the list of drugs for which it would pay.

Yes, she does this from time to time with the private insurers too -- they're no saints, and occasional arm-twisting is required. But not with such regularity as with AHCCCS, and not to the extent that it seems a system is at work.

If there is a system, it's not a system for refusing care and treatment. It's a system for making it a little more difficult to get things paid for -- unless somebody with savvy runs interference. But most physicians' offices don't provide this kind of value-added advocacy service. It's expensive to have staffers on the phone arguing with Medicaid bureaucrats, none of whom can be fingered as a specific villain in any given case. And without savvy advocates, medications and treatments don't get approved. Not incidentally, I'm sure, such how-did-that-happen refusals to pay for even pre-approved care, spread out across the entire system, must represent a fairly substantial cost saving.

This shouldn't come as a surprise. Medicaid is, after all, a political health-care system, rather than a commercial one. It doesn't just charge for services and raise rates as needed; it's given a certain budget to work with, and somehow it has to jam all the demands upon its resources within the limits of that budget. That's not easy.

In countries where politically run health-care systems are the norm, the cost-control measures are more overt. The Los Angeles Times recently published an article about the budget strains to which the government-run health-care system is subject in British Columbia, and the accommodations it has made in response.
Provincial officials recently announced a $360-million shortfall in the $15.7-billion healthcare budget for the fiscal year that ends in March.

The shortage will mean fewer surgeries and longer waits.

The Vancouver Island Health Authority has said it would reduce the number of nonemergency MRIs by 20%; nonemergency patients now are being booked for scans in March.

Vancouver Coastal Health, which serves a quarter of the province's population, said it would eliminate 450 elective surgeries, about 30% of the schedule, during the four weeks of the 2010 Winter Olympics.

And in the rapidly growing suburbs east of Vancouver, the Fraser Health Authority plans to close its spending gap by, among other things, holding the number of MRIs to last year's total, ending $550,000 in service programs for senior citizens and reducing elective surgeries by about 14%.
How do you control costs in a politically run health-care system? You announce "this much care and no more." Ironically, that leaves one woman described in the article crossing the border and paying out-of-pocket for hip surgery in the U.S. to escape a year-and-a-half long waiting list, and has spurred the establishment of technically illegal private surgery centers in the province at a time when many Americans are touting the advantages of government-run systems like Canadian Medicare.

And like Arizona's AHCCCS.

Americans aren't yet ready to face the hard choices that are made by politically run health care systems. That's why we get one unexplained denial after another instead of hard limits on care as a matter of policy. But, when Americans wise up to the fact that state-run medicine has a hard-nosed attitude toward cost control, they're likely to discover that doctors like my wife can't always fix the problem.


Tuesday, October 6, 2009

Stop me, FTC, before I shill again

The most scathing book review I ever wrote was of a copy of a provocative historical work sent to me by the publisher's publicist -- that is, a review copy of the sort that has been provided to writers since the printing press was young. I tore into that book for its illogic and misuse of sources. I still have that book, kept around as a door stop and to boost my son at the dinner table. I'll bet that publicist would be surprised to know that, these days, the Federal Trade Commission might subject me to an $11,000 fine -- not for savaging her pet historian, but for failing to reveal that she'd given "payment" for my review with a free book.

In search of tasks to justify its unfortunate existence, the FTC claims the authority to regulate "endorsements" of products and services. It has just issued revised guidelines (PDF) regulating who must disclose what when they say kind words about anything for which they might be considered to have received compensation, no matter how small. Affected people include celebrities, experts, "regular folks" giving testimony in advertisements ... and bloggers.

The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement.

The whole set of guidelines is problematic for a host of reasons. Rather than dig broadly into the mess, I'll focus on the application of the endorsement rules to bloggers/new media, since that's a topic near and dear to my heart.

And bloggers are the specific target -- ink-stained scribblers and traditional broadcasters need not fret, for specious reasons that all seem to boil down to the number of First Amendment-savvy lawyers The New York Times and CBS have on staff.

The FTC even provides its own scenarios as to when endorsement rules would apply, and the one they offer for bloggers is illuminating.

A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.

A "college student" who just happens to write online about his hobby is subject to federal regulation? Really?

The rules suggest that the company soliciting the review "should advise" the college student, but there's nothing obvious in the rules to insulate the poor, dorm-living nerd from liability should he fail to mention that he got to keep the freebie.

Book reviewers are affected too, prompting MediaBistro to ask, "if it turns out that (some) publishers really do expect endorsements, bloggers might want to ask themselves: If this book is intended as compensation, is it enough compensation?" (Occasional reviewers who find themselves buried under a blizzard of review copies can answer that question easily.)

