Farrellblogger .

2003-05-05T12:56:00.000-04:00

Moving notice

The blog is dead. Long live the blog. Am at last transplanting to the groovy and elegant Movable Type. My new address is www.henryfarrell.net/blog. look forward to seeing y'all over there.

Update: well not quite there yet. It looks as though the DNS change hasn't propagated to all the root servers - so that some are still screwing it up. Ergo - some people can read the new blog; others can't

Update 2. Now all working. Blogger farewell!

2003-05-04T22:55:00.000-04:00

Waiting for the man

Much grumpiness as I wait for my web address to catch up with my Movable Type installation; it's frustrating to have a nice new blog but not to be able really to share it with the world. In the meantime, Stephen Karlson has some interesting thoughts (links bloggered - scroll down to two separate postings) in response to my, and Kieran's posts. He agrees with McArdle to the extent that he believes that economics stands apart from the other social sciences, in terms of the power of its parables. I'd disagree with him, in a qualified class of a way, but it's not worth getting into an argument over. He also defends game theory as a means of modeling cooperation - and here, I think he overstates the case a bit. First, I should make clear what we agree upon. Karlson states the main result of the folk theorem precisely, which I didn't do (I didn't want to scare non-game theorists away), but I don't think he disagrees with the point that I was trying to make. There exist vast numbers of alternative equilibria which are just as "good" in game theoretic terms as the one that the modeler has chosen. Some strategy combinations are not equilibria, and so can be eliminated, others may involve implausible assumptions (such as incredible threats) and may therefore be ruled out by more restrictive equilibrium refinements (sub game perfect equilibrium). But multitudes remain? So what's to protect us from silly and spurious models? As Professor Karlson more or less admits, not much more than the implicit norms governing the field, "the onus is on the researcher to think carefully about the objectives of the agents and how they interact. It is bad form to set up problems in such a way as to force the results." Which may work most of the time in practical terms, but isn't very "scientific." The key point is that there is nothing within game theory itself which distinguishes between equilibria that properly represent how agents think and interact, and equilibria that don't. In order to distinguish the one from the other, the game theorist has to rely on his own intuitions as to what is plausible, and what isn't - just like the rest of us common or garden social scientists. And sometimes they get it wrong - I used to go to meetings of the International Society for the New Institutional Economics a lot, and heard some really awful papers being presented - bizarre notions about how society had evolved, without an ounce of empirical research to back them up - but with nice models. This isn't to say that there's not any value to game theory, not at all. Game theory gives us a powerful way of simplifying and representing certain social relations, that serves as a useful intellectual astringent in itself, and may sometimes lead to non-obvious conclusions. When done properly, it's also damn elegant - some of the work that Avner Greif, say, has done in economic history, or Randy Calvert has done in political science is lovely to behold, if you like that sort of stuff (and I do). And it more or less guarantees consistency between premisses and results. But this comes at a cost; there are certain aspects of s ocial interaction that simply cannot be represented using conventional game theory. And, what's more to the point, a "good" game theoretic model of a social situation relies in the end on the intuition and good judgement of the modeler, which game theory itself cannot substitute for. In this at least, economists aren't that much different from the rest of us social scientists. Karlson has more interesting things to say about transaction cost economics - but I'll save my response for later.

2003-05-03T16:19:00.000-04:00

Light blogging

Light blogging for the next couple of days, as I get ready to migrate over to Movable Type. Did the hard stuff yesterday, getting it up and running; today, I'm just goofing around with templates, rss etc, while I wait for my new domain name to propagate properly. Improved service shortly.

2003-05-01T17:36:00.000-04:00

Ethnic discrimination

Eugene Volokh links to a piece on Francis Boyle at the University of Illinois, who complains that he's been discriminated against because he objected to a "sacrilegious" pub-crawl organized by the Ph.D. students every St. Patrick's Day. Funnily enough, I experienced precisely the opposite form of discrimination during my grad school days in Washington - nobody, nobody was prepared to buy me a drink for being Irish on St. Patrick's Day, despite 100% authentic Republic of Ireland passport, brogue, and all of the other Hibernian accoutrements that one could possibly ask for. Not fair at all, if you ask me.

2003-05-01T16:47:00.000-04:00

Dictionaries of Imaginary Places

The Volokhs (most recently Jacob Levy) have been blogging about maps of imaginary places. Which is a funny coincidence, as I've just started to read a book that Maria gave me for my birthday last year, Franco Moretti's Atlas of the European Novel. Moretti takes inspiration from the Annalistes and Benedict Anderson in his rather nifty exploration of the geographies of 19th century novels, with maps showing the relationships between places in novels by Jane Austen and others. This not only shows us the places that novels describe, but also the terra incognita (spaces that are ignored in these novels), as well as the relationship between geography and plotline, and between the places described and the contemporary marketplace for these books. I have some way to go before I finish the book - but it looks like being a bit of a tour de force. Will probably stick up a review on the blog sooner or later. Simultaneously, I'm reading Edward Carey's new novel, "Alva and Irva," which shows an exemplary degree of care in constructing an entirely imaginary city - apparently the author modeled his city in clay (with eponymous protagonists as giant figures dominating the landscape) before starting to write about it.

Update: Looks like Cosma Shalizi beat me to the punch on reviewing Moretti.

2003-05-01T16:28:00.000-04:00

A little knowledge is a dangerous thing

Megan McArdle has a lengthy - and rather silly - post on economics as a fortress built upon the solid foundations of the Real Scientific Mindset, as opposed to political science and sociology, which are shoddily built outposts of the humanities. In so doing so, she shows us yet again that Economics 101 and "Atlas Shrugged" is a dangerous combination. Not that I'm opposed to economic methodology - far from it - unlike Chris Lawrence I'm one of those political scientists who uses economic theory quite a lot. But I'm continually surprised at how often people who don't necessarily know all that much about economics tend to overestimate its "scientific" validity, especially if their politics are libertarian.

Daniel Davies, as usual, gets it right in the comments section for McArdle's post - the kinds of economic theory that McArdle etc are interested in are partial equilibrium models, whose general scientific validity is precisely diddly-squat. Unfortunately, McArdle doesn't seem to know what the difference between partial and general equilibrium is. Donald (now Deirdre - long story) McCloskey has a lovely little book called "The Rhetoric of Economics" which shows how dependent partial equilibrium models are on their initial assumptions - by jiggering these a little, you can get whatever result you want, more or less. Models of this sort are little more than "Just So" stories with nice differentials. While there is such a thing as general equilibrium analysis (the Arrow-Debreu model), that provides more general results, it relies on hopelessly unrealistic assumptions (as its co-creator, Ken Arrow cheerfully admits), and thus is perhaps more interesting as an abstract result in social choice theory, than as a specific contribution to our scientific knowledge of how markets work. Game theory - don't start me on game theory. A notorious little result called "the folk theorem" means that pretty well everything goes in the infinitely iterated games that are needed to model moderately complex social interactions - the best that economists and game theoretic social scientists can do is to show that whatever particular constellation of strategies that they're interested in is an equilibrium, happily ignoring the fact that there are umpteen billion other possible equilibria out there which are equally plausible from a game theoretical point of view. Game theorists have been engaged in the search for convincing equilibrium refinements that would get rid of this problem for decades; Ariel Rubinstein (a very distinguished game theorist) rather rudely dismisses this as analogous to the quest for the Holy Grail.

Not only does McArdle overestimate the scientific power of economics, but she underestimates the contribution of political science and sociology. James Joyner is right on the nail - the problem is that the subject matter of political science is vastly more complicated than that of economics. And it's not only Joyner who says this. The late Mancur Olson, who straddled the division between economics and political science rather nicely, talks of how politics involves goods that are "indivisible", and thus vastly more difficult to measure - politics is more complicated than economics because it doesn't involve goods that can be divided up into neat and discrete little bundles. Doug North, who has a Nobel Prize in economics says that an unthinking extension of economic theory to political science is a Very Bad Idea, precisely because politics is so much more complex. Instead, he advocates a transaction costs approach based on the assumptions of costly information, of subjective models on the part of actors to explain their environment and of imperfect enforcement of agreements.

As I said, there's something a little strange about the marriage of economics (particularly public choice theory) and libertarianism - Julian Sanchez described it quite well in a post that doesn't seem to be available anymore, where he talks about how public choice offers a kind of legitimating scientific ideology for libertarian ideas. And it is an ideology - and not all that much more than that. Which isn't to say that economics can't be used quite well to illustrate libertarian concepts - but it can be used to illustrate other views of society very nearly as easily, and with precisely as much "scientific" validity. Which is to say, none at all. Where economic and rational choice approaches to explaining human behaviour have their value is not in scientific validity in any general sense of the word, but rather in logical consistency. Constructing a game theoretic model forces you to be precise about what microfoundations you are employing, what preferences actors have over outcomes etc, and if it's done right, it allows you to be sure that the outcomes of the model are consistent with the premises. And that's it. Lousy arguments will still remain unconvincing, even if they're tarted up as sub-game perfect equilibria. Good arguments will still be good - for reasons that can't be reduced to a constellation of actors, strategies and outcomes. Partial equilibrium models and game theory provide us with a good language for describing certain kinds of social and economic relationships, and for testing the internal consistency of the arguments that we make about these relationships. They don't provide us with much of a scientific foundation beyond that.

Update: Kieran Healy fillets McArdle with savageness and style.

And Dan Drezner (temporarily compering with the Volokhs) physically winces at McArdle's post.

2003-04-30T20:20:00.000-04:00

Bloggered links

Just a quick note prompted by the continuing Emergency - lots of people seem to be unaware that bloggered permalinks can be unbloggered by republishing your archives. Me - I've been trying to move to Movable Type - but encountering technical difficulties with the university server - will probably be shifting to TypePad when it's up and running.

2003-04-30T19:48:00.000-04:00

On the bookshelf

Eugene Volokh blogs about Sean McMullen's "Souls in the Great Machine," and "Voyage of the Shadowmoon," both of which he evidently liked quite a lot. I've only read the former, but couldn't see the attraction myself - tolerably well written, and nice background, but I thought there were problems in plotting, and various SF tropes that didn't quite come off as believable. I find China Mieville's "Perdido Street Station," and "The Scar" much more to my taste - splendidly written, and -open- in a way that most science fantasy isn't - they give a real sense of a very complex world, which works according to its own peculiar logic, rather than being custom-built to fit the constraints of a bog-standard trilogy. John Holbo is also a Mieville fan, and is promising a post on the relationship between Fritz Lieber's Lankhmar, Terry Pratchett's Ankh-Morpork (which as the similarity of names suggests, started as a parodic version of Lieber's city), and Mieville's New Crobuzon. But Mieville comes about dangerously close to Real Literature (although it's still fun) - if it's splendidly written trash that you want, you can't go far wrong with George R.R.Martin's "A Song of Ice and Fire" series. Jacob and Matt can keep their Robert Jordans and Brian Herberts - for guilty pleasure reading, Martin just can't be beat. Complex politics (borrowing liberally from the War of the Roses), decent writing, and best of all Martin's willingness, which is entirely uncharacteristic of the genre, to kill off sympathetic characters at unexpected moments. The covers on the US editions are pretty awful - the first book, "A Game of Thrones" has a Fabio look-alike staring broodingly into the middle distance - but the contents are quite addictive. The only problem is that book number four in the series -still- isn't out, nearly two years after it was supposed to be published - causing extraordinary angst to me and a legion of other George R.R. Martin junkies. Expect an extended blogging silence from both me and Maria (also a fan) when it finally hits the shelves.

Update: moving onto the sublime, Patrick Belton displays excellent taste in touting John McGahern's new saga (link to Oxblog - permalink bloggered) - which I'm still waiting on myself, but have heard wonderful things about from friends. Apparently it's one of those books where not much happens in plain, but very beautiful prose. McGahern is now a sort of elder statesman of Irish literature, but used to be denounced by bishops from the pulpit; Ireland has changed a lot in the last thirty years.

2003-04-30T19:17:00.000-04:00

Markets and spontaneous order

Lynne Kiesling has an interesting post up about "slugging" in the DC area; local "High Occupancy Vehicle" rules say that vehicles travelling on certain highways have to have three individuals inside, in order to limit congestion. This has led to a self-referential little social world in which people who would otherwise drive into work on their own, pick up strangers in order to meet the requirement. A whole informal social infrastructure has built up around this, with focal points (places where drivers know that they can find potential passengers and vice versa), informal rules and the like. I remember a friend telling me of similar arrangements that have sprung up in San Francisco. As Lynne says, this is a nice example of Hayekian spontaneous social order; however, I disagree when she describes this as evidence of "market processes in action." Sure, it's exchange - but as economic sociologists tell us, not all forms of exchange in the absence of the state are markets. More to the point - should we necessarily and always celebrate "spontaneous order" as providing superior results to more politicized forms of exchange, as libertarians would tell us? Apart from the fact that the example at hand, "slugging," happens in the shadow of state regulation, there are sound theoretical reasons to believe that spontaneous order can involve persistent, and substantial distributional inequalities. This is the main subject of a book by my friend, Jack Knight, Institutions and Social Conflict, which gives a nice game-theoretical illustration of the mechanisms whereby power inequalities between actors can lead to informal institutional rules that persistently skew distributional outcomes in favour of more powerful actors, even in the absence of the state, standard politics, or centralized bargaining. A cut-down version of the argument is available here in a paper that Jack and I have cowritten.

2003-04-30T11:55:00.000-04:00

Scholar bloggers

A whole lot of recently discovered scholar-bloggers have been added to the blogroll, many of them courtesy of Andrew R. Cline's list of "professors who blog." I reckon that the blogroll now has a reasonably comprehensive list of the social sciences, with holes in the humanities and big gaping chasms in information technology and the hard sciences. Anyone who knows of other scholarly bloggers who meet the criteria, let me know!

2003-04-29T18:18:00.000-04:00

Weber and academic discourse

Timothy Burke has started off a fascinating debate (although Matt Yglesias isn't as enthused) on the circumstances under which academics can or can't have serious intellectual conversations; Kieran Healy, Invisible Adjunct and Chris Bertram all weigh in. Kieran channels Max Weber (and specifically, Weber's wonderful essay,"Science as a Vocation") as an alternative to Burke's Nietzche. As Weber says, there's an inevitable impulse towards specialization in modern science, and it's by no means necessarily a bad thing. But there's another relevant argument in "Science as a Vocation" that Kieran doesn't mention, which leans heavily on Nietzche, and thus supports Burke's view of academic life. Weber makes it clear that there simply isn't much scope for scholarly discussion between individuals espousing different world views. The most that science can do, in Weber's account, is to ensure that world views are "responsible;" that is, that each view is rationally articulated, so that its consequences and implications are fully understood. Except within these very narrow limits, science has no business telling anyone which world views they should or should not adopt; that's the business of prophets. Each world view, in the end, rests on a set of priors that are not themselves open to scientific explication or analysis. In Weber's understanding, individuals must choose a view of the world and act upon it, but they also must remain aware that their choice is radically contingent; there is no underlying basis for determining whether they are "right" or "wrong" in their choice, and no way to determine whether their choice is better than that of someone else who has made a completely different, and radically incompatible one. As Weber describes it;

"So long as life is immanent and is interpreted in its own terms, it knows only of an unceasing struggle of these gods with each other. Or speaking directly, the ultimate possible attitudes toward life are irreconcilable, and hence their struggle can never be brought to a final conclusion. Thus it is necessary to make a decisive choice."

In other words, Weber thinks that serious debate among different viewpoints is highly unlikely to result in agreement; one simply can't convince someone else that their world view is flawed on rational grounds; a theme that he develops further in "Politics as a Vocation." In PaV, Weber contends that cannot define an ultimate "goal" of politics, or even weigh the respective merits of different policies or political outcomes. There are as many versions of the politically good as there are world views, and there is no ultimate benchmark against which the validity of these world views can be tested. His view is a tragic and individualistic one; politics, in its richest sense is not about reaching consensus so much as it is about the heroic individual taking a stand, and following it through, even though she knows that there isn't any fundamentally grounded justification for the stand that she has taken. "Hier stehe ich, ich kann nicht anders" and so forth. If Weber is right, then the lack of real debate among academics that Burke deplores may be unavoidable. Academic debate (or other kinds of debate) may simply not be much good at resolving the vital issues of life that people disagree on. Of course, I think that Weber is much too pessimistic in his account of science and politics, but his argument is rich, nuanced, and important.

2003-04-29T11:47:00.000-04:00

Zapp's revenge

John Holbo is taking a break from Stanley Fish-bashing; or more precisely, he's decided to write it up as an academic paper instead. As Matthew Yglesias says, there's a trade-off between blogging and tenure-worthy activities - something I should be paying more attention to myself; I've got a book to write this summer. But anyway, John's posts remind me of a Stanley Fish story which I heard from a friend who also teaches in the humanities in Duke. Apparently, there's a door in the Duke University English Department, with a rather elaborate brass nameplate, inscribed in flowing italics with the words "Professor Morris Zapp." Now, as evry fule kno, Morris Zapp is a fictional character in David Lodge's academic comedies, a fictional character who is, moreover, rather transparently based on Stanley Fish. So hipper-than-thou first year Ph.D students arrive in Duke every year- they all know about the Fish-Zapp connection, and assume that Stanley Fish is demonstrating that he can take a joke, by putting this nameplate on his door. And they all line up outside so that they can talk to the Great Man, and inveigle him into becoming their Ph.D. advisor. However, the door in question is a broom closet that is perpetually locked, so that they wait in vain, until some kindly passer-by lets them know that they've been had. It's called "Zapp's Revenge" in the Department.

2003-04-29T00:28:00.000-04:00

The Semantics of ugh!