And in this increasingly DIY era, it's a mystery as to whether legally unsophisticated garage-based musicians or after-school-blogging music fans will have to fork over any fines the FTC may levy for kind words about a new single or album.

But does there even have to be a freebie to constitute "material connections" between reviewers and companies? After all, advertising involves money, and even small blogs can run ads either directly or through services like Google Ads.

And here's another complication: Who is subject to these rules? Oh sure, the FTC says its rules apply to bloggers and that "theCommission does not consider reviews published in traditional media (i.e., where a newspaper, magazine, or television or radio station with independent editorial responsibility assigns an employee to review various products or services as part of his or her official duties, and then publishes those reviews) to be sponsored advertising messages," but just what is a blogger? The FTC adds that "Internet news website with independent editorial responsibility" might also get a pass, but the dividing line is vague, and much of the evolving media is more dynamic and seat-of-the-pants than the FTC wants to pretend. Are the writers at Gawker bloggers? MediaBistro? How about at The Examiner, which employs editors but has much less editorial infrastructure than does, say, The New York Times?

Clearly, though. anybody writing for fun, on their own time, is subject to the new regulations. As media becomes democratized and grassroots in a way never seen before, we've finally reached the point where intrusive media regulations really are reaching into our bedrooms and threatening amateur enthusiasts. These are the people least likely to be willing or able navigate their way through federal regulations regarding what they can say and how it must be said.

The result is either going to be mass defiance of the rules, rendering them irrelevant, or else stepped up and necessarily arbitrary enforcement, resulting in a chilling effect on grassroots media.

Either way, the best way to address the whole issue is to dump the rules -- and the presumptuous, intrusive FTC along with them. Let people figure out for themselves who is and isn't credible, and keep the regulators at a healthy distance from our conversations with one another, whether online or off-line.

Oh, and by the way, I plan to keep reviewing stuff including books, good or bad, and I'll likely keep some of it around -- for reference, or for ballast.

Consider that my disclosure.


Saturday, October 3, 2009

Give the people what they want -- if you can figure it out

During the course of the heated health care debate, as during all matters of excited public discussion, there's been a lot of talk about "what the people want." Do people want single-payer care? Public option? Market-provided medicine? Everybody peddling a scheme for overhauling doctors' offices and chastising insurance companies seems very concerned about what the people want -- and claims to know the public's true desires. But, as most of the chatterers know, or should know, "the people" don't really exist, and they don't want any one thing.

The problem was illustrated in a recent Politico article, which fretted:

Legislators hoping to learn what their constituents think about the issue — and how to vote to keep them happy — face a dizzying deluge of hard-to-reconcile data, some of which suggests that voters are more than a little confused, as well.

What to make of it, for example, when one poll finds that 63 percent think “death panels” are a “distortion” or “scare tactic,” and only 30 percent think the issue is “legitimate,” while another finds that 41 percent believe that people would die because “government panels” would prevent them from getting the treatment they needed?

Or when one survey finds that 55 percent of Americans support the public option, while another says 79 percent favor one — but also notes that only 37 percent people surveyed actually knew what “public option” meant?

Part of the problem is, as Drew Altman and Mollyann Brodie wrote in a 2002 paper on the limitation of health care polling, "you always have to worry that you are polling about things that the average person may not be following closely enough to understand, and that the result you get is as much a response to key words and phrases such as 'federal government,' or 'Medicare,' or 'HMO,' as it is a response to the merits of the policy options being asked about. Policy-option polling pushes the limits of what polling can do, particularly if the policy options are complex."

Beyond that, though, is the problem raised by the French sociologist, Pierre Bourdieu: "Putting the same question to everyone assumes that there is a consensus on what the problems are, in other words that there is agreement on the questions that are worth asking."

Another way of putting it, as presented by political scientist Sidney Verba, is that the “agenda reflects the interest of the poll taker” and “the set of issues covered may be very different from that which is on the mind of the respondents.”

And indeed, we've seen that dilemma at work in spades in recent months. The question that many D.C. insiders want to ask has to do with what the federal government can do to expand access to health care and control costs. The answers that they're getting back, in the streets and at town hall meetings, indicate that many Americans are more concerned with questions about other issues, including government overreach, immigration and federal spending. Plenty of respondents charge that the government caused the problems it now claims to address, and that letting it have any role in the solution will make matters worse. The range of the discussion has only been expanded by the complexity of the health care debate, with hot-button terminology and endless details.

In fact, there is no "the people" to have an opinion about health care (or many other issues). There are many peoples -- ultimately, hundreds of millions of individuals -- who have not just different answers, but different questions in mind. That is, when they even understand what everybody else is so exercised about.