Caveman linguistics courtesy of Caveat Lector. It's splendid horse-flop, impossible to resist from its opening line on, "Linguistics is a rich and efflorescent field, being enriched and fertilized by the day."

2003-04-28T23:36:00.000-04:00

Who was drunk as a rule

A new addition to the blogroll, that I've been meaning to put up there for months, Slugger O'Toole. Indispensable if you've any interest in what's happening in the peace process (and otherwise) in Northern Ireland. It's doing some particularly fine reading of the tea-leaves at the moment; murky maneuvrings between Unionists, Nationalists, Republicans and the UK and Irish government over an IRA statement that gives everyone else most (but crucially, not all) of what they've been looking for.

2003-04-28T20:41:00.000-04:00

Multilateralism and democracy building

Via Oxblog, this very interesting WP op-ed by Rachel Belton. Belton argues that international coalitions do a lousy job at democratizing countries: they tend to get caught up in infighting among different countries, are bad at seeing the big picture, and tend to overwhelm local governments. In contrast, she argues that the US military has overseen the only two successful democratizations post WWII - Japan and Germany*: it can be trusted to see what's needed, give leeway to local authorities, and get out as soon as it's succeeded. Belton has some good points - but also (as is probably inevitable in an op-ed) gives a pretty one-sided account of things. She elides the distinction between international coalitions (ad-hoc, necessarily fractious) and international organizations (rather different creatures, with their own benefits and drawbacks). International organizations can - and have - played a very important role in bedding down democracy - in a variety of cases that Belton doesn't consider. Successful democratizations with substantial outside intervention aren't just limited to Germany and Japan - they include Portugal, Spain and Greece (where the EU played a key role) and Central/Eastern Europe in the 1990's. In both cases, as I've argued before, the EU played a key role; it helped support pro-democracy forces within these countries before democratisation, and then provided these countries with a set of external institutions that bolstered democracy once it had taken root. Something similar happened in the three Baltic countries - Estonia and Latvia in particular - which faced a serious risk of imploding in the early-mid 1990's due to ethnic tensions. With EU support, the OSCE's High Commissioner on National Minorities brokered a set of democratic compromises (changes in institutions and laws) which provided the basis for solid and flourishing democracy in these countries; something that few would have predicted at an earlier juncture. The reason that these multilateral organizations have been successful in these instances is that they were able to portray themselves as relatively disinterested - genuinely committed to supporting democratic norms rather than in it for the money and power. In specific instances such as instability in the Baltics, they could legitimately broker compromises that weren't liked by all the domestic actors in question, but that were perceived as genuine efforts to promote and sustain democratic institutions.

The basic point is a simple one - there's something important about the relationship between "thick" multilateral institutions and democracy that isn't captured by Belton's arguments. Broadly based multilateral organizations provide a degree of legitimacy that single countries, such as the US, simply don't have, especially just after they've told most of the rest of the world to go shove it. Any regime which is set up by the US is likely to have enormous problems of democratic legitimacy with its own people, with neighboring countries, and with the world in general. International organizations such as the UN may be poor substitutes for genuinely legitimate international actors in some ways, but they're what we've got. And they have (at least potentially) the capacity to act as neutral arbitrers, in a way that invading unilateralists don't. US actions will inevitably be perceived to stem from the narrow and selfish interests that America has in the region - oil, geo-strategic positioning etc - rather than any heartfelt concern for the well being and wishes of the Iraqi people. Bluntly put, this will almost inevitably mean that any regime installed by the US will be regarded as a puppet regime, will be unstable, and will thus have to resort to all sorts of nasty behavior to stay in power. The US couldn't have chosen a worse way to set about creating democracy in the region - and contra Belton, its biggest problem is precisely that it has rejected any serious role for multilateral organizations.

*NB that the French and English had a role in building democracy in Germany post WW-II as well as the US.

2003-04-28T19:28:00.000-04:00

bloggers in the news

Am sitting down watching NewsHour on PBS, waiting for the special report that they're doing on blogging, but scholar-blogger Juan Cole has already made an appearance in an unrelated segment, talking about the prospects for democracy in Iraq. The revolution is underway ...

2003-04-28T17:38:00.000-04:00

Crying wolf

A lot of people have been blogging about this ABC News article, which suggests that the administration was being, shall we say, a little disingenuous in hyping up Iraq as a clear and present danger to US citizens. Not exactly news, but interesting that sources within the administration have now confirmed it. It's worrying though, to see how the administration's policy on Iraq has fed into the current, very serious problems that it's facing in North Korea. The administration has sought to use Iraq as a chastening example that might chasten other regimes that might be interested in supporting terrorism or developing WMDs. But it may have directly the opposite effect. In North Korea, as my U of T colleague David Welch has suggested, action against Iraq, and rhetoric about the "Axis of Evil" has been perceived as a direct threat of invasion, very probably helping to push the North Koreans into hastening their nuclear program. Iran, similarly, has clearly been signalling that it may have nukes too, in the presumption that this makes it less likely that the US will invade. The US invasion of Iraq has been perceived as beating the bejasus out of a rather toothless tiger; if Iraq had a successful post-sanctions regime nuclear weapons program, we've yet to see evidence of it. But the US has approached North Korea much more gingerly, precisely because of the worry that Pyongyang has a nuclear missile or two salted away. This gives a clear message to any dictator with half-way serious ambitions of threatening world peace. If you don't have nuclear weapons, but are perceived by the US as someone who might develop them at some indefinite point in the future, then you run the risk of invasion. If you do have nuclear weapons and delivery systems, you probably don't have anything to worry about. Therefore, if you can, you should develop nukes in short order, creating as much informational ambiguity as possible about whether you do or don't have them in the interim. In short, a more aggressive and threatening US posture may encourage rather than discourage nuclear proliferation, at least among states that are already close to creating weapons.

2003-04-25T20:15:00.000-04:00

Distributed Denial of Service

Via John Naughton, this link to Bruce Schneier's discussion of a fascinating research paper on real world distributed denial of service attacks. The idea is simple. There are a remarkable number of companies out there, that will send free catalogues by snailmail if you fill out forms on the WWW. A simple Google search for these forms will give you over 250,000 hits. With basic Perl or API skills, you can write a script that will fill out hundreds of thousands of forms automatically, in the name of a specific individual, or in the name of all individuals within a specific postal code, or all individuals bearing a specific last name in a postal database, or whatever, and just sit back as the person in question finds themselves deluged beneath torrents and torrents of uninvited junk mail. What's scariest is that you don't need much in the way of programming skills to do it; any script-kiddy with 2 brain cells to rub together can cause havoc. Moreover, as Schneier documents, collective action problems mean that it would be incredibly difficult to come up with a coordinated solution.

2003-04-25T13:55:00.000-04:00

Ein Volk, ein Reich, ein Euro

Brad de Long gives extensive quotes from an article by Martin Feldstein in the FT, telling Britain to stay out of the euro. Feldstein accurately identifies himself as a long time skeptic of European economic and monetary union. He's less forthcoming about the precise nature of his skepticism, which goes (or at the very least used to go) far beyond the standard Optimal Currency Area nostrums that he cites in the FT piece. Feldstein wrote a quite notorious article in Foreign Affairs back in 1997, predicting that even though the EU was supposed to end all wars, the euro would likely lead to "increased conflict" among the EU's member states. What kinds of conflict? Well, "[a]lthough it is impossible to know for certain whether these conflicts would lead to war, it is too real a possibility to ignore in weighing the potential effects of EMU and the European political integration that would follow." Feldstein also ruminates darkly about Germany's aspirations towards European hegemony, citing Helmut Kohl's statement that "Germany is our fatherland, but Europe is our future" as being "not without ambiguity."

Feldstein's 1997 piece is deeply silly in the way that only breezy and over-ambitious articles for foreign policy journals can be silly. The EMU has led to tensions between member states, but not of the sort that Feldstein mutters about; his arguments display a deep and absolute incomprehension of what the EU is. They're interesting, however, as a harbinger of things to come. Their main trope is that there's something shifty about the European Union, which has to do with all the nasty things that went on in continental Europe during the 1930's. This of course has become one of the intellectual givens of US jingoists, who simultaneously see the Europeans as (a) effete tree-hugging peace-loving surrender monkeys, and (b) sinister, anti-Semitic conspirators on the way to recreating a European Reich-by-stealth. Believing both of these things at once is a rather impressive feat of intellectual gymnastics; Feldstein was one of the first people to show - by demonstration - that such gymnastics are possible, if you're sufficiently limber. Glenn Reynolds and the boys owe him a vote of thanks.

2003-04-24T16:23:00.000-04:00

Hard boiled fiction

I wrote a post a couple of months back on game theory and Richard Stark's Parker books. I reckoned that these hard boiled crime novels had the same view of human nature as game theory: cooperation is possible, but only where the long term benefits outweigh the long term costs. Parker. And I suggested that it wasn't a coincidence that so many technical terms from game theory (Prisoner's Dilemma, Grim Trigger Strategy, Sucker's Payoff) sound like the titles of 1930's dime-store classics. Well, it looks as though the influence goes the other way as well. I'm now reading the next-to-most recent Parker novel which has a brief discussion of game theory and the Prisoner's Dilemma (although the character talking about it doesn't quite get it right). Richard Stark is, of course, a nom-de-plume of Donald Westlake, who has to be one of the best popular novelists of this century. His Parker books are note-perfect, while the crime caper novels he writes under his own name (most recently, Put a Lid on It) are just as well written, and damn funny too. One of these days, I'd like to teach a course on politics and society through popular fiction. This would feature not only Westlake but Terry Pratchett (see Kieran Healy), Steven Brust and Emma Bull (their Freedom and Necessity is a splendid Trotskyist historical potboiler, vividly recreating Chartist conspiracies in Britain), China Mieville (his New Crobuzon as the Great Wen and Armada as a comment on libertarian utopias). And that's only for starters. Sadly, unlikely that I'll be able to do it for another year or two given my other commitments.

2003-04-24T13:53:00.000-04:00

How the Scots destroyed civilization

Iain Coleman blogs an essay claiming that Scotch-Irish immigrants to the South are responsible for the strong streak of xenophobia and intolerance that runs through US society today. It's a refreshing read, if only as a partial antidote to its polar opposite: the ethnic chest-thumping literature that is propagating like kudzu vine along the non-fiction shelves of our bookshops. This worrying trend began with the Irish of course; Thomas Cahill's How the Irish Saved Civilization was a sleeper hit a few years back. Cahill can't be blamed for his success, but his huge sale figures have had rather unfortunate consequences. Now we have umpteen volumes making similar claims for other nationalities; e.g. Sprezzatura: 50 Ways That Italian Genius Shaped the World, and the rather remarkably titled, How the Scots Invented the Modern World: The True Story of How Western Europe's Poorest Nation Created Our World & Everything in It,, available in umpteen copies on the display table in the local bookstore. It's a variant of Gresham's Law: ever more inflated claims, on behalf of this or that putative cradle of civilization, are driving out anything resembling normal debate. Which is why the odd mean-spirited essay warms my heart; it deflates the debate a little. Of course, a book about how the Scots (or Irish or Italians) had screwed up civilization could never actually find a mainstream publisher in the US - that sort of vitriol is reserved for liberals.

2003-04-22T18:50:00.000-04:00

Hero of the pop-charts

Jaysus. We're No. 2 on Technorati's Interesting Newcomers list.

Update: or were at least, for sixteen hours or so. Sic transit gloria mundi.

2003-04-22T18:04:00.000-04:00

A likely lad. That had a sound fly-fisher's wrist

I used to subscribe to the London Review of Books for the spleen and invective: rude opinions, vigorously expressed, especially on the Letters page. I'll never forget, for example, somebody's description of Terry Eagleton as a writer of "Ladybird primers in critical theory." I'm tempted to renew my subscription after reading this rather splendid character assassination of Christopher Hitchens, published back in January. It's all the more effective for its politeness and restraint; apparently meandering a little as it gathers a critical mass of similes and metaphors, which are then aimed like a killer punch to Hitchen's solar plexus in the final paragraph. And the punch is right on target. Of course, Hitchens is no mean hand himself at the killer book review. His late 1990's piece for the LRB on the Cruiser's "On the Eve of the Millenium," collected in Unacknowledged Legislations is a masterful hatchet-job in its own right. It's a pity what's happened to him since. Speaking of which, bonus marks to anyone who gets the rather obscure reference in the title of this post, without resort to Google.

Update: From The Onion's "It Never Rains But It Pours Dept," more thoughts on Mr. Hitchens' intellectual trajectory. And check out their utterly wonderful piece on Fox and the Iraqi transition while you're at it.

2003-04-22T06:17:00.000-04:00

Austrians count the cost of data retention

Good news via Cedric Laurant of EPIC.

The Austrian Federal Constitutional Court ruled on February 27, 2003 that the Austrian statute which compels telecommunication service providers to implement wiretapping measures at their own expense is unconstitutional. From now on, the Austrian government will have to bear wiretapping implementation expenses
unless it can show that fobbing off expenses on the private sector can be justified for exceptional reasons.

See EPIC's outline and comments.

This is a positive development. It is notable that a number of communication service providers (CSPs) took this constitutional case, despite the Austrian government's assertion last autumn that industry was co-operating with plans to impose data retention. Perhaps the deal is not yet fully sewn up. Further, while the Court found that it was lawful to compel communications service providers to develop surveillance systems, it said that the CSPs should not have to meet these obligations at their own expense. Having to fund both the capital and running expenses of a massive data retention obligation may slow law enforcement's gallop to a canter. Law enforcement hasn't been been reluctant to ride rough shod over human rights in its quest for data retention; money may be a rather more effective deterrent.

2003-04-22T05:40:00.000-04:00

Poacher turned poacher
The new chief privacy officer at the US Dept. of Homeland Security is Nuala O'Connor Kelly, who's just left DoubleClick, a company that's well-known for its "respect" for individual privacy. I'm reserving judgement for the moment, but I have my doubts. Let's face it, DoubleClick's great idea in life was to link up and commercially exploit disparate databases of personal information to provide a picture of individuals' lives far richer than the sum of the parts. Finessing public concern and activists' outcry at this sort of thing is certainly a skill the DHS in in sore need of (and also makes me nostalgic for the days when DoubleClick and its ilk seemed the most egregious privacy invaders.)

Fair is fair though. O'Connor Kelly's time at DoubleClick does date from their efforts to (be seen to) clean up their privacy act. And she is originally from Belfast. Belfast women are known for dressing nicely, speaking softly, smiling plenty, and ruling with a rod of iron. Good luck to her.

2003-04-21T23:54:00.000-04:00

For this is hell, nor are we out of it

See Invisible Adjunct on grading hell. Invisible Adjunct is a great blog by the way, smart, witty, and melancholic in turns. Coincidentally, I've just finished reading a novel, James Hynes' The Lecturer's Tale, which portrays adjunct teaching as a lesser-known corner of Dante's hell, but somehow manages to make it funny. Hynes' hero is a much put-upon adjunct lecturer, about to lose his job, whose finger is severed in an accident; when it's surgically reattached, he finds that it now has the power to compel others to do his will. Bits of David Lodge (literary theory superstars under fairly transparent pseudonyms), but also reminiscent in places of Fritz Leiber's academic horror story, "Conjure Wife." Michael Dirda of the Post describes it as the most devastating portrait of contemporary academic life that he's ever read. I'm not sure it's that good; Randall Jarrell's "Pictures from an Institution" is much more subtle (though maybe not as contemporary), but it certainly should give you a pretty good idea of what it is that Invisible Adjunct gets upset about.

2003-04-21T22:17:00.000-04:00

The castle of crossed destinies

And it begins. John Holbo, a recent addition to our scholastic list, emails to inform me that his blogroll next-door-neighbor, Michael Green, is an old grad school buddy who he's fallen out of touch with. This chance juxtaposition has inspired Professor Holbo to email Professor Green, so as to re-establish contact. I confidently predict that this is only the first in a series of intriguing human relationships to be facilitated by Farrellblogger's ever-evolving index of scholar-bloggers. Star-crossed lovers reunited, clandestine assignments consumnated, sinister conspiracies abetted, age-old emnities rekindled; the possibilities are endless.

2003-04-21T22:05:00.000-04:00

Evolution's Darling

N.Z. Bear's Blogging Ecosystem has switched to a percentage based ranking system, which, inter alia means that Farrellblogger has ascended from Insignificant Microbe to Slithery Reptile in the course of an afternoon. Don't laugh: it took the dinosaurs a couple of billion years to pull the same trick. My comments on how ridiculous this all is still apply; but I have to admit that there is a certain je ne sais quoi to our newfound position in the pecking order, however silly or arbitrary that order may be.

2003-04-21T16:35:00.000-04:00

Spies r us

I'm half way through The Company, a novel of the CIA by Robert Littell, and I'm starting to flag a little. He's been called the US answer to John le Carre, but his characters are too wooden (except for Torriti) and their moral dilemmas too pat to make me really care or think about them too much. I also know who the mole is, so there's no surprise waiting at the end for me.

To keep up my interest, I've started reading it in tandem with Hobsbawm's Age of Extremes; the short 20th century. (Either that, or it's Marxist Historian Week chez moi.) Predictably enough, Hobsbawm and Littell differ in two fundamental ways.

Littell's novel portrays portrays the Cold War as a fight to the death, and the CIA's struggle with the KGB (and their respective client states/agencies) as having decided historic outcomes. I don't know this period well enough to judge the first assumption, but I don't really buy the second. For example, Littell ignores how America's reaction to the uprising in East Germany must have made the Kremlin pretty confident that the US would not intervene militarily to support the Hungarian revolution that took place three years later, in 1956. In Littell's account, Khruschev decides to send in the tanks at the last minute when his spy master bursts into a meeting and relates Eisenhower's own words. Fair enough, the man's writing a novel and it's a great little set piece. But you didn't need to be a spy master to figure that the US would calculate that 'rolling back communism' in Hungary wasn't worth World War III.

Hobsbawm has a fairly convincing (though heavily anti-US) argument that the Cold War was just a phoney war, and intelligence agencies' manouevrings merely shadow play. He does allow that it's had a positive spin-off: the genre of espionage and assassination literature typified by le Carre and Ian Fleming which allowed Britain to wistfully, if fictionally, re-assert its dominance in world events. Except in some of the 3rd world client states, Hobsbawm says, the intelligence agencies' operations were "trivial in terms of real power politics", however flashy. When it comes down to it, the various manouevrings between agencies in Central and Eastern Europe really only counted if the nuclear threat was credible. But as any really significant threat to either party would bring about mutually assured destruction, nothing the CIA did was ever going to have a real effect behind the Iron Curtain. Except, of course, for the people left high and dry when revolutions were fomented by the agency and cursorily abandoned.

All of which is having the opposite effect to the one I'd hoped for: it's making me even more impatient with this novel. Sigh. Only 500 pages to go.

2003-04-21T16:17:00.000-04:00

Let God Sort Them Out?

I said I was going to shut up for a couple of days, I know, but I have to point to this post by Chris Bertram, about a nasty little piece by Martin Sieff at UPI. Sieff argues that the kind of collusion between state and paramilitaries that was uncovered by the Stevens' Enquiry is justifiable. His argument is a simple one, if you strip away the bullshit sophistries about bleak realities etc: he thinks that the torture and murder of innocents is justifiable, as long as it protects society. Chris, quite rightly, is revolted. This kind of realism comes cheap to Sieff and his ilk; they're rather unlikely to be at the receiving end of the abuses that they so blithely prescribe. It's others who pay the cost. Sieff's logic is identical to that of Lord Denning's famous dictum on the Birmingham Six (see Kieran Healy for further details): better that innocents should suffer than that the System change its ways. What this means, in the end, that the weakest members of a given society are at risk of death or grievous injury at the hands of the state apparatus that purports to protect them. Expect more of this sort of squalid pseudo-argument as the "war on terrorism" starts to heat up again.

2003-04-21T15:39:00.000-04:00

Relative values
I only got around to reading this week's Economist this morning. Starting backwards from the non-exec jobs pages (natch), I read a review of Why do men barbecue? by Richard Shweder which irritated me. The book is a collection of papers about how people respond to differences in other cultures. Shweder, the Economist says, regards female genital mutilation as a key test of whether people can really accept cultural differences. I can't comment on Shweder - haven't read his book and don't really plan to (far too dear). What struck me was the Economist's assertion about encouraging developing countries to acknowledge that women have the same human rights as men:

"So people in the West, like 19th century missionaries, are tempted to impose their cultural assumptions on other countries, convinced that West is best."

Harumph. Well, so far so predictable. I suppose I shouldn't be envious of people whose thinking is so advanced as to have gone straight from conservative to reactionary, and skipped right over the whole identity politics thing.

Moving backwards through the magazine (and why do they insist on calling it a 'paper'? It's glossy, with colour pictures, a centre binding and it's about A4 size. In my book, that's a magazine, just like Time and Newsweek. ;-) ), I came across a piece about India, India's Missing Girls. This article drew attention to the widespread aborting of female foetuses made possible by ultrasound technology. Ticking off the predictable problems this phenomenon causes; shortage of potential wives, higher crime by frustrated young men, and more domestic violence, the article noted that criminalising female foeticide had had no effect and that "it may already be too late to avoid serious social trauma."

The first article was irritating but predictable, the second infuriating when read in tandem. It seems, to the Economist at least, that its perfectly fine to deny human rights to women as long as the costs are born by the women and not by society as a whole. After all, these are just cultural differences and we should all be sophisticated and grown up enough to accept that. If it's your custom, you can mutilate women and deny them all sorts of basic human rights as long as you don't create negative externalities that rebound back on everyone else, i.e. men, or even, heaven forfend, the economy. Clearly, all those lily-livered liberals and sheltered Western feminists have a lot to learn from the urbane and worldly wisdom that the Economist so frequently dispenses.

Another paper might defend itself by saying that different writers express different opinions. How can you expect consistency between book reviews and reporting on Asia? But the Economist is different. A great deal of its authority rests on the consistency of the author's voice. Each article reads with the same authority / smug assuredness, giving the impression of a single, omniscient eye, surveying all and issuing cool, dispassionate judgements. It's impressive but rather hard to maintain.

Or perhaps there's more to this than a simple problem of editorial consistency. Others are more qualified in the relevant isms than I, but it seems to me that these articles raise a problem with the whole laissez-faire approach to life, or at least that propounded by the Economist. The classic liberal tenet of 'do what you like as long as it doesn't harm others' seems to have fallen by the wayside, and been replaced by an implicitly utilitarian calculation of the public consequences of harm done to individuals. The problem is not treating women as second class citizens, it's what happens when this brings negative consequences to society as a whole. Once the principle of equal rights for all has been abandoned as naive, the debate on intervention or non-intervention simply turns on expediency.

Embracing pragmatism is one thing, but what is the formula for analysing costs? Do they just not count if they are born by people in no position to spread the pain around? For example, if female genital mutilation was shown to significantly lower fertility, would it count then? Would that be a "serious social trauma"?

Which brings me back to editorial consistency. If, as the last 18 months have shown, the editorial line is determined not by principle but by expediency, these little quirks and are bound to pop up, and will keep on popping up. At least it keeps the readers on their toes.

p.s. apols, the links are to premium content pages. Shortage of girls article on p. 48 of Euro print edition, review on page 69.

2003-04-21T06:32:00.000-04:00

on doit ressusciter

It was a week or two before my finals in history that Henry told me to read 'theses on the philosophy of history'.

In the Irish university system, you do a single set of exams at the end of your three or four years, and that's the mark you get for your degree. The History department then had a tradition that was old-fashioned enough to be very enlightened. Although you only did three courses in final year, you sat four exams. The fourth was a general exam with 20 questions that could be on any topic covered in any course over the entire degree. It had obscure questions about obscure figures and then ones like 'discuss the political uses of the colour red in the French Revolution'. There was no point studying for it, and no sure topics. It was a chance to perform.

Anyway, by the time I was doing it, the student population was less Zuleika Dobson than mincemeat fed through the Murder Machine. So, we were gathered into an auditorium to have the exam explained and our nerves soothed. The head of the department went through a sample paper, suggested ways students might let go of their text books and use their imaginations, and then came to a few tricky sounding questions at the end. These mentioned a word most of us hadn't come across before; 'historiography'. A hand went up. Response (paraphrasing); 'If you haven't come across this conceptalready, don't worry about it. There are 17 more questions you can choose from.'

You know that feeling you get when you think someone is trying to pull a fast one but you're onto it, if you could only figure out what exactly it is? Back at Oakley Road, I asked Henry about this historiography thing and he immediately prescribed a course of reading which included 'theses' and the annalistes. Feeling like I was studying history for the first time, I charged through the lot. It was truly a revelation. I remember crying when Benjamin, explained that history is "a process of empathy whose origin is the indolence of the heart, acedia, which despairs of grasping and holding the genuine historical image as it flares up briefly". He quoted Flaubert;

'Peu de gens devineront combien il a fallu etre triste pour ressusciter Carthage.'

or; 'Few will be able to guess how sad one had to be in order to resuscitate Carthage.'

I'm sorry to say that my understanding of Benjamin has turned out to be equally as fleeting. I glimpsed but couldn't grasp, though I've always kept him close. Reading him again now, I could almost remember what it was to be 21 and reading history for the first time. But I'm afraid the storm of progress has long since blown me away.

And the exam? I can't remember which question I answered in the end. But it did have 'historiography' in it. I took the entire three hours allotted to scribble a 20 page diatribe about the importance of the ideas behind history, the failure of a department that had never taught them, and that my three years of course work had (with one very notable exception) been a waste of time. They gave me a first for the essay and sent me on my way.

2003-04-21T00:35:00.000-04:00

hiatus

Am swamped with grading student papers - expect a loud silence from my half of this blog over the next couple of days.

2003-04-20T02:14:00.000-04:00

On doit oublier

Jacob Levy has a post that talks about Renan's famous dictum that "in order to be French, it is necessary to forget St. Bartolemy" (or words to that effect). The best account that I've read of this gnomic phrase is in the second edition of Benedict Anderson's Imagined Communities (which is where I suspect most political scientists and theorists first encounter Renan). Anderson points out that Renan's argument is extraordinary precisely because it assumes that nobody in France -has- forgotten the St. Bartholemew's day massacre; Renan tosses the reference into his argument, with no further explanation, because no further explanation is needed. But, as Anderson goes on to argue, even if everybody remembers what the St. Bartholemew's massacre is, they have "forgotten" it in a more profound sense: it is no longer a source of bitter political division, but rather has become part of the French national myth. I haven't read Anderson in years, but also owe my first encounter with Walter Benjamin's wonderful "Theses on the Philosophy of History," to him, as well as my decision to do postgraduate work in political science. I'm not sure whether to thank him or blame him for the latter; Imagined Communities gave me a rather inaccurate impression of what it is that political scientists do (lots of reading interesting novels and historical texts, not so much statistics; in other words the precise opposite of what the discipline actually entails).

Update: Hubert Butler, whom I suspect nobody in the blogosphere except for me, Mrs. Tilton, and most likely Kieran Healy, has heard of, has a very fine essay on Renan, collected, as far as I recall, in his volume, "The Children of Drancy."

2003-04-20T01:28:00.000-04:00

anonymity and community

After a couple of posts by Amitai Etzioni which left me feeling pretty disgruntled, I'm glad to see a post which seems to hold out the promise of an interesting debate, even if I don't agree with it. Etzioni argues that anonymity is anti-communitarian, and that this is an especial problem of the online world. While he acknowledges some virtues to anonymity, he feels that they are clearly outweighed by the costs: "poorer conversations, meager relationships and impoverished communities." His point seems unassailable: it chimes with the experience of anyone who's had to wade through unmoderated discussions in search of the odd interesting post submerged beneath the garbage. All the same, I'm not entirely convinced. Timothy Burke, for example, talks about the disadvantages of closed online communities where anonymity is impossible; after a while they become stifling. In Burke's words, "eventually everyone knows what everyone else thinks, and the more you know about how some people think, the less you want to talk to them." Moreover, Burke finds that rules of good conduct in closed communities don't really get rid of trolls; they merely oblige them to express their annoying opinions in a more polite (but distinctly passive-aggressive) fashion.

Is there an alternative to the closed community, in which everyone knows everyone, and anonymity is unobtainable? Richard Sennett's extraordinary (if meandering and labyrinthine) book, "The Fall of Public Man" holds out a possible ideal. Sennett has a specifically non-communitarian vision of the left, which celebrates the city as a social space where people can interact meaningfully, without being constrained either by thick community bonds, or by the (to Sennett) stifling constraints of family and personal life. His model of sociability is the eighteenth century coffee house in London or Paris, where individuals (typically men, admittedly) could come together anonymously, and discuss the issues of the day, without much regard as to who they were in private life. According to Sennett, this allowed people to escape their private lives, to try out new identities, new ideas, without being called to account for them (Etzioni, for his part, allows that anonymity permits this kind of play). It thus provided for a richness of social interaction that would otherwise have been impossible. There's something that I find deeply attractive about this idea of sociability - it's all about creating a space for the celebration of diversity and fluidity, an idea that Iris Marion Young (who's influenced by Sennett) develops further in "Justice and the Politics of Difference."

Is there an equivalent to this ideal in the online world? I reckon so, and it's blogging. Not to say that there aren't faults (pace Burke, the sometime incestuous nature of the blogworld; good bloggers who don't receive notice through no fault of their own), but blogging seems to me to be rather closer to Sennett's ideal than to Etzioni's. It's quite possible for a blogger to remain anonymous, and to get linked to, as long as she produces opinions and arguments that interest people. Atrios is the obvious example (although at this stage it's not hard to guess who he is); there are many, many others. The reason why anonymity doesn't erode dialogue in this instance is that blogging is an open-ended universe. In contrast to an unmoderated listserv (where I have to wade through every rubbishy post that some troll has seen fit to inflict), I can read Atrios, or not read Atrios, as I like; I can link to him if I like what he 's saying, while I can remove my links if he offends me. Atrios' -real- identity is of no concern to me, as long as I'm interested in what he has to say. The key point is that I don't have to endure him. I can create my own "community" from the individuals whom I find interesting; I don't need to know who people "really" are, so as to hold them accountable for their behavior, as I can simply up and leave if I don't like what they're saying.

The consequence is a sphere of discussion which does often clump into communities, but relatively open ended ones. They're communities of interest - sometimes long term (where people share a deeper set of concerns that they want to discuss), sometimes short term (where people briefly converge on an issue - such as for example, the recent discussion starting from Jacob Levy's post on political theory and political philosophy). Indeed, perhaps they're better described as conversations than as communities, at least if you're using the term "community," as communitarians use it. You can enter them, and exit them at will. But Etzioni, I'm sure, still has a different take on these issues ...

Update: Matthew Yglesias is a little perturbed by Etzioni's post, while the mysterious Insurgent unsurprisingly thinks that anonymity is quite a good thing, thank you very much. By strange coincidence, Liz Lawley posts today on blogging and authenticity, talking about how her husband used to create multiple personalities in virtual communities.

Update 2: Had an interesting email discussion with Matthew, who suggested (correctly) that I didn't distinguish clearly enough between pseudonymity and anonymity in my original post. I reckon that the two are functionally equivalent for the purpose of this argument: lightly edited highlights of my email below.

I think that it's not just simple pseudonymity with a single identity. We can chop and change between different identities if we want to, something which Etzioni would find deeply worrying. His basic premise is that the possibility of anonymity means that we can't hold people accountable for their actions. This is just as true in a context where (a) pseudonymity is possible, and (b) where you can jump from one pseudonomynous identity to another at will. Both are clearly true of blogging in principle: there's nothing to stop me from setting up five or six blogger accounts, and jumping between them. According to Etzioni, this should radically undermine the possibility of community, of rich relationships, and of good conversation. It clearly does the former to some extent - I don't think blogging (or "clumps" of bloggers) has the features of community that Etzioni identifies. It probably isn't all that compatible with deep relationships either; there are a bunch of bloggers who I feel I would like a lot if I knew them personally, but I don't "know" them except insofar as they represent themselves online. But it is compatible - and eminently conducive towards - good conversations, with an open ended quality that just ain't possible in thick, tightly knit communities. And it's this I'm trying to get at. Etzioni claims that community is the corner stone of good dialogue; I disagree. And I'm trying to articulate why blogging supports my arguments rather than Etzioni's.

Update 3: Julian Sanchez defends anonymity from a libertarian viewpoint

2003-04-19T11:27:00.000-04:00

blogroll additions

Three new additions to the scholar blogger roll. Cosma Shalizi, doing a post-doc at U of Michigan (Ann Arbor), who works on agent based modelling, complexity theory and the like. This is stuff which I only understand the rudiments of, after playing around with Rudy Rucker's toy cellular automata software, but which gets fantastically complex very quickly. A very nice blog, with further links to two other academics. Juan Cole is in the University of Michigan history department, working on Middle East issues: has very good stuff on Middle East politics and Islam, and knows what he's talking about. John Holbo teaches philosophy at the National University of Singapore, and comments on pretty well everything.

Update: and a whole clatter of analytic philosophers, courtesy of Brian Weatherson.

Update 2: poorly phrased tautology of the week: I just noticed that I suggested above that complexity theory gets complex very quickly.

2003-04-18T19:30:00.000-04:00

Blogroll changes

My attempts to keep track of scholar bloggers (term (c) Jacob Levy, 2002) are leading to an increasingly cumbersome blogroll, so I've done some reorganizing. Scholar bloggers are now grouped according to academic discipline, to make it easier for readers to pick and choose the ones they might be interested in. Of course, I've made some arbitrary choices; if anyone thinks that they've been misclassified, and cares enough to email me, I'll make the necessary changes. My criteria for scholar bloggers are threefold - either (a) holding a position at a third level institution, or (b) pursuing a Ph.D. or equivalent degree at same, and (c) not propagating an ideological position that I find downright revolting (racist, fascist, homophobic, advocating forcible deportation of Jews/Arabs/whoever). Feel free to email me with nominations for other scholar-bloggers that I should be listing. As this means that I will sometimes list blogs that I don't necessarily read all that often, I've picked out a few blogs that I think are of particular interest, and added two stars after them. Maria will likely be making a couple of additions of her own in due course, and I'll be chopping and changing meself, as I figure out which ones I -really- read.

2003-04-18T14:33:00.000-04:00

Limbaugh of the lost

"Little Dick Promises Fascism If Reelected." Via Politicaltheory.info this extraordinary article by Rush Limbaugh, claiming that Gephardt's (rather mild) proposals for healthcare reform smack of Fascism. Even seasoned Limbaugh watchers will be entertained by his claim to have "the intellectual chops" to discuss Fascist political ideology; his "research" on the subject apparently consists of having looked the term up in the Merriam-Webster dictionary. Or, what's more likely, having dispatched a flunkey to look it up. What I find interesting is how Limbaugh repeatedly describes people whom he doesn't like in similar terms. Most notorious is his coinage, "feminazi," used to describe modern day feminists, who in Rush's little world are "obsessed" with perpetrating the "modern Holocaust" of abortion. I once co-wrote a paper (semi-spoof, semi-serious) with my friend Barb, "From Sex-Vixens to Senators - Representation in Nazi Porn and the Discourse of the American Right Wing," discussing this tendency at greater length. The paper was rejected by a UC Berkeley cultural studies conference for being "too weird" - perhaps the proudest moment in my academic career to date. We were eventually accepted for another conference at York University, after heated debate among the conference organizers as to whether we were CIA plants or not (Georgetown University, where we were based, has a reputation for strong ties with aforementioned organization). The organizers eventually decided that no CIA stooge would have the unmitigated chutzpah to propose a topic as outre as our one, so we were in. It's a little depressing to see that Limbaugh is still at the same game, seven years later.