Policy makers sometimes seem to want to frame public discussion as if we're all a group of friends deciding on where to grab a bite to eat. But how do you get 300 million people to agree on Chinese instead of pizza -- or even that it's supper time at all? Some of them just don't want to be bothered with questions or obligated to follow the discussion -- which isn't the same thing as saying that they don't care if you drag them along to a dinner theater.

Because of the fractious nature of any society and the suspect nature of an apparent majority opinion on any issue, democratically asking everybody's opinion is less an ideal way of deciding each and every matter than it is a least-bad means of determining what policy will tick-off the fewest people on those very few matters that require some sort of collective response.

Do you really want to come to a policy conclusion that will please a nation of 300 million people? Then get ready to craft 300 million separate solutions.

Or else concede that, no matter how much polling you do, no matter how much effort you make to discern what "the people" want, any effort to make top-down policy for an entire nation is ultimately authoritarian, with the solution crammed down the throats of dissenters.

Then again, we could just get rid of the top-down policy-making and let people run their own lives and come to agreement with one another on voluntary, non-coerced solutions.

Hmmm ... Perhaps we could come up with a poll to ask what people prefer ...


FBI says: Shut your mouth

A federal appeals court may have slapped the Federal Bureau of Investigation last year for its misuse of gag orders to prevent discussion of government investigations conducted under the authority of National Security Letters, but that hasn't slowed the feds very much. According to the American Civil Liberties Union, despite a court's finding that such gag orders are constitutionally suspect and should be subject to judicial review, the FBI continues to muzzle recipients of the controversial letters, preventing them from participating in public debate over the Patriot Act and the security state.

National Security Letters are powerful tools that allow federal agents to obtain information about investigation targets from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies on their own say-so, without judicial review. Some 47,000 such letters were issued in 2005 alone, according to the Department of Justice's Office of the Inspector General (PDF). The letters don't receive much public discussion, probably because many of the recipients are also issued gag orders, forbidding them to discuss the experience.

Those gag orders were found to be constitutionally suspect exercises of "prior restraint" in a decision issued last year by the Second District U.S. Court of Appeals. In its decision, the court said:

The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity.

While the court stopped short of barring the gag orders, it did say each order should be subject to judicial review to allow the target a chance to object.

But, says the ACLU, the FBI is "continuing to unconstitutionally enforce its five-year-old gag order on a John Doe NSL recipient and his ACLU attorneys."

"The FBI's misuse of its gag power continues to prevent NSL recipients like Doe – who have the best first-hand knowledge of the FBI's use and abuse of NSL power – from participating in the Patriot Act debate in Congress," said Melissa Goodman, staff attorney with the ACLU National Security Project.

Unable to speak out about their experiences as the subjects of National Security Letters, recipients of such letters, including businesspeople and librarians, can only stand on the sidelines while the discussion is conducted in theoretical terms.

Worse, the ACLU maintains that the gag order on its John Doe client is being used to suppress the revelation that an NSL was used in a search for records it was not legally entitled to obtain.

The Senate Judiciary Committee is currently considering legislation (PDF) that could limit the use of National Security Letters.

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Thursday, October 1, 2009

Zero tolerance gets detention

Last year, a ten-year-old boy in North Carolina was suspended from school because he had a broken pencil sharpener in his possession. The tiny sliver of metal that shaves wood away from the graphite was deemed to be the equivalent of a cavalry saber, putting the school in, as the local paper put it, "the precarious position between the district's zero tolerance policy against having weapons at school and common sense." Arizona's Savana Redding had to go to the U.S. Supreme Court to find justice after she was strip-searched at her school on suspicion of possessing ibuprofen -- the common and legal painkiller that was, nevertheless, forbidden from school grounds. That such incidents are no rarity is clear from a Web search on "zero tolerance" and "schools" and by legislation that just took effect in Texas returning a modicum of rationality to the treatment of students found in possession of pocket knives, pain relievers and other items forbidden by insanely restrictive policies.

Horror stories related to zero-tolerance policies have grabbed headlines for as long as the rigid policies have existed. That could have been predicted by anybody with half a brain. If a policy draws unforgiving lines when it comes to "violence," "drugs" and "weapons," then it's inevitable that children will be expelled and even arrested and jailed for writing gory stories, toting penknives and sharing aspirin.

As the outrage, ridicule and lawsuits in response to zero-tolerance, even the legislators and educators who'd implemented the policies to absolve themselves of the responsibility for difficult decisions began to back away from what they had wrought. Even the laziest school administrator must recoil at the response to nine- and ten-year olds hauled away in handcuffs for drawing violent pictures with crayons, if not at the reality of the incidents themselves.

So, finally, we get legislation intended to alleviate the worst abuses of zero-tolerance policies.