Update: for a complementary take on fascism today, see this UPI bozo, who resurrects the trope that European anti-war protesters are surreptitiously practicing their goose-steps. Go figure.

2003-04-18T08:59:00.000-04:00

Boys will be boys.

I just took the Guardian's 'essential difference' test. The premise of the test (one on empathy and the other on systems) is that women's brains are hard-wired for empathy and men's for understanding and building systems.

The girly one (i.e. the empathy test) is full of questions like 'does it bother you when people do nasty things to furry little animals?', 'do you cry watching the news?', and 'can you always tell when someone is feeling excluded from a group?'. The manly test wants to know if, 'when buying a sound system/computer/camera do you read all the geek mags so you know about all the features?', 'do you like league tables?', 'can you read maps?', 'do you avoid housework?'. It's a few years since I took a course in qualitative research methods, but aren't these questions just a little ittle bit prescriptive? How circular can this logic get? Did they think; OK, so men are geeks who avoid housework, and women are great, big, blurry crying things who talk lots on the phone. Let's devise a test that decides if you're a man or woman according to how you answer questions based on those assumptions (so far so good). BUT, then let's call that test an independent indicator of gender differences...

Perhaps this test would ring true in a world where all the women are Bridget Jones and all the men are Nick Hornby characters. It's certainly not far above the level of the quizzes I take in Cosmo and Glamour all the time. (I wish Marie Claire would do more of them.) But at least women's mags don't pretend to be vaguely useful research.

Maybe I'm just miffed because I got a scary 46 on each test. 46 on the empathy scale means I'm probably a girl - fair enough. 46 on the systems test means I'm not just a man, but could be a man with autism or Asperger's. Could the real answer be that I am simply a nerd?

These quasi-scientific (i.e. completely bogus) tests that career counsellors, personnel departments and their ilk make people take drive me crazy. These people seem to exist in a world where people are either empathic or analytical, people people or systems people, schmoozers or nerds. Wake up! Most people don't fit neatly into these silly little boxes, no matter how prescriptive the survey design is. And, by the way, the questions are so obviously skewed one way or the other that most test-takers can recognise them and rig their own results anyway if they want.

It's bad enough that these things exist at all, but going and pegging them to some half-baked, pre-cooked gender determinism....ngngngnghhhhh!!!

Update: Teresa Neilsen Hayden has taken the same test, and Kieran Healy and Matthew Yglesias also have thoughts.

Update2: And Eszter Hargittai has lots to say about the the importance of socialization in explaining why women sometimes think they're worse at math than men.

Update 3: Chris Bertram, meanwhile, dug a little deeper and wondered, if men and women did turn out to be hard-wired differently, whether that would necessarily lead to reactionary outcomes. Kieran Healy counter-argued that methodologically flawed surveys try to shoe-horn common sense into scientific theories, and correlations are still weaker than the average magazine editor would like. At least that's what I think they said. I'm high-tailing it back to Venus.

2003-04-18T06:02:00.000-04:00

Bah bloody humbug indeed

As an ex-student debater, I can tell you the Chafetz piece would probably have been rewarded with applause but low scores if it was a competitive speech!

But Chafetz' justifying counter-claim that there's been no conflagration in the Middle East because of the war reminded me of something I read in the Robert Littrell thriller about the CIA. Litrell quotes a revolutionary (Chinese I think) who was asked in the early 20th century what the effects of the French Revolution were. The revolutionary replies 'it's too soon to say'. This true story is told in the fictional 1950's context of a senior CIA person regaling the New York Times with the CIA's successes installing pro-US leaders in Guatemala and Iran. Litrell's nod to the present day reader, who knows all too well how these success stories panned out, is as wry as it is regretful.

I sometimes wonder how many of today's war hounds' already selective historical memories stretch back any further than WWII. Of course the cliche goes that Americans are too dismissive of history and the Europeans entirely captured by it. But it seems to me that what's happening in the Middle East today is being shaped by deeper historical forces than are given much notice, at least in the popular media. This last 100 years is marked by wars to end all wars, treaties to end all wars, revolutions that set the clock back to zero, new deals, and new world orders (the latest being in today's Economist). If all these new beginnings share anything, it's that they set the scene for the next war, conflict, or conflagration. There's nothing really new under the sun.

2003-04-18T01:39:00.000-04:00

Bah, humbug

It may just be crankiness on my part, but this article by Josh Chafetz gets on my nerves. It's got all the silliness and tendentiousness of a mediocre-to-middling student debater, who isn't quite sure of his case, and hopes that that self-righteousness and bluster will paper over the weak spots. Or perhaps it's less an exercise in Oxford Union roundhousing than a maiden political speech: its mix of bombast, preening and empty rhetoric is almost Gladstonian in scope. See the Grand Old Man's notorious exercise in humbug, The Bulgarian Horrors and the Question of the East for comparison; it too expresses moral fervor on behalf of peoples very far away, who are primarily interesting insofar as they illustrate an abstract point. There's an argument to be made that the US was right in going to war; Chavetz isn't interested in making it. This is an exercise in grandstanding pure and simple. It drips with smugness.

Update: I posted at 1.30 am last night after 90 minutes spent in voicemail hell trying to book a plane ticket, so my language may have been a wee bit intemperate. Still, the basic point stands: the ratio of self-satisfaction to argument in the piece is overwhelmingly lopsided. Chafetz responds to criticism this morning (I suspect he's primarily addressing an equally grumpy post by Julian Sanchez), but there are problems in his reply too. The Oxbloggers are nice guys and all, but if they want their democracy project to be taken seriously, they need to moderate their triumphalism and be a lot more self-critical.

2003-04-16T23:23:00.000-04:00

The Land that Time Forgot

Brett Marston posts on the Kelly Family; a very horrible phenomenon that is thankfully confined (mostly) to Germany and immediate environs. Think Osmonds. Think Irish-American Osmonds. Think Irish-American Osmonds with twee little bits nicked from Riverdance and every ghastly diddley-iddely faux-Celtic showband that ever plagued the Val Doonican show. The Kelly Family did a big show in Ireland a few years back; it was a miserable flop. We have enough Cultic Tweelight of our own, and no need for the ersatz Continental variety, thank you very much. The Germans lap it up of course, but they have very odd taste in popular music. Bands that the outside world has forgotten twenty years ago (New Model Army, anyone?) subsist in a sort of twilight netherworld of tours through German provincial cities, where they sell out concert halls to legions of fans with odd hair cuts. What makes this grim devotion to the outer fringes of schmaltzpop, goth and schlager songs even more bizarre, is that it coexists with a thriving, inventive electronic music scene, which is as up to date as anywhere else that you'd care to name. Check out the scenes in Cologne and Berlin in particular (I recommend Liquid Sky in Cologne to visitors).

Update: Brett responds; while Mrs. Tilton has further thoughts on Oirishry abroad.

2003-04-16T21:33:00.000-04:00

Fahrenheit 451

Teresa Neilsen Hayden says it all better than I ever could ...

2003-04-16T17:42:00.001-04:00

E-commerce and constructivism

My article on e-commerce, and the EU-US Safe Harbor arrangement has just come out in International Organization. Briefly, it argues that standard IR theories of bargaining can't explain how Safe Harbor came into being, and that you have to turn to constructivist theory in order to explain observed outcomes. I happily anticipate being attacked by rat choice people (for being constructivist) and by mainstream constructivists (for being too sympathetic to the rationalists). But if you're interested, see for yourself, either on the main IO site (if you have an institutional subscription), or on my home server (my contract with Cambridge U P allows me to put a version up there: most enlightened of them).

2003-04-16T12:25:00.000-04:00

Perfidious France

I'm disappointed at the tone of recent comments by Amitai Etzioni in his recent debate with Mark Kleiman over France. It all started to go wrong when Etzioni quoted Charles Krauthammer in a post, to the effect that the French had famously accommodated the Germans in 1940. Kleiman gently pointed out that this was, to put it mildly, historically inaccurate; the French had declared war against Nazi Germany at a point when the US had been quite happy to sit on its collective hands. Etzioni's reply: maybe the French did resist "for five minutes or so," but the Vichy regime had a lot of collaborators, the Resistance was largely fictional, and Charles De Gaulle was egotistical, and hard for the Allies to work with. Kleiman responds, politely but firmly, that the French took 300,000 casualties (120,000 killed) fighting against the Germans, and that the Resistance wasn't fictional, even if it was smaller in number than it was later made out to be. People in the Resistance faced the risk of torture and death, and it's "wrong to deny those who risked much worse than death the honor that is their due." Which is precisely what Etzioni goes on to do in his final post, where he doesn't try to answer Kleiman's point, instead harking to current French hypocrisy and shenanigans in the Ivory Coast. He concludes 'A good summary of what the French did not do in WWII is found in the following quote, from the book Shibumi by Trevanian, courtesy of Clayton Cramer: "Every French innkeeper who overcharged a German officer, and every French woman who gave the clap to a German soldier, fancies themselves as having been part of the Resistance."'

Bluntly, I expected a whole lot more of Etzioni. Like Kleiman, I'm not too upset when the Steven Den Bestes and Clayton Cramers of this world spout ahistorical nonsense and prejudice; I am worried when people like Etzioni, who is clearly a very thoughtful guy in other respects, start to do it. I'm even more worried when they're called on their claims, and they don't respond with serious arguments, instead resorting to further slurs, exaggerations and cheap shots. Etzioni's final resort to the authority of a mediocre* writer of James Bond rip-offs is not only offensive; it's a reiteration of a point that Kleiman has already rebutted. It's the kind of argument that you'd expect from one of the beerhounds propping up the counter in Moe's Tavern, not from someone who is undoubtedly one of the most serious social theorists of his generation. As Kleiman says, it's also symptomatic of something pretty nasty in what passes for political discourse in America today. Why do people have to attribute French behavior to something mean, sneaky and accommodationist in the French (or European) national character, rather than to the standard push and shove of relations among nations? There's something very weird and unpleasant going on.

* OK - maybe Trevanian's "The Eiger Sanction" wasn't too bad. But that was thirty years ago.

2003-04-15T12:06:00.000-04:00

European Parliament and the Third Pillar - Round II
"National security concerns, albeit legitimate, must not compromise the principles on which the (European) Union is founded, including democracy, equality and human rights."

So says the European Parliament which passed a resolution on 'progress in implementing an area of freedom, security and justice'. It was actually passed on 27 March but a friend forwarded me the link today. The EP has called for an end to the 3rd Pillar and the introduction of qualified majority voting in the JHA Council. I'll be checking out the precise status of this opinion, but as far as I know, it is part of the EP's formal reporting requirement on 3rd Pillar issues and doesn't refer to any new proposals or developments. Nonetheless, it sets out the EP's stall vis a vis the Convention discussions, and is generally good to see.

Regular readers of this blog will know that I have two great interests in life these days; traffic data retention and the undemocratic nature of the European Third Pillar. This EP opinion is a round-up of similar frustrations;
- 9/11 fall-out has caused a huge increase in activity on justice and home affairs at the EU level,
- the EP's role in decision-making on justice and home affairs is limited to rubber-stamping and provides no real democratic accountability,
- member states are using the JHA Council to advance domestic agendas and do policy-laundering,

On 3rd Pillar decision-making in general, Parliament said; "The lack of public accessibility, together with a lack of democratic control over Council,is leading to an unacceptable restriction of the principle of democracy. This calls into question the legal legitimacy of Council measures with a bearing on constitutional law."
An interesting point. Not being a lawyer myself, constitutional or otherwise, I'd love to hear more about this question and whether constitutional challenges might be brought to bear on the applicability of decisions made by the JHA Council.

Parliament also says changes in criminal justice policy are not being subjected to the relevant European legal instruments protecting human rights:
- proper safeguards of individual rights (under Article 13 of the EC Treaty) must temper criminal justice co-operation, especially on the European Arrest Warrant,
- a framework decision on procedural safeguards is needed for suspects and defendants in criminal proceedings.
- a 'EuroRights' body of independent defence practitioners in criminal law should be set up.
- there should be full democratic scrutiny of Europol, so it is fully accountable to the EP in partnership with national parliaments and subject to judicial control of the European Court of Justice.

The EP also warned the Council and Member States of the danger of "an overwhelming obsession with illegal entrants."

And, my favourite, the EP stated categorically that:
"it is unjustified to grant sweeping data retention powers through a blanket EU instrument. The collection and transfer of personal data in all measures relating to judicial and police cooperation must be carried out according to sound data protection rules." This is a shot across the bows at the Commission's Proposal That Has No Name - a harmonising measure on data retention which is much rumoured but has yet to see the light of day. They won't even say what kind of legal instrument it is.

Of course, some of the EP's criticism of the JHA Council must be taken with a few chunks of salt. Like all other EU institutions, the EP is manouevring to get a bigger slice of the decision-making pie in the current negotiations on constitutional reform. There are plenty of criticisms that can legitimately be made of the EP's own processes and accountability, but it is still a better bet than the closed Ministers' Club that currently decides on EU policy in police and judicial co-operation.

Now let's hope the EP can follow up this opinion with some useful actions.

quick update I've just been told this EP opinion isn't part of any ongoing work programme and so is a relatively spontaneous expression of the EP's views on the 3rd Pillar.

2003-04-15T11:42:00.000-04:00

Trots in space

Patrick Neilsen Hayden has a recent post suggesting that we're living in a Ken MacLeod novel (Brad de Long picks up on this too). And the empirical evidence seems unassailable; political actors who are driven by a bizarre mixture of ideology and personal ambition, vast wobbly conspiracies that are nearly, but not quite, comprehensible; shadow-wars conducted with futuristic weaponry.

But what does Ken MacLeod think himself??? You can now find out for yourself: check out Ken's very own personal blog (found via BoingBoing). Very interesting, if infrequently updated.

On a personal note, if there are any awards out there for Most Gratuitous Reference to Ken MacLeod in a Purportedly Academic Work, I hereby claim first dibs for this piece. It was written for a volume edited by Russell Hardin, who is quite fond of using high culture references in his books and articles on political theory; I thought that some good genre fiction would counterbalance things a bit.

2003-04-14T16:32:00.000-04:00

What goes around comes around

I'm enjoying Sinn Fein's discomfiture at the refusal of the British and Irish governments to publish their peace plan for Northern Ireland until SF and the IRA come up with the goods. Long term observers of Sinn Fein's hardball approach to negotiation, will be familiar with its practice of demanding "clarification" after "clarification" of government proposals until they get what they want. Clearly, they don't enjoy it nearly so much when the (jack) boot is on the other foot.

2003-04-14T16:26:00.000-04:00

More on political science and Iraq

Like Paul McDonald, Dan Drezner, and Julian Sanchez, I'm interested in the potential contribution of political science to understanding how best to stabilize countries like Iraq. And Charles King at Georgetown has some pertinent observations in an article published in World Politics a couple of years ago. King is an expert on Moldova and the other failed states of Russia's "near abroad," but his findings seem to me to be generalizable to other settings. King is interested in how many of these states have settled down into quasi-stable arrangements in which secessionist movements have gained control over geographic areas within the state, without being able to create an internationally recognized state of their own. It's commonly believed that these situations stem from continued distrust between different ethnic groups within the state. King shows that the situation is much more complicated than that. It is actually in the interests of all the powerful actors to maintain a situation of controlled chaos; ""war economies" allow elites in both the dominant state apparatus, and in the pieces controlled by secessionist movements, to profit enormously from smuggling and corruption. Powerful actors on both sides have an interest in preventing things from becoming too stable. They occupy a role that is analogous to that of the Mafia in Southern Italy, as described by Diego Gambetta; essential middlemen in a setting of institutionalized chaos.

What does this have to do with Iraq? Quite a lot, actually. Iraqi politics have all of the required ingredients for this kind of long term instability - poisonous relations between ethnic groups, a thriving black economy, lack of any clear center of control, corrupt old state elites who look like reassuming an important role in political life. The relationship between the Kurdish part of Iraq and the rest is likely to be unsettled for quite some time; the same may be true of the Marsh Arabs (nb that I'm going on media reports here; I'm not an expert on the internal make-up of Iraq). Addressing them is going to require a much more pro-active, and engaged US policy than was displayed in Afghanistan, where the administration's attitude seemed to be that everywhere outside the immediate environs of Kabul could go hang. It's also going to require something a bit more sophisticated than the "boys will be boys" tone of mild reproof that the US and British have taken whenever journalists are impertinent enough to bring up the problem of looting.

On which last, I also have strong personal feelings. I visited the museum in Baghdad several times (I spent a month in Baghdad when I was fourteen), and have pretty clear memories of many of the artifacts that have been stolen. It was one of the great world museums; not quite up there with the British Museum or the Smithsonian; but quite extraordinary in its own way. It hurts to think that most of this material is likely to be lost, melted down, or sold on the black market to private collectors.

2003-04-14T15:33:00.000-04:00

around the blogosphere

Quick round up of things seen

First, a new blog on EU-related issues. Of great interest to those, such as meself, who take a direct interest in EU politics. Should also be of interest to those like Glenn Reynolds, who blog frequently on the EU without the slightest idea of what it is or how it works. But probably won't be.

The mysterious Insurgent, who seems pretty good at getting to the parts that other warbloggers don't get to; he(???)'s pretty well versed on the minutiae of Middle East/Eurasian politics.

And speaking of warblogging, Casus Belli still doesn't get near the attention that it deserves; thoughtful analysis of what's going on, rather than the more usual thirty posts a day of unfiltered quasi-garbage.

2003-04-13T17:00:00.000-04:00

The pleasures of exile

I'm spending the weekend in Washington DC (will be here again soon for the whole summer - my wife still lives here) and was delighted to discover that Marvellous Market, just off Dupont Circle, now stocks Kerrygold butter. This is probably something that can't be explained very well to a non-Irish person; basically, North American butter sucks (tho' y'all have the ice cream thing figured out out waaaay better than we do). When I first visited the US, during the summer of 1990, I literally used to dream about Irish butter, now I can spread it to my heart's content. All I need for my happiness to be complete is to find a shop that sells Tayto salt and vinegar crisps and Barry's Tea at reasonable prices. These are of course silly things to get worked up about; but it's a universal experience for expatriates to miss the little things as much (if not more than) the greater ones. Dante, who was exiled from Florence, speaks of how

You shall leave everything you love most dearly:
this is the arrow that the bow of exile
shoots first. You are to know the bitter taste
of others' bread, how salt it is, and know
how hard a path it is for one who goes
descending and ascending others' stairs.

He's talking about two things here. First, as an exiled Florentine, he doesn't like salty bread. Florentines don't use salt when baking (the result, as far as I remember, of an extended period when the Pisans cut off their salt supplies), so that their bread tastes like blotting paper to non-natives (I lived in Florence three years: my advice to outsiders is to order "pane Pugliese" in the local bake shops when possible). Second, spiral staircases in Florence tend to curve around the opposite way from staircases elsewhere. Dante's main point is unassailable; as an exile, you feel longing for the small and unexceptional parts of daily life in your home country, and a quite extraordinary degree of comfort whenever you find them again. Which is why my fridge is now stocked up with Kerrygold.

2003-04-11T19:49:00.000-04:00

Public choice and libertarianism

Julian Sanchez has an interesting post about the relationship between public choice and libertarianism, which he sees as analogous in some ways to the relationship between socialism and the base-superstructure arguments that Marxists used to employ. In other words, public choice theory and Marxism not only provide theories of how the world works, but of why most individuals out there continue to be deluded about the "true" nature of politics. Marxism, in its crudest form, argues that individuals are ignorant because prevalent ideas (superstructure) are determined by the base. Public choice argues that people are ignorant because it is in their self-interest to be ignorant; the costs of gathering information about how politics really works exceed the gains.

However, public choice doesn't limit itself to arguments about rational ignorance; it can sometimes sound as simplistic and unconvincing as the most vulgar and reductionist Marxism. Take for example, Charles Rowley at George Mason University, who has edited a definitive 2 volume collection on public choice. In his introduction to the collection, Rowley describes the Virgina school of public choice, which he himself adheres to, as a "program of scientific endeavor that exposed government failure coupled to a programme of moral philosophy that supported constitutional reform designed to limit government." Rowley harangues against all forms of rational choice theory that don't fit into his ideological straitjacket, and explains the failure of public choice theory to take over political science in terms that all but the most vulgar Marxists would find a little crude. The reason, apparently, why conventional political scientists don't buy into public choice is because they are "scholars who had rendered themselves dependent on the subsidies of big government and whose lucrative careers in many instances were linked to advising ... agents of the compound republic." In other words, political scientists don't oppose public choice because they have any intellectual quarrel with it; they oppose it because they've been bought off. The "state-monopoly-capitalism" theorists of East German Marxism during its heyday couldn't have put it any better. And Rowley isn't some isolated wingnut; he's the co-editor of "Public Choice," the main journal of the field.

This helps explain, I think, why public choice hasn't made many inroads into political science, even while other versions of rational choice have done pretty well. Typically, it's crude, ideological, and not very convincing, except to the already convinced. This isn't to say that it's intellectually worthless; some valuable work has been done by public choice scholars. But the good work is (as far as I can see) mostly done by the mavericks, such as Ken Arrow, whose seminal contributions to social choice theory are notably free of libertarian ad-hoccery (unsurprising, since Arrow is himself a convinced social democrat). The problem, as I see it, is that most public choice scholars start from a set of intellectual priors which mean that they don't like or understand politics as such; indeed, they'd like to reform it out of existence. This is not a strong basis for understanding how politics actually works. Further, there's good reason, I think, to believe that this intellectual endeavour fails on its own intellectual terms; basic results in economic and social choice theory suggest that it's simply impossible. But that's a subject for another day's post ...

Update: Lawrence Solum has more thoughts on this.

2003-04-11T18:31:00.000-04:00

Decayed gentlemen

The Globe and Mail carried a nice interview yesterday with Edward Carey, who apparently has a new book out. I'm in DC for the weekend, so went to Olsson's to find it today without any luck; if it's anything like as good as his last one, it's going to be very good indeed. Observatory Mansions is one of the best novels I've read in the last couple of years - a little Beckett and Kafka, a lot of Bruno Schulz, and an entirely original - and nasty - sense of humour underneath it all. The book is narrated by Francis Orme, last scion of a decayed line of minor aristocrats, living in the dilapidated family pile, which has been turned into apartments for a varied set of freaks, shut-ins and misanthropes. Some lovely set scenes (the wax museum where Francis used to work as a human statue is wonderful); the book flags a little towards the end, as Francis begins to develop a sense of humanity despite himself, but is still very, very funny. Am looking forward to the next installment.

2003-04-11T17:08:00.000-04:00

Small world sociology

Kieran Healy has blogged a few times about the sociology of small world networks, most recently doing a post on how Irish people sniff out each other's family and social connections within 2 pints (at most) of their first meeting. Eszter Hargittai reaches similar conclusions about network theorists working on power-law issues: a vastly disproportionate number of them are (like Eszter herself) of Hungarian origin. Now there's a new blog, Political Aims, which is written by two Ph.D. students in Princeton's sociology department, of which Kieran is a recent graduate, and where Eszter too is doing her doctorate. It's interesting that we have four bloggers from the same Department, given the relative dearth of scholar-bloggers out there; one may reasonably suspect that small world connections of some sort or another are at play.

2003-04-09T16:47:00.000-04:00

The surface area of God considered as a downhill motor race

Matthew Yglesias states that "I don't think we debate God's existence within anything like a formal system." Like Brad DeLong on an earlier Yglesias argument (see post below; permalinks are bloggered), I beg to differ, and invoke the authority of renowned pataphysician Alfred Jarry's Gestes et opinions de Dr. Faustroll, pataphysicien. Jarry starts by defending the supposition that God may be considered to have the shape of three straight lines of length a, emanating from the same point, and having 120 degrees between them. He then goes on to perform a series of algebraical operations, that both provide support for prevalent beliefs about the nature of the Holy Trinity, and culminate in a proof that +/- God is the shortest distance between zero and infinity, in either direction. Which is about as formal as Matthew (or Kurt Godel for that matter) could ask for. Quod erat demonstratum, as they say.

2003-04-09T16:32:00.000-04:00

The downfall of tyrants as a coordination game

Chris Bertram has a nice short analysis of why the collapse of Saddam Hussein's regime has come so suddenly.

"For years now Iraqis will have been living a double life, perhaps muttering or mumbling what they think about the regime to close friends and family members, or even hesitating to do so, never really being sure who to trust. Now each of them will realise that there were many others who thought as they did and that will be a tremendous relief. Political power can never rest on force alone, but relies on patterns of fear and mutual expectation that can melt ever so quickly when people come to realise that others aren't sustaining the public performance any more."

Chris's basic claim draws, I think, on some more general arguments in political science/political theory about the sources of compliance in tyrannies. Russell Hardin expresses these ideas well in a piece he wrote some years ago about political coordination (collected in Karen Cook and Margaret Levi's edited volume on the limits of rationality). Hardin argues that no state could possibly compel all people to obey its rules at gunpoint. The Nazi occupation in Czechoslovakia and other regimes kept large numbers of people under control with little more than force simply because it was not necessary to invoke this force against everybody at once. Most individuals cannot expect to prosper from breaking the law because the police, even if they can't arrest everyone, can be expected to apprehend a significant number of transgressors. In Hardin's words, "The gunman theory might well be called the coordination theory of state power or even the dual-coordination theory. It depends on coordination at the level of government and on lack of coordination at the level of any potential popular opposition. The state need not compel everyone at gunpoint, it need merely make it in virtually everyone's clear interest individually to comply with the law."

The corollary of this is that once the population manages to coordinate against the state, the tyranny withers away. In other words, there's a tipping point. At a certain stage, people realize that enough other people are rising up against the state that the likely chances of arrest and punishment are slight, and the payoffs (both in terms of general welfare, and side payments from looting and/or being on the winning side) exceed the likely costs. A cascading process of mutually reinforcing expectations lead them to rise up against the tyranny; all that was solid melts into air. Of course, this rather general set of ideas may not be very helpful in guiding policy ex ante; it's pretty clear that US and British forces have been trying to induce this tipping point for some time, and were much too optimistic about how easy it would be to reach it at an earlier stage of the war. But the tanks in the centre of Baghdad seem to have done the trick.

However, as said below, none of this means that we're in for an easy transition. It's easy to get people to cheer at the downfall of tyrants, especially when everyone else is cheering. It's much more difficult to create lasting support for a new regime, and to induce the kinds of expectations likely to support a stable democracy, or even quasi-democracy.

Update: Julian Sanchez has further interesting thoughts on this.

2003-04-09T15:58:00.000-04:00

Proof of the pudding

I don't want to rain on anyone's parade - the images of Hussein's statue being yanked down, and of celebrating Iraqis are genuinely heartening. But does this mean that Iraqis will welcome the US and British armies in the long term? The history of Northern Ireland provides some reason for pessimism. People forget that British troops originally arrived in Northern Ireland to protect the Catholic population from rampaging Loyalist mobs - and were welcomed by Catholics as saviors. Hence this picture, of a Catholic woman giving a British soldier a welcoming cuppa.

As everyone knows, Catholic mothers weren't providing tea for the boyos of the British army for too long. Let's wait and see what happens in Iraq

2003-04-09T10:53:00.000-04:00

Greeley, Colorado

An extraordinary post at Pedantry today about Greeley, Colorado, the town where they're getting so upset at high school students protesting during an intermission. Go read it.

2003-04-08T21:36:00.000-04:00

Everything I know, I learned from SF

Brad DeLong takes up Matthew Yglesias' challenge, and finds good reason to believe that God could indeed create a szlacton if God so chose. De Long appeals to an unimpeachable authority, SF writer John M. Ford (whose peachy 'Masque of History,' The Dragon Waiting has just been reissued in the UK). Not the first time that an SF writer has proved a valuable intellectual resource by any means; readers of Gene Wolfe's "The Book of the New Sun" should be penalized at least ten points in this online vocabulary test for being more familiar than they ought to be with arcane terms such as 'fuligin' and 'favela.'

2003-04-08T12:03:00.000-04:00

Placing You - an Irish ritual
Kieran Healy has a post about how Irish people meeting each other (especially abroad) check out each other's political/historic pedigree and social networks as soon as is decently possible. After Henry posted yesterday (post titled 'hagiography') mentioning our great grandfather, he and Kieran Healy took a trawl back through three generations of our respective families, a genealogical ritual that passes for a handshake in Ireland, or perhaps what dogs do when they sniff each others' bottoms. This isn't strictly a class thing, though - at least not in the way my UK friends can infer all sorts about schooling, regional origin, and precisely locate their exact niche in the class system within 30 seconds of a British starting to speak. It's got more to do with politics I think, and social networks that don't quite map onto what you'd call a class system. When you get down to it, it's a pretty tribal method of figuring out a person's political background and mindset.

But, the thing is, it kind of works. Our old professor Tom Garvin calls it 'seed, breed and generation'. As I remember it, Tom was able to place most of his incoming class of about 300 in this way, and could probably tell you anything from what side their great-grandparents supported in the civil war (1921 - 1922) to how they might be expected to vote in the next election. Some might say this is not the sort of preference revelation political scientists should really be studying (!), but in a country where history is truly vital, knowing someone's family can tell you a lot about how they think. It's on the way out now, as we get further away from our defining civil war, and broader access to third level education has meant that the politically active and educated class has grown exponentially in the last 20 odd years. And a good thing too on both fronts. But I know that if I, or any of my siblings or cousins on my mother's side, ever went into politics, many would judge us on our family's involvement in politics going back over a hundred years.

The flip side of it all is of course the notorious ability and enthusiasm of the Irish to use these networks abroad. In Brussels, the Irish network is called the 'Murphia.' Tom Garvin once told me about a trip to Washington DC where, within 24 hours of landing and having a pint with a cousin of a friend, he was invited to meet a committee a senior lobbyist he'd met had been trying to get into for months.

I sometimes think the Irish have never come across an international organisation they didn't like the look of, and didn't want to help their family and friends, neighbours and pets to join. People from other nations avoid each other like the plague when abroad, but our crowd sticks together like glue. A family friend with long experience of the European Commission reckons that the Irish are good at working in international organisations because growing up in a big extended family trains you in strategic thinking before you can walk and imparts an unshakeable belief that there is always a possible compromise (pity we can't apply that second bit up north, then). Now that we're embracing higher standards of living and birth control, maybe that competitive advantage will fade too.

Henry and I have joked about this, and we think part of the Irish's disproportionate prominence abroad must be something to do with us being the only white, english-speaking, generally well-educated, fed and watered people in the world that are widely (and for the most part incorrectly) thought of as an oppressed minority...

2003-04-07T22:53:00.000-04:00

Hagiography

And don't miss Teresa Nielsen Hayden's wonderful checklist of how to pick out bogus saints. It's a subject close to my heart; our great-grandfather, after a lifetime of scholarship, political activism and rebellion (of the most respectable variety) spent his declining years writing a study of how many St. Patricks had existed in historical fact.

2003-04-07T22:38:00.000-04:00

Transnational social movements

Kieran Healy has a nice post on the scale of anti-war protests in the US, using some preliminary data from a massive dataset to show that the current anti-war marches are pretty damn impressive in historical context. They're even more staggering when one looks at them as an international movement; the protests in the US have sometimes been dwarfed by their foreign counterparts. But Matthew Yglesias asks a cogent question: can these protest movements be effective?. Funnily enough, social scientists have come to some interesting conclusions on this, most prominently Sid Tarrow, the main mover behind social movement studies in the last couple of decades. Tarrow, together with Jeffrey Eyres, has a nice short piece on protest movements post-September 11, which has some interesting findings. Tarrow and Eyres are clearly sympathetic to the anti-globalization protests that took place before September 11, but describe them as "intellectually weak and politically confused." The problem is that you can't effectively organize against an international regime; it's too complicated and diffuse, and doesn't have clear addressees. They argue that protest is really only going to be effective and coherent when it addresses states. This has the clear implication that post-September 11, these international protest movements are likely to be stronger and more internally coherent than their anti-globalization predecessors, even if they don't succeed in their own terms. And they have had palpable political effects; just not in the US. Look at Germany, where Angela Merkl is in trouble as leader of the opposition, because she is perceived as being too pro-war; at Spain, where Aznar is losing support by the day; at Italy, where the anti-war movement is helping to revitalize a fragmented and divided left, and even at Britain, where Tony Blair is having to tailor other aspects of his international agenda (pressuring Bush into adopting the Israel-Palestine roadmap) in order to mitigate domestic unpopularity. I reckon that the anti-war protest movement will be seen as being very important in retrospect, even if it doesn't do much in the way of changing US policy.

2003-04-07T21:57:00.000-04:00

The last refuge of scoundrels

Orwin Kerr at the Volokhs has posted a link to an interesting paper that he's written on the Patriot Act and Internet surveillance. He provided some legal advice which seems to have found its way into the bill, and reckons that Patrot didn't have all the nasty consequences for privacy that critics have claimed. Me, I'm just a blogger and political scientist who's pretty ignorant about the minutiae of this piece of legislation, but I did just sit through a session on "pen registers" and similar arcana at CFP last week, which came to conclusions that ran directly against those of Kerr's piece. Scroll down this page till you get to the summary of "David Sobel"'s contribution to see the other side's argument (my permalinks are knackered for a change), or even better, listen to the MP3 of his panel, and make up yer own mind about who's right.

2003-04-07T21:47:00.000-04:00

man bites dog

Wonderful article in the Post yesterday, about a spammer taking court action against some bloke for posting his (the spammer's) address and telephone number on a website. The spammer claimed that this was harassment and breach of privacy. The judge in the case has now rejected the spammer's petition with a remarkable degree of alacrity. Spammers are easy targets for scorn, derision and hatred, but there can't be many people who didn't have a warm glow in their heart after reading the article. The bloke who set up the website was pretty exuberant. Quoting from the WP ...

"George tried to send me a message, and wanted to make an example of me," he wrote. "Instead I had a message for him: Every time you try to mess with me, I will post it on the 'Net, and more people will learn about you. I don't encourage harassment against you, and I don't need to. The facts speak quite loudly enough. Your best option is to crawl back under a rock and suck it up, or move to some state other than the one I live in."

Someone (I can't remember who) had a good question at CFP - what do libertarians think about spam? It's a nice test case; something that pretty well everyone (except the spammers themselves) dislikes; but that can't be tackled without pretty intrusive government measures. Responses eagerly solicited (except from SdB wingnuts).

2003-04-07T17:25:00.000-04:00

Luch marbh, riomhaire olc
Well, I just dedded my mouse so my witty insights about Russell Crowe's wedding are lost forever. Apparently, computers do not respond well to corporal punishment.

Suffice to say, much respect for the gladiator has evaporated with the news that Dubya sent his best wishes on the big day.

And Rustler's hair do is probably the worst he's had since that awful mullet from Neighbours days.

Grizzle grizzle. What this bad computer business really means though, is that my transcription of our session last week on data retention, and my thoughts on various UK consultations on data retention will have to wait another day or so. I'll probably get a decent keyboard too while I'm at it. This one is as clunky as those toy ones from the 80's (remember Working Girls? I often ask myself if women have moved forward at all since then...).

Usually, I find that technology works better if you threaten (in a calm but clear voice) to take it to the dump. Not this time. But I still have to make good on my threats if the monitor and speakers are to be dissuaded from striking out as rogue peripherals.

2003-04-07T11:46:00.000-04:00

[4/7/2003 9:00:53 AM | maria farrell]
Electronic communications data protection Directive - approaching the endgame

The UK Department of Trade and Industry published its consultation on implementing 2002/58/EC (the revised 97/66/EC) last week. I'll be taking a proper read of it later on but a couple of things to note first off:

The Directive will be implemented by secondary legislation, meaning it will whizz through Parliament in no time. There's usually little enough leeway in influencing these implementations at the national level, as much of the hammering out has been done already in Brussels. Nevertheless, the time to influence is now and until this consultation ends on June 19th - when the thing gets to Parliament in the autumn, it will be too late to do very much at all.

On data retention, the consultation just points readers to the Home Office consultation. 2002/58/EC simply allows member states to implement traffic data retention, subject to European privacy and human rights legislation (whatever that's worth). FYI, the implementing legislation for data retention in the UK is the Anti-Terrorism, Crime and Security Act 2001. Other issues dealt with in the 2002/58 consultation are spam, the infamous cookie issue, and access to subscriber registries, i.e. phone books.

I'll be posting some analysis of these two consultations later today.

2003-04-07T08:47:00.000-04:00

Trusted Computing Platform Alliance and privacy

Via the Hunton & Williams (Brussels) news letter:

The German DPAs have expressed their concern about the trusted computing platform being developed by Microsoft, IBM, Intel et al. At its meeting on March 27-28 in Dresden, the conference of German federal and regional data protection authorities passed a number of resolutions, including one criticizing the planned development of central mechanisms and infrastructures based on the TCPA (Trusted Computing Platform Alliance specifications); TCPA is working toward set of technical specifications to make computing more secure. In particular, the German DPAs voiced concerns about the use of central servers that would control and manipulate hardware,
software, and data. They also emphasized the risk of other institutions or persons accessing confidential information from the servers, without the user being aware of the process. The full text of all the resolutions is only available in German

This is not something I've looked at properly, though I'll be interested to dig a little more and see what this Son of Passport initiative may mean.

2003-04-07T08:35:00.000-04:00

Statewatch Rules OK
Good news about a Statewatch success in increasing the transparency of the European Union Council of Justice and Home Affairs Ministers. Thanks to Tony Bunyan's tireless efforts, the Council of the European Union has agreed to publicly list the documents discussed at Council meetings and also to properly archive (though not necessarily make available) the documents. The European Ombudsman produced a report, spurred on by a Statewatch case, and the decision is effective as of December 2002.

This is good news for anyone - like the several people who mentioned the Council last week at CFP - who is worried by the lack of transparency and accountability of the JHA ministers. It's not going to change the world, but the decision means that at least we will know which papers are being discussed when decisions are being made by this powerful and secretive organisation.

It also means that room documents of JHA Council meetings are unavailable for public scrutiny because the interior ministries of Germany or the UK claim they 'no longer have copies'. Amazing, if I 'no longer had copies' of documents discussed at any meeting since I started this job, my boss would be well within her rights to fire me!

Henry tells me the reason there is so little scholarship on the Third Pillar is that the Council in particular keeps so many of its documents secret, and the relevant secretariat people are extremely unforthcoming. Measures like this can only help us to know about and hopefully have more influence the decisions being taken in our names.

Anyway, three cheers for Statewatch. Henry plugged them in his round-up of our session on data retention last week at CFP. The more people who know what good work this organisation is doing (and maybe even support them) the better for all of us.

2003-04-06T21:28:00.000-04:00

International institutions and democracy

Matthew Yglesias's recent post on international institutions, and dinner conversation with colleagues after the conference yesterday evening have gotten me thinking more. Why are there so many problems with the current US administration's stance, and where do I part company with the Oxblog guys? Provisional answers below. There's a lot of hyped up talk in the blogosphere and punditocracy about creating a democratic Middle East. Most of this seems to me to be hot air; and runs directly counter to our past experience of what has and hasn't worked. Briefly, I think that the historical record suggests some important conclusions. First, it is extremely difficult for outside actors to impose democracy by force. Second, the conditions under which outside imposition might work do not apply in the Iraqi case. Third - and this is the theme that I want to develop - even if these conditions did apply, the Bush administration's general policy stance suggest that they would screw it up anyway.

The academic literature on democratic transitions doesn't provide much help to would-be democratizers from outside. Discussions of the relationship between international factors and democracy promotion tend, in Philippe Schmitter's words, to consist "mostly of bland reflections on 'linkage politics', 'penetrated systems', 'fusion of domestic and foreign policy' and, of course, 'interdependence'." In general, efforts by outsiders to create - or even to promote - democracy - have failed, or have had marginal success. However, there are a few key test cases in which outside international actors helped create relatively successful democracies (I don't count situations, like India, where there was a complex mix of external intervention and domestic pro-democracy movements). The key cases that I'm aware of are:

(a) The post WWII consolidation of democracy in the defeated Axis powers (Germany, Italy, Japan, Austria) and in European states that had a slightly wobbly democratic tradition (France).
(b) The democratization of authoritarian regimes (Spain, Portugal, Greece) in Southern Europe in the 1970's/1980's.
(c) The democratization of much of Central/Eastern Europe (Czech Republic, Hungary, Poland etc) in the early 1990's.

Alert readers will spot that there is a common thread running through most of these cases - the European Union. Japan and Austria are the obvious exceptions. The EU provided a crucial cornerstone for democracy in post WW II Western Europe. As Timothy Garton Ash documents in
"In Europe's Name" the EU allowed Germany substantially to redefine its national interest. It also helped shore up democracy in Italy (where opinion polls have commonly suggested that citizens find EU institutions more credible and legitimate than their own), and in France. This relationship holds at later historical junctures, such as the introduction of democracy to the quasi-military dictatorships of Europe's southern fringe - Spain, Portugal and Greece. Guillermo O'Donnell and Philippe Schmitter, two authoritative figures in the democratization debate, are pretty skeptical in general of international diffusion theories of democracy, but find that the EU played a key role in consolidating democracy in these countries. In the current era, the anticipation of EU membership has strengthened democracy in many countries in Central and Eastern Europe. Jeff Kopstein and David Reilly find that the EU's strategy of enlargement to include states in its local neighborhood is a key factor that helps explain the successful consolidation of many regimes (altho' see this piece by Dan Drezner for a somewhat different interpretation of Kopstein and Reilly's results).

What does this suggest for the post-war situation in Iraq? It's hardly news to anyone that democratization is going to be difficult, even under the most optimistic scenarios. As Josh Marshall sez, it's not quite as hopeless as trying to develop faster-than-light warp drives, but it's not far off it. The lack of an existing democratic tradition, ethnic and religious rivalries, neighbours with an interest in stirring up internal tensions; these make for a lousy balance sheet for democracy. It looks as though the US is going to try anyway; but it's blowing whatever minimal chance it has, by failing to take account of the lessons of history.

Lesson One - It's better to create future allies than client states

The US played a key role in fostering democracy in post-WW II Western Europe. And we should be damn grateful for it. But the US, more or less deliberately, encouraged the creation of independent, and sometimes rambunctious states in Europe that would disagree with it on key policy issues. Further, as John Ikenberry documents, it created a set of international institutions (most prominently NATO) which constrained US power, and allowed it credibly to commit to its allies that it wouldn't trample all over them when it disagreed with what they were doing. These were tough decisions to make, and led to plenty of headaches and tensions over the next forty years. But they also allowed for the consolidation of democracy in Western Europe, and for allies to have some legitimacy with their domestic populations, precisely because they could speak their mind. Without that independence and legitimacy, they would have likely been failed democracies, or quasi-democracies at best. The contrast with, say, US treatment of states in Latin America, is clear, as are the consequences. Today, the smoke signals that are emerging suggest that the US is more interested in creating dependent regimes in the Middle East than independent allies.

Lesson Two - Multilateralism matters

The EU, is, in many respects, a mess. Its progress over the last thirty years is better described as a series of spasmodic lurches than a grand master plan; it suffers from endemic problems of political authority and legitimacy. But in one respect, it has been an unparalleled success. It has done incredibly well in shoring up democracy among EU member states, and to a lesser extent in promoting democracy in the states just outside its borders. States recognize the value of EU membership, and are willing to make important reforms in order to qualify; cf the recent changes in Turkey. The prospects for EU type institutions in the Middle East are bleak. But other kinds of multilateral institution can play an important role in promoting democracy, and more importantly, in making sure that democracy sticks. The current administration has rejected multilateralism in favour of ad-hoc "coalitions of the willing," and has deliberately or inadvertantly undermined relevant multilateral organizations. In so doing, it has weakened many of the international structures that might help bed democracy down. A rich international environment of multilateral institutions, in which democracies have privileged status, helps encourage democracy at the level of individual countries.

Lesson Three - Speaking softly works better than brandishing big sticks

The current US approach to Iraq and its surrounds is based on the massive and overwhelming application of military force. Neo-cons assumed that once the tyrant of Baghdad had his feet cut from under him, the Iraqi people would come flocking to the US side, and the Arab world would follow, albeit dragging its collective feet. This failure of imagination reflects the administration's continued contempt for "nation building" and other applications of soft force. Key administration figures presumed that once they broke the Iraqi army and security services, the nation would more or less build itself. I have news for them; nation-building is exactly what they're doing. Further, if they're going to have any success, they need to employ a different tool kit. Brute force doesn't win over populations. Nor do bullying, bribes and threats (the other cards played most frequently by this administration) prevail, as we've seen in Turkey, unless they're used sparingly, carefully and discreetly. Finally, nor do grand, if vaguely stated threats to neighboring powers. If the US is genuinely interested in building democracy in the region, it needs less trigger happy troops, less currying of favor with compromised figures from the Iraqi "opposition," and more use of traditional - if unfashionable - techniques of diplomacy. This is how the EU underpinned peaceful democratic transitions in the states of Southern Europe - friendly-ish diplomatic relations with the governments in question, quiet overtures towards the business community and civil society, and efforts to build transnational private relationships that could then be leveraged when the transition process proper got underway. It is not what's happening today. The success - or otherwise - of Iraq's new regime will depend in large part on its neighbors, and US policy towards Iran and Syria has been schizophrenic and counterproductive. One minute, the administration is making grandiose, if vaguely stated threats, against Syria and Iran; the next minute, it's quietly praising them for their cooperative attitude. Diplomatic policy seems more driven by faction-wars within the administration than by any overall strategic plan. And that's really, really, stupid. In this context, it sends out mixed signals, and doesn't provide these states with any stake in the post-war dispensation.

2003-04-06T13:43:00.000-04:00

Conferenced out

After getting back to Toronto post-CFP, I jumped immediately into another one day conference on "Dilemmas of Global Justice," organized by my colleague Nancy Kokaz. A pretty good political theory conference, although two of the key participants, Charles Beitz and Stanley Hoffmann both had to cancel at the last moment. I chaired a panel, tho' I at best have a glancing acquaintance with political theory; but then, chairing doesn't involve anything more demanding than harrumphing loudly when the speakers exceed their allotted time. Thomas Pogge of Columbia delivered a particularly interesting and provocative paper arguing that the developed world had a strong duty to alleviate poverty in the developing world. Of course, much of the discussion focused on the war and its consequences; interesting papers/comments from Janice Stein, Tom Pangle and Lou Pauly, all colleagues of mine in the U of T pol. sci. department. All of them were directly or indirectly critical of the Canadian level of debate on the war, arguing that Canada's current position wasn't really tenable. Janice's position was that the Canadian government hadn't really begun to grapple with the issue of whether war was justified or not, hiding instead behind the (more or less vacuous) claim that since the UN hadn't sanctioned war, it was illegitimate. Tom drew on Thucydides and De Tocqueville, expressing the fear that America's allies, because they had abdicated military responsibility for tackling real world problems, might degenerate into a sort of foreign-policy infantilism - carping, resentful and impotent. Lou shared some of Tom's fears, but was a little more sanguine about the long term prospects; he spoke of the need for "followership" among the allies as well as leadership from the US. The conference was recorded, so I presume that MP3s or streaming will be available sooner or later. As for me, I'm conferenced out after having had 3 meetings back-to-back. Happily, I don't have any more to attend before APSR in September.

One final point from CFP - Larry Lessig's paper (summarized below) is a fascinating further step on a journey from clerking for Scalia to a species of leftish populism. He's now taken a strong position on concentration of ownership of the media, which he (rightly) views as being very dangerous for creativity. I'm looking forward to seeing his presentation when it gets written up properly.

2003-04-05T01:28:00.000-05:00

CFP conclusions

The conference is over; our transcript of Larry Lessig's speech below. Some health warnings may be appropriate …

Our coverage is very much on the spot stuff; it has summarizations, elisions, on-the-fly rewordings, and doubtless a fair few inaccuracies. Don't use it as a definitive guide. Instead, if something looks interesting, check out the main CFP site for MP3s and streaming of the various panels. We're happy to correct any glitches, and have started to do so already (thanks Bruce).

Finally, David Singer has also been blogging some of this stuff, at this site; check it out - a more analytical take than our own, stream-of-consciousness approach.

Keynote speech

Barry Steinhardt

Introducing Larry Lessig, I'll quote a piece from Wired by Stephen Levy on how Larry came to public attention in the Microsoft case. In the realm of Internet politics and law, no one even approaches Lessig's stature.He is a rock star, and has had the most brilliant career in Internet law, with two books, the Creative Commons project & c.

Larry Lessig

I want to talk about culture, about the criticism that culture permits. Every social system depends on this type of criticism, which, as we have seen historically, is extraordinarily hard to build. The First Amendment protects the press, but the ink wasn't dry before it was being violated. The ideal of freedom in the First Amendment took hundreds of years to build and takes extraordinary energy to keep. We pride ourselves as lawyers on the principles stated in cases like NYT versus Sullivan. But when the Smithsonian wanted to put up an exhibition on the debate about dropping the nuclear bomb, Congress voted unanimously to ban it. This is the struggle that a free society has to keep free the opportunity to criticize culture, and ideals that are dominant within that culture. This type of criticism has historically been free in our society, it is increasingly controlled. The lesson our lawyers fail to teach is that criticism is effective when it speaks a language that the culture understands. In 1969, Archie Bunker appeared on TV. This was an extraordinary piece of cultural criticism in its time, that spread across mainstream television, and defined an era of reflection on who we had become. That criticism was possible then. Today, too, we have that kind of freedom. (Lessig displays the video clip of Bush and Blair in a soppy love song music video – much laughter!) This is cultural criticism too. It's not CBS; it's is made by individuals and spread by technology and a medium that we all respect. This form of criticism teaches us that to criticize requires speech which people understand. This has always been the defining feature of a culture that permits this kind of criticism, a free and sane culture. What makes this freedom possible? In 1969 when Norman Lear had the idea for All in the Family and took it to ABC, he showed them the pilot and they found it too edgy. Lear made a second pilot -even edgier - and brought it back, they told him that he wasn't getting it. The same thing happened again and ABC said they wouldn't run it. He did what he was free to do; he took it to CBS who ran it. This ability to take it to a different channel is a story of how you can exercise artistic freedom. This made it possible for the show to become a part of this culture.

We've spent years celebrating this democratic technology, that allows people around the world to rip, mix and burn this culture in a way that enables criticism. The conditions under which these freedoms were possible are increasingly changing. This freedom from control that Lear experienced is changing. It is changing through an extraordinary concentration of channels of distribution – 80% of music is distributed through 5 firms. In 1947, 80% of newspapers were independent, today it is less than 20%. The number of foreign films shown has fallen drastically. There has been a radical transformation in the structure of the culture that mainstream America can see. These changes have come not just through the market alone but through government action. The FCC 'finsyn' rule controlled content of programming, and was repealed in 1994. It kept a separation between content and conduit. Because of this repeal, in 2002, 75% of prime time television is owned by the networks. The networks who would fire Norman Lear if he tried to make something too edgy; they would own the show. The structure of independence and choice of channels has been changed by changes in the ownership and rules governing television. A critic of the finsyn rule, whom I admire, said that repealing finsyn would put content out of business; all that television seen in people's homes would be controlled by three people, and that the losers in Congress's attempt to control it would be the consumers. Jack Valenti, who was that critic, lost that battle. He recognized the consequences of reducing the number of people who could control the distribution channels. We lost the freedom of Norman Lear to say that edgy is just what we need. Now, fewer people own more and control more of our culture than ever before. Never has there been more control over the creation and distribution of culture.

This concentration goes on in the background of a change in the character of copyright law. My favourite example, which I can't stop repeating, is Mickey Mouse. In 1928, Walt Disney, this hero of mine, developed the character of Mickey Mouse in Steamboat Willy. Steamboat Willy was ripped off explicitly from Steamboat Bill, a character developed by Buster Keaton. This is a kind of creativity, a Walt Disney kind of creativity. We should celebrate this creativity, the ability freely to rip, mix and burn the culture around us, to take from our culture and re-make it, to do to culture today what Walt Disney did to Buster Keaton in 1928. You can only do this if you have a cellphone with EFF's number programmed in. In 1971, another example, two cartoonmakers were banned from satirizing Mickey Mouse, after federal court action.

Why is there this extremism in protection and the scope of intellectual property rights? Bizarrely, it's because there is one thing that popular culture has learned from the digital revolution; it's binary thinking. It's the idea that it is either all or none, with nothing in between – either a totally free market with zero regulation, or total regulation with no position between the extremes. To question the extreme is to throw yourself on the other side, so we always find ourselves supporting an extreme. To question one extreme is to endorse the other. This must change in our debate. We have to stop selling these subtle ideas, weneed to show people something different between these two extremes. Not the idea free beer, but free speech. Not Britney Spears at zero cost, but the freedom to build, to criticize, to tinker and transform, to "Disnefy." This is a core part of our freedom, which has been taken away by this extremism.

I spent a lot of time talking and suing, it's a failed strategy. We're not a culture that understands much through talking alone, and we can't depend much on radical transformation through the courts any more. We need to find ways to build and to show people something different from what they imagine the debate is about. People think there are just two kinds of views out there, either all or nothing in copyright protection. But of course there are people who stand in the middle, who think copyright should protect some of their rights, even if not to the extreme lengths of Hollywood. In the beginning of the internet, we had an architecture that gave copyright holders no way to control their copyrights. It was a world as if there was no protection for IP. John Perry Barlow and others celebrated this. The IP holders quickly responded through litigation, legislation and coding to change that architecture, so that in the future we will have an architecture of perfect control. The default will be all content will be perfectly controlled. The problem is that we are solving for the extremes here, moving from one extreme to another. If people want to live in the extremes, let them, who cares. I've met people like this, they're kind of fun. But they're not all of us – the all control or no control people. Most of us are different from these extremes and live somewhere in the middle, where some rights are reserved. We've got to stop this process of defining the problem as if it were only the extremes, so we can define the middle to show people what the world really looks like. That's the purpose of this nonprofit project called the Creative Commons, which wants to show that most of us are in the middle, to build a layer of reasonable copyright law on top of this insanity. We want to build through this process a balance in the debate based on reasonableness – not through government action but voluntary action. Through the actions of thousands, maybe millions, who will mark their content with these tags and licence their content in a way that says they don't believe in the extremes. The tags go beyond fair use; they say about the content 'go ahead and sample me', 'share me', 'liberate me from my insane author.' So, if we're Communists, we're Jefferson Communists; from the beginning of our tradition, we have had the ideal, set content free. That's how America was before the extremists succeeded in transforming the rules that govern culture.

This concentration is only getting worse. On June 2nd, Michael Powell will be holding hearings. He believes that the world where six companies own everything is still too restrictive and will try to lift the rules on ownership of media. So we will have not six companies but three companies, which will control how content is expressed through the network world. This change needs to be fought, and it has been fought, by journalists, directors of film studios, and creators. They've gone out to say that this change in ownership would be destructive for creators. The NY Times and LA Times have been silent because these organizations are part of the problem. They answer to corporate boards who would themselves benefit from lifting these restrictions. There's unanimity among creators, but there is silence from the traditional channels, and a corruption of this culture of criticism. Our struggle has got to be to free culture, and creators, artists, musicians, DJs, from structures of control that direct how they express their creativity. Not so they don't get paid, but so that they aren't second guessed in their ability to criticize, to free the world from Disney Inc and get to the world of Walt Disney. We don't get there by talking, not by clever legal arguments, but by doing something to express it passionately. This is a time that the culture needs to criticize itself, especially when we are criticized around the world. In my brief opportunity to do something about this, Eldred v. Ashcroft at the Supreme Court, I was asked a question by Justice Kennedy, who said 'Counsel, I don't notice any harm to speech that's been caused by the changes that you are talking about'. I remember having a flash of recognition that there were two ways to answer this. My response in clever lawyer mode was to say that this is not an argument about the effect but about limits on Congress' power. I invoked a long line of authority, that the conservatives on that court had articulated, that supported our case. But at the moment I said this, I had this other flash, which was 'these justices need to get this as passion and not argument, to feel this.' And as I finished the sentence I wanted to say 'Justice Kennedy, it's obvious how this restricts speech. This extension to protect just 2% of creative work for 20 more years of corporate returns locks up everything else. The ability of others to cultivate a culture is silenced' That argument rings in my head every morning that I get up This strategy of just speaking to them in the traditional lawyerly way didn't motivate them. They didn't get it. Not just I have failed to make these issues of free culture salient. Salient to a broad range of Americans who need to see that we come from a tradition where culture was free, and we need a tradition where we free this culture again so that these extremes of total or zero control don't narrow us into a box where the creativity and passion that defined our past are lost. We need steps to free culture now, through your work in expressing the value of free culture, and showing instances of free culture that allow us to reclaim a tradition that we should be proud of, a tradition of resisting control.

Q&A

Nick Gillespie (editor of Reason magazine) – I wish Eldred v Ashcroft had gone your way of course, but I have trouble when you look back to a golden age of Archie Bunker, and say that we're deprived in contrast. I can't see today's proliferation of different viewpoints and media outlets as having less range of voices and perspectives than that era. Does anyone think that there is less diverse TV now than there was then? 10 years ago, our ability to collate and compile different information about what was going on in the Persian gulfwas nothing compared to now. We need to distinguish questions about who owns the means of production from content, but while today things aren't perfect but they're pretty good.

Lessig – I just came from a conference of film makers in St. Louis who say the range of opportunities to get into the mainstream distribution market are reduced. There are of course other channels, that are more diverse. The question is how to get into the channels that 80% of Americans see all the time. If you look at what has happened, empirically not ideologically, you see a homogenization of what constitutes mainstream culture.

Gillespie – there are more opportunities to exit mainstream culture.

Lessig – Reason magazine is a strongly libertarian magazine and strongly supportive of limits on copyright. To the extent that so much culture remains under the control of a small number of actors, that is a limitation on what I call free content.

Audience (community media person) – We've been trying to get this across. Michael Powell has said he doesn't care about our studies, we should just throw away the rules. He isn't interested in creator's views. The FCC's not accountable to voters. Do you have advice on how to make impact on this kind of mindset?

Lessig – there's no persuading Michael Powell on this issue. Period. I don't mean to criticize him in general, he's exactly right on where spectrum policy should go. On that issue, freeing spectrum licencing is a good check on this. You're not going to change Michael Powell. The only possible change is through Congress, to which the FCC is ultimately responsible. The hard question is whether Congress can do anything, with the views of the DC Circuit Court and the Supreme Court on the First Amendment, and on restricting Congress' role. There is some rumbling. The only way to resist that, is to resist Reason magazine's default attitude on that – the attitude of 'show me the effect, show me how we produce a less diverse culture for the bulk of Americans'. Only if you can show that, will it make any sense to talk about media regulation consistent with the First Amendment. Most people don't really care or seem not to think money affects the content of programming such as the news. Getting shows talking about how CNN is great on channels owned by sister companies.

Audience – I am pessimistic, I think that any legal victories will be neutralized by contractual arrangements. Most artists and inventors are bound by contractual agreements.It seems that the Creative Commons is trying to use contract law to benefit artists. What is your opinion on how to overcome the contractual realities?

Lessig – It's a huge problem. 200 hundred years of Supreme Court authority has weakened the constitutional protection for artists, who find themselves having to sign their rights away. I don't think that we can tackle this directly. We need to give artists another way to make money that don't depend on the old way of doing business and we have to stop Congress of using law to reinforce the last century's business model. In the last five years, the Congress has used law to say that the way that the music industry made money in the 1990's, is the way that it must work for the next 150 years. That insanity is the core problem here, and not contract, and it's the thing we must tackle first.

Audience (Mike Godwin) – In response to Nick's question, you said that music and movies are less consolidated than tv. There has been more diversity, because people have been looking for ways to make content more edgy, even as media has consolidated. You haven't commented on efforts to re-architect various open architectures on the internet so far, which have only increased in intensity since you wrote your first book.

Lessig – On your comment, my bias, like Reason magazine, was to believe that ownership didn't matter, and I agree that with lots of channels you can watch C-Span and BBC. This may be sour grapes on the part of creators, but people like Leonard Hill, who has been creating forever, report a big change in the opportunities available to them.

Godwin – It may be that they're being forced to be creative.

(inaudible comment from audience member)

Lessig – On the second part - you're right – the fears that we talked about when I first published Code, was that they would use technology to get more control over the spread of content than copyright law would give them. That's what has happened, and, what's worse, law backs it up. We see no effective limitations on this, either by courts or by legislatures. That's another reason why we have to be worried about concentration of control. We have longer duration, broader scope, broader reach, stronger protection, and concentration in the industry. This has all produced a more restricted free culture. I don't know how new this is that we're talking about it. I went back to the 1993 CFP proceedings, and found one discussion in CFP of copyright issues, something that you said. When you said it, there was a puzzled look from the audience, as if copyright law had made a brief appearance and disappeared. We're in a world where what you tried to get people to recognize as a danger, has become a core source of the danger. But my message is that talking hasn't done anything. We've been writing books, but mainstream people don't see the issue yet. They see questioning copyright as endorsing theft from Britney Spears.

Audience – There is a broader problem; the naïve anti-regulatory libertarian attitude that has taken hold in our political discourse since 1980. Because of this attitude, the only time that regulation is engaged in is when moneyed interests grab hold of the regulatory process and use it for their own ends, as in copyright. Do you agree with this way of looking at this, and are you interested in using your intellectual leadership to attack this broader discourse in our culture of libertarianism and anti-regulatory views.

Lessig – I did think about doing this once, about writing books saying that if you focus too much on this anti-regulatory strategy, you will be missing how different kinds of regulation threaten freedoms. More and more, I think that this is an unhelpful debate. Libertarians and anti-libertarians, both see that this has gone too far, and I want to capture this moment of recognition. In Eldred, the happiest moment for me was that we had not only Reason, but Phyllis Schafly, Milton Friedman, Ronald Coase saying that this had gone too far. That's not getting them to see that libertarianism is wrong. We need to build a coalition that cuts across left-right boundaries. It is not about conservative versus liberal, about libertarians versus statists; it's about a balance in the content of intellectual property, and a set of deeper values that we all agree on.

Audience – Couldn't you form a coalition with other people if you went the other way?

Lessig – If you frame this like the 1960's, like the traditional left-right question, you've lost. If you frame it like that, people won't listen any more. It's not just about that, it's not just Ralph Nader versus Milton Friedman. It's about why both Microsoft and Intel are both more interested in open access to architectures than they were ten years ago. I'm with you in spirit, I've gotten into a lot of trouble for it, but five years down the road, it's not the best strategy.

Audience – coalitions are great. We need coalitions that speak to people. So many people love mainstream TV and Britney Spears, and the companies that sell them? Can you talk to them about their insecurity about technology and the accelerating society? Can we say that we need some of these criticisms, especially at a time of accelerating change?

Lessig – I agree that there are these anxieties. Unfortunately, in the shadow of 9/11, I'm not sure how to speak to them. It's exactly the time that we should be doing this, using the expertise of the people in this room. Building systems that respect privacy, even if we do recognize patterns of behavior that have to be monitored. If we raise the level of discourse just one step, we could avoid the architectures that are being created now, which are much more pessimistic and dark than I thought when I wrote Code. But it is almost impossible to get the level of discourse up there. It has been so hard to get discourse at a high level with regard to easy questions like the IP questions; I'm not sure if I can do it with regard to the hard ones.

Stephanie Perrin – I was reluctant to come to the microphone, because so many Europeans and foreigners here have gone through the experience that Canada went through. Have you looked at this problem abroad? Jack Valenti went around the world in 1980's and 1990's making sure that there was access for US media in other countries. There were wars over teensie little screen quotas in Canada and Europe. The strategies that other people came up with to get access to their own media, books etc have actually worked. These strategies are useful to look at.

Lessig – Looking across the world, we see some of the greatest and some of the worst things. You've talked about some of the great things. On IP, people abroad adopt policy changes that will have no power in changing things. Japan's education ministry is pushing change in the copyright law that would protect old movies. Why is the education ministry interested in that? Mexico is considering life plus 100 years terms for copyright. This will decrease access to people's own culture, while Hollywood is cheaper and available. It seems to be such an easy case, but there is such a deficit of political action. I just don't get why people are doing this. People should resist American extremism, just for this purpose. Sometimes they do, and sometimes they don't; if you can teach us how to get more of it, that would be great.

Update - I've gone through Lessig's speech again, using the MP3 available at CFP, and made various tweaks/expansions.

2003-04-04T15:21:00.000-05:00

Plenary Session 14 – can free speech survive the new intellectual property regimes

Jane Ginsburg, moderator

I will start out by explaining what these new IP regimes are, their merits and demerits, and how some are more controversial than others. In 1997, Congress enacted the DMCA.

One obligation concerns the role of communication service providers and potentially infringing material on the internet. The portion of the act concerned with limiting cSP liability for 'mere conduit' service providers who have no liability for infringements done by their service users. Also, CSPs won't be found liable if they cooperate with notice and takedown, and the burden is on the right holder to identify potentially infringing material. This alleviates the liability of CSPs hosting or providing connectivity. The next piece of the DMCA has achieved much attention and opprobrium – protecting access to a copyrighted work or unauthorized copying or distribution of a protected work. This makes it illegal to engage in circumventing access control, or to sell, distribute or offer a device (software) designed to circumvent access control. It also applies to anti-copying controls. The DMCA address those supplying the means to circumvent access control, not the perpetrators. The copyright management information (not the same thing as DRM, digital rights management, a broader idea which includes rights controls) provision makes it unlawful to remove or tamper with the information that identifies the work's author or other information related to its copyright. In implementation, a relevant case construed copyright management information provisions as not protecting against framing that obscured some information on the framed website. The best known case involving mere conduit is the RIAA v Verizon where RIAA sued to find out the names of Verizon's customers who were alleged rights infringers. There was also the Harlan Ellison case, where Ellison sued AOL because a few over-enthusiastic fans had put his novels onto chatrooms. Ellison lost (discussion of legal niceties).

I leave to the panelists to discuss the cases involving the most controversial provisions of the DMCA, those related to the anti-circumvention devices. I note that in the Lexmark case, I said that this was an egregious overstatement, and that the lawyers involved should be censured, just before the decision came down that their arguments held.

Chuck Sims

These immunities were introduced partly to facilitate the spread of computer technology, had the income streams of the conduit streams and the host streams been endangered. The provision is devised as not endangering First Amendment interests. I think it's a net gain for speech interests. The provision that has received most attention in the circles of people in this room is I am a lawyer who defended the statute in a Second Circuit, and a three judge panel agreed unanimously that the statute was not constitutional, and was perfectly consistent with First Amendment interests. I think it's useful to go back to the provisions of the copyright clause in the constitution, which explains why Congress did what it did. This is the word "securing," the exclusive right to authors' respective works. This is not only to allow income streams, but to secure them. The reason that Congress enacted this in 1998, after WIPO, was because these streams of income, which have been in place for a few hundred years, were increasingly insecure. It was precisely the leakages caused by incredible advances in storage technology, in copying technology, in allowing copied works to be spread across the world that meant that these streams were in danger. I'm sure that the amount that has been lost in the last five years, was greater than in the last few years. The motion picture industry, the book industry etc, were withholding their works from the market; they said that we need protection, or we won't be able to build these things. We can't make our work available digitally, because once we send one out without protection, the income stream that we're entitled to get will be instantaneously lost. One only has to look at what's happened to the recording industry over the last few years to see what's been lost.

Most arguments that are made against the DMCA misunderstand it. People say that the DMCA abolishes fair use, undermines fair use. A recent case rejected this argument in the same terms as the Second Circuit, but more pungently. He said that while certain fair uses may be more difficult, no fair use has been prohibited. People can criticize, comment and review as they have always done. There are great paintings by great painters in our living rooms, and we have rights to them, but nobody has any right to go into someone's living room. When I grew up, before VCRs and videocassettes, there was the same right to make fair use of movies that there is today. But it was a little more difficult, because the technology wasn't there; MGM would only release Gone With the Wind every five years, and you weren't allowed to bring a camera in to the theatre. Did this mean that your First Amendment rights were violated, because you couldn't bring a camera in? There wasn't a First Amendment problem – fair use exists within whatever access the content holder chooses to provide. Every judge who has looked at the relevant portions of the DMCA has upheld it. I stop there; this interferes with what people want to do; with what's convenient. But we have laws to secure the income streams that the constitution says we have to secure.

Yochai Benkler

Let me start by showing you what it is that we're talking about (commences short video clips from McDonald's Ad, Star Trek etc on big screen). We've spoken for twenty minutes and Eldred has not been mentioned. This is the fundamental divide between those who think it is about whether free speech can survive given intellectual property regimes, and the people who want to discuss the specifics of intellectual property. The constitution asserts rights less heavily when people want to define other people's speeches. There is more freedom to make your own works, than to use the works of others. This is the highest protection of speech. (another video showing Michael Jackson). This is the core of speech, what free speech is intended to protect. This is less important (satirical video showing George W. Bush as rising sun turning happy little bunny rabbits into fireballs, that uses images from C-Span and the Teletubbies). When we start with the First Amendment, we have to remember that one man's vulgarity is another man's literature, that how you say something is as important as what you says, that a law that says that you cannot use certain words are is a restriction of free speech. This is how these provisions limit the First Amendment. Any law that tells you "use a different word, use a different image," is a law against free speech. If you are told to use a different image to protect the rights of Britney Speech, this is against free speech. So we should not start from the law. So we have just had a decision in Eldred which is a wrong decision, a weak decision, an interpretation of the First Amendment that cannot hold in the long term. What is unstable about it, is that it says that as long as Congress doesn't change a statute too much, you don't need First Amendment scrutiny. But there is a paradox here; you need First Amendment scrutiny to determine this. The First Amendment first of all requires fair use, as established in Harper v. Row, and the Court has said that Congress can't change the traditional contours of copyright. So the battle is over what the traditional contours of copyright are. You couldn't make a copy of the picture in the theatre – that was technology. But what is preventing you now is law, and law has to be justified. What is really at stake is a transformation. For 150 years we have seen a concentration of production of information around the owners of capital. But digital technology means that everyone can take, cut and paste information, and pass it on to everyone else. It is a phenomenal freedom, but it challenges a basic business model. The industrial giants, who built a model based on passive consumers, aren't going to go quietly, and they're fighting.

On an optimistic view, the situation is slightly less stable than it was before. These people now have to defend this as traditional contours of copyright, which is difficult. There is also a political movement building up. Finally, there is a cultural movement seeking to circumvent this; people are beginning to develop the habits to make their own and to share it around the owners of capital. And that is promising.

Ginsburg - The Supreme Court has continually said that the dichotomy between free speech and copyright is a false one; copyright makes it worthwhile for people to be authors. Is this a false or real dichotomy?

Sims – I think it is a false dichotomy. One good example is whether this country should be at war. Has the DMCA had any conceivable impact on public support, the one way or the other, the arguments that can be disseminated, the formation of groups and power one way or the other. It has nothing to do with that. It is an infringement to take Chomsky's work or Ken Pollack's work and to put it all on a website, saying this is what we should do. Benkler thinks this a violation of the First Amendment; I think it's not. Just because you can't put this up, doesn't violate the First Amendment. There isn't a violation of free speech interests.

Benkler – There are two separate arguments. The first is whether copyright law affects the war on Iraq. This is saying that the inability of people to use copyrighted materials affect their discourse. But the First Amendment is about the freedom of people to express themselves as they are. It is about individual expression, just as much as it is about democracy. If I want to use a set of copyrighted materials to express myself as I am, and I am not allowed, this creates a tension at least with the First Amendment. I don't want to get rid of all copyright; no-one seriously suggests that. Just as people who criticize the contours of libel law because of the First Amendment aren't saying that we shouldn't have a libel law. I am not saying that copyright is constitutional, but its contours must be governed by the First Amendment. You must justify these contours, by discussing how they affect the right of people to speak as they wish. I have no doubt that copyright law helps speech – whether 75 years of protection is necessary is another matter. Whether the DMCA is necessary is another.

Ginsburg – Yochai, you gave a clip, which didn't violate the First Amendment, because it clearly uses parody.

Benkler – What about the second clip?

Ginsburg – It was a parody too.

Benkler – You need to know the law, one way or the other; that is already a constraint.

Ginsburg – If it makes intuitive sense, then it's probably fair use. On matters like parodies, in other words transformative use, where you make something more of it, this is privileged under copyright. How did you make that clip. What if the material you wanted to use was protected technologically? You may have had fair use right, but not been able to use it. The courts have said that fair use need not be used in the most convenient manner, and we are not yet in a world where everything is locked up digitally. But let's say, it gets harder to find the unprotected analog copy, you might be in the position of not doing it, where we would all lose, or in fact violating the law. The law will let you do that, but it won't allow you to buy a device that would allow you to do that. The actual act is fair use, but can you do it without the device. This is where the tension is, and where the test will come, if we get to the point where exercising fair use is not only not convenient, but presents a serious burden.

Audience – In one free speech case, the court claimed that Congress can criminalize software. What do you think?

Sims – The Second Circuit simply said that if Congress can criminalize hardware, it can criminalize software. Just like it can criminalize burglary tools, it can criminalize software intended to steal.

Audience – Deeply technical legal question – hard to summarize well.

Audience – Benkler's difficulty with showing the clips shows that we do need access to technology to express ourselves.

Benkler – The question of code as speech is a hard one as a practical and First Amendment matter. I think that the position that code is free speech is problematic, but it is also problematic to say that code can be regulated. I think it should be more regulated by the First Amendment, than at the moment where it is copyright law. Regarding easy usability, this is not the problem. The problem is prohibiting people from using images as they can. Where image and sound mesh with text, quotation is prohibited, because the only way to quote video is by streaming to a corner. We don't have to wait for complete lockup in order to enforce the justification of law.

Audience – copies given to individuals do not usually represent lost sales as David Boies said in the Napster case.

Sims – David Boies lost the Napster case. You're not living in reality if you think this. There are huge numbers of lost sales; the traditional markets of the record people are being drained quickly. We're living in a world where everything that Al Jazeera is saying is available. People are criticizing a possible future world, which no-one who looks at things seriously thinks is going to happen. It's not in the interests of copyright holders to have complete lock-in.

2003-04-04T12:54:00.000-05:00

Plenary session 13 – keynote from the right and left, Former Rep. Bob Barr and Rep. Jerry Nadler

Barry Steinhardt

I want to take this opportunity to thank the organizations who made this conference possible, and some of whose representatives have been at this conference – Microsoft, Hewlett Packard, Yahoo, IBM, the Markle Foundation, OSI, Public Voice and the ACLU.

Now, to introduce Congressman Nadler, my own Congressman, who is serving his sixth full term, first elected in 1992 after 16 years in the NY state assembly, and has emerged as a national leader on civil liberties issues. He has been a defender of individual rights and religious freedom. He has been said to epitomize liberalism as it is supposed to be.

Congressman Barr is my favourite conservative Republican member of Congress. We are proud of our work with Congressman Barr on a number of issues, and on some others we can agree to disagree. William Safire has described him as Mr. Privacy. He has a chair on privacy at the American Conservative Union. He is a board member of the Patrick Henry Center, and is on many boards and a frequent contributor on these issues around the country.

Congressman Nadler
Congressman Barr, with whom I've differed over the year, has been an ally on privacy issues – this is not a right/left issue. In times of crisis, people view this nation's fundamental liberties as a threat to security, but these liberties secure us against threats. There is a pattern to this; we have always harmed our own liberties during times of crisis, apologizing for it 20 or so years later. The historians have always found that we didn't need to do what we did.

Some curtailment of liberty may be needed but just accepting it at face value is wrong. We get less of reasoned arguments and more ad hominem attacks on critics of these measures, and this does not serve our nation well. On the Patriot Act, when Ashcroft spoke to the Senate committee for one hour, the Attorney General never provided satisfactory answers to the questions that provisions being sought by the government would not have helped prevent 9/11. Even more worrisome, the House approved these encroachments on liberty without getting answers to these questions. The Judiciary Committee, probably the most ideologically divided committee in Congress, managed to come up with a consensus draft of the Patriot Bill. This agreement was achieved by a bipartisan coalition which protected civil liberties and was agreed 36 to nothing. The bill disappeared over the following weekend, and the DoJ came up with a completely new bill. This was presented to the House (227 pages in print that was warm to the touch) on the Wednesday, the debate was at 10am and the vote was at 1pm. Some said you can't deal with a bill of this size and sensitivity without it being properly vetted, at least overnight, for example by the representatives, lawyers, ACLU, etc. The Chairman of the committee responded to my raising this point by saying that these ideas in the bill had been around for some time and so didn't need a full debate. The ideas had been around for a time, but we had to vote on the basis of summaries and it was unacceptable. Organisations like ACLU, CDT, EPIC and others did lots of work on the Senate subcommittee bill but it was binned.

There are rumours that the DoJ is drafting a follow up bill to the Patriot Act. A Senate committee asked if a bill was being developed and was told it was not. Shortly after, a draft proposal was leaked to the press. Why deny you are drafting such a bill? My conclusion – this is to keep the bill secret, wait until another attack or crisis (or perhaps until the war with Iraq had started), and then introduce the bill and say we have to pass it tomorrow and can't wait until the day after, ram it through sight unseen saying lives will be lost otherwise. My thanks to the brave person in the DoJ who leaked the bill. When or if there is another act of terrorism (and it will happen despite our safeguards) the panic will open the door for unjustifiable breaches of our civil liberties.

The Total Information Awareness programme. People here know the problems with that programme and the Patriot Act. This will mine information from a variety of sources – anywhere you leave an electronic trail, credit cards, bridge and tunnel authorities, phone companies – looking for patterns of activities and will allow for unrestrained intrusion of the government into citizens' information without warrant. It means intrusion first and accusation second. Senator White (sp?)'s report would require a 90 day delay clause against non-US citizens and against US citizens, further permission would be required. We need to put a complete stop to this until it can be adequately reined in. There is the government's CAPPSII program to flag suspicious travelers and label people without them knowing it is moving forward. This would stop people getting on a plane (without their prior knowledge and on the basis of secret information) without due process. This goes well beyond screening passengers and stopping them from bringing dangerous implements onto the plane. There are also concerns about data sharing between law enforcement. Military agencies do not have the same restrictions on data sharing and access as law enforcement. These barriers are being broken down and threaten the legitimate right to privacy. Bob Barr and I proposed that there should be a privacy impact statement for every proposed government policy, in the same was as environment impact statements are required in other areas. There is no harm in thinking about things before you do them, and instituting this as a matter of process.

Finally, the presdent has made an unprecedented claim to detain individuals without lawyers, habeas corpus, judicial review, nothing, based on some secret information. People can be thrown into jail incommunicado for ever and this applies to US citizens and non-citizens. You have no means to challenge the detention. The magna carta said the king cannot arrest and hold someone without saying why. We've had two recent and terrible court decisions. The fourth circuit court said it has no way to hear a habeas corpus claim over prisoners in Guantanamo Bay because it has no jurisdiction. Here in NY a couple of weeks ago, an alleged enemy combatant was arrested at the airport – the government was said to be allowed to hold him indefinitely on the basis of having some evidence, for example a phone call from a jilted lover. This is unprecedented since Magna Carta. If a person is a prisoner of war, they may not have habeas corpus but they do have rights under the Geneva Convention, but the government is saying they are not prisoners of war.

We have problems of privacy and also basic, core problems with the concepts of the liberty of the individual.

Rep. Bob Barr

Thank you Jerry, and also thank you to the ACLU and people here for their work on issues regarding freedom and privacy. About three years ago, I asked a chairman of a subcommittee to hold a hearing on the right to privacy. But because the word privacy does not appear in the constitution, my chairman said we could not hold a hearing on it. But, even thought the word does not appear literally, it is an extremely important concept on which the constitution and the bill of rights are based. Privacy is one of the keystones of civilization. Ayn Rand has written on this and says the difference between a tribal society and a civilized society is that we as individuals do not live communally and are entitled to privacy, ownership of private property and intangible things like ideas. If you fast forward from the fundamental concept of privacy and private ownership of assets to the eighteenth century, and look at the thinking and wording of the bill of rights, you see that privacy is implicit, subsumed and presumed in the bill of rights. If there is no right to privacy then why would you need a fourth amendment? Why would you want to stop the government from invading your home and your things unless you thought privacy was fundamental? Secondly, the idea of the right to have freedom of thought and speech, keep and bear arms (and you can argue about the extent of that), but the notion implies a fundamental concept of private ownership and access that is protected from the government or the collective body. Therefore, when we talk about privacy, we are talking about one of the most fundamental concepts not just of representative and democratic government but of civilization itself. Privacy is fundamental to freedom.

The concept of information is also extremely important. Just as industrial wealth, military strength etc. were indices of national power in the 19th century, information is an indice of power in this century. Information is power. Access to information, the ability to accumulate information, these allow you to have power and influence events. The ability to protect information and keep it private is a fundamental counterpoint. I really appreciate the work the ACLU and CFP people are doing to protect this information and promote the discussion of how we should protect freedom.

When you look at the legislative process of the Patriot Act, and go back to the Oklahoma City bombing in 1996, then the attacks on 9/11 you see there are immutable laws operating. No matter how much power government has, it always wants more. Secondly, once government takes power or you give power to government, it never gives it back. You rarely if ever get a second bite of the apple so you must get it right in the first place. Privacy is an expendable commodity and there is a limited amount of it out there. When government gets the power to access information, it takes it from one place, the people, taking power over information away from us. Executive branches, republican or democrat, hate oversight and will never voluntarily surrender to it. You have to bring them kicking and screaming but it is essential. Congress has not shown itself willing to do oversight in a meaningful way. Another immutable law is that the Executive Branch never admits error. In all my years I never heard of a federal person coming after a terrible catastrophe and saying we made a mistake and we will do a better job and come back here in 6 months to tell you how. I've yet to hear any witness take that approach. They come forward and say yes there was a problem but it's the fault of Congress because you did not give us more power or money. That almost always happens and it's unfortunate because it never gets to the root of the problem and gives government more power. You never know if the existing power was being used properly and if there really is a basis to give the government more power. A couple of years after the Oklahoma bombing (and that was followed by new legislation) the TWA flight went down over Long Island. Before we even know what had happened, we had people in Congress, on the Sunday talk shows saying it had occurred because insufficient powers to fight terrorism had been given. Thankfully, cooler heads prevailed, but that is the initial reaction we see in almost every instance. Then in 2001, the 9/11 attacks were followed by the Patriot Act. Jerry was kind in saying the proposal was rushed through with very little hearings, in fact the administration wanted there to be no hearings at all. So at least we had some limited opportunity to vet the issues though questions were unanswered and still remain unanswered. We still don't know if the government has been able to absorb the powers and moneys that flowed from it. Now Son of Patriot has been proposed. I direct your attention to the analysis of the leaked draft on the ACLU website. New and frightening questions are raised with respect to surveillance, the Foreign Intelligence Surveillance Act, abilities to consider groups as terrorists when they have nothing to do with terrorism, international or domestic, but that are protesting issues the government doesn't like. We hope CAPPS II will be limited somewhat so it doesn't become a TIA equivalent that peruses all your various types of data before you get on a plane. CAPS II would be very inefficient, costly, and without justification for doing investigations without probable cause. These are not good approaches to fighting terrorism. To prevent this, we need to stay in contact with our congressmen, with organizations like this, to communicate our concern with what is going on. Jerry is a fortunate exception, but most congressmen do not pay attention to these concerns because they are not hearing it from their constituents. I spoke to librarians yesterday to tell them to tell their representatives know of their concerns (and those of library users) about the right to privacy in this context. If representatives hear repeatedly and over a period of time about these issues, we will be able to get hearings and get them to the floor for a vote. But what we have now is a knee jerk reaction and the problems are getting worse and worse rather than resolving the existing problems. Please, don't just work on these issues just during these conferences. It is a constant process of communicating these concerns to representatives so we can get good oversight, good hearings on these issues, on these fundamental issues that are changing the bill of rights and how we operate and perceive ourselves in our society.

Audience – there are concerns that banknotes will be equipped with tracking measures.

Nadler – I haven't heard anything about this.

Barr – I've not heard anything about it.

Audience (rep. from N. Dakota legislature) – I can't imagine measures like what happened in Congress and the Senate on the Patriot Act happening in the N. Dakota legislature. Didn't you object enough?

Nadler – Some of us were screaming at the time. I voted against because of the provisions and the process. The Chair said the ideas had been around for a long time as I said earlier. The rules of the house provide that you can't vote on a bill that hasn't been around for more than 24 hours. But as a matter of practice, every rule I've seen since I've been there is that all points of order against the bill are waived. When I was in the NY legislature, we had a measure that a bill couldn't be voted on in under 3 days unless in case of an emergency. I think we ought to have more iron clad rules. 66 members of the house voted against the bill, some because of the process.

Barr – last year we had a bill related to airport security. While we were waiting for the bill to come to the floor, I noticed a provision that had been added giving airport security personnel the power to arrest. That worried me and we were able to get it taken out, but if we hadn't noticed it at the time, it probably would have gone through. Not only would we have had the problems we've already seen with these personnel but they'd have had the power to arrest people on the spot. It's a problem and both parties to do it.

Nadler – it's not just terrorism related bills. The budget was also put together hastily and with several billion dollars of individual projects. It was a 3000 page bill. A number of provisions for the home district of the ranking member of the Appropriations Committee were left out because a page fell out of the bill on its way to the printers.

Henry Farrell – I am impressed by your commitment to privacy but I didn't hear any mention of the effects of US administration policy, and bills passed in Congress on the privacy of individuals outside the US. I'll give three examples. Europe and Canada have to share airline data without the protections of CAPPSII; the administration has pushed for criminal data sharing without safeguards, and Patriot means that non-US citizens will have to have biometric identification to come into the US. Are you concerned about this at all, or does US lawmakers' concern for privacy and liberty stop at America's borders?

Nadler - Privacy is a fundamental right and applies to persons not citizens. I think I did mention that the bill I proposed on the TIA says you can't do it, period. I thought that the final proposal was a step in the right direction, though the measures are prohibited for Americans but not foreigners. I was not aware of these particular things you just said. Very often we're not aware of the implications, and that's a general problem. If there are problems for people who want to come here but aren't here now, then we don't hear about it. I also said, I think, that I'm opposing a bill that I find obnoxious beyond belief that the US would exercise power in a geographic area (Cuba) but not have to look after rights.

Barr - There are ramifications to your question but things we have to keep in mind. Privacy is worse in countries you mention. Biometrics and video surveillance is worse in the UK. Privacy is a problem everywhere. There are many instances where we ought to be more sensitive and we'll do better on fighting terrorism if we operate in an international context. There ought to be much more coordination and look at what we're imposing on other nations, in terms of developing international protocols, etc. Secondly, I agree with Jerry, privacy is an underpinning of civilization globally and should be looked at in a global context. There are also some things that every nation has a right to do, notwithstanding the fact that other nations may not agree with. And this might have to be done very quickly and implemented very quickly, such as manifests on international passengers into this country. And it might not be appropriate to wait till every country has agreed, for months and months. In terms of long term loaws and regulations, though, it is appropriate that we pay more attention to the international and global ramifications and coordinate with other nations. That will result in better coordination.

Nadler – let me add. The US is at war with terrorism, not just Iraq. The US has a right and duty to protect its citizens. There is no human right to come to the US. We have a right to inspect ships etc. we have to debate openly and clearly how to balance the privacy concerns, not in haste but we do have to address those concerns.

2003-04-04T10:44:00