Perhaps not coincidentally, Texas's "law relating to consideration of mitigating factors in determining appropriate disciplinary action to be taken against a public school student" was signed by the governor just days after the U.S. Supreme Court ruled that the strip search of Savana Redding was unconstitutional. The law eliminates the unforgiving nature inherent in prevailing rules by requiring that educators consider four factors when considering what should be done about infractions of school rules. Specifically, the law mandates:

consideration will be given, as a factor in each decision concerning suspension, removal to a disciplinary alternative education program, expulsion, or placement in a juvenile justice alternative education program, regardless of whether the decision concerns a mandatory or discretionary action, to:

(A) self-defense;
(B) intent or lack of intent at the time the student engaged in the conduct;
(C) a student's disciplinary history; or
(D) a disability that substantially impairs the student's capacity to appreciate the wrongfulness of the student's conduct;

Strictly speaking, nothing about the law specifically ends the madness of children penalized for pocket knives, drawings and painkillers, but it does strip school officials of the ability to claim that their hands are tied by black-letter rules. From now on, the responsibility for each school disciplinary decision in Texas can be laid at the feet of a human being, not passed off to a piece of paper or a few paragraphs on a Website.

Still, Texas Zero Tolerance, a group formed in response to the horror stories, warns that "What the bill does not do, however, is extend due process to the accused children and their parents. ... Until parents are allowed in the principal’s office before punishment has been decided, we will continue to see travesties of justice."

Also, the group wants to see a formal appeals process in place for challenging disciplinary decisions (some of them pretty devastating, such as expulsion) up the bureaucratic food chain.

Until that happens, laws like the one taking effect in Texas will be only an incomplete first step toward keeping public schools as viable contenders in an era when educational alternatives chosen by families, including charter schools, homeschooling and private schools, are becoming increasingly available and attractive.

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So you can't spend your way back to prosperity?

"Stimulus Spending Doesn't Work," a simply titled piece in the Wall Street Journal by prominent economist Robert J. Barro and Charles J. Redlick, is rightly getting lots of play. If I'm reading the somewhat dense economic-speak correctly, the column says the evidence from past massive government spending -- primarily military expenditures during the world wars, the Korean War and the Vietnam War -- shows that ripping through the federal checkbook actually shrinks the GDP relative to expenditures. Taxpayers can hope for a dollar-for-dollar return on the expenditures only when unemployment rises to double digits.

For annual data that start in 1939 or earlier (and, thereby, include World War II), the defense-spending multiplier that applies at the average unemployment rate of 5.6% is in a range of 0.6-0.7. A multiplier less than one means that, overall, other components of GDP fell when defense spending rose. Empirically, our research shows that most of the fall was in private investment, with personal consumer expenditure changing little.

Our research also shows that greater weakness in the economy raises the estimated multiplier: It increases by around 0.1 for each two percentage points by which the unemployment rate exceeds its long-run median of 5.6%. Thus the estimated multiplier reaches 1.0 when the unemployment rate gets to about 12%.

Barro and Redlick's piece, and the research on which it's based, have powerful implications for the massive "stimulus" bill the federal government passed earlier this year, which was intended to spend our way back to prosperity. If the Journal OpEd is right, the stimulus bill is not just running up deficits and expanding the money supply to the point that it devalues money, it's making the long-term economic situation worse.

Barro doesn't stand alone on this point. The Congressional Budget Office quietly and drily raised similar concerns in March in A Preliminary Analysis of the President's Budget and an Update of CBO's Budget and Economic Outlook. In a section helpfully labeled, "Estimated Macroeconomic Impacts of the American Recovery and Reinvestment Act of 2009, Fourth Quarters of Calendar Years 2009 to 2019," the CBO predicted a bump for the economy through 2012, with the "stimulus" spending shrinking GDP starting in 2015 -- and that was using optimistic assumptions about the multiplier. The CBO explained its reasoning in a separate letter (PDF) to Rep. Charles Grassley, saying:

In contrast to its positive near-term macroeconomic effects, the legislation will reduce output slightly in the long run, CBO estimates. The principal channel for that effect, which would also arise from other proposals to provide short-term economic stimulus by increasing government spending or reducing revenues, is that the law will result in an increase in government debt. To the extent that people hold their wealth as government bonds rather than in a form that can be used to finance private investment, the increased debt will tend to reduce the stock of productive private capital. In economic parlance, the debt will “crowd out” private investment.

So even a Keynesian-style multiplier gets you a brief short-term gain with long-term suffering. If that multiplier is mythical (or negative), as Barro and Redlick suggest, you just get the suffering.

At this point, the last apparent unalloyed enthusiast for stimulus spending appears to be Paul Krugman, who has pretty much been reduced to ad hominem attacks on any economist who disagrees with him, and faith-based veneration for the moldering economic ideas of John Maynard Keynes.

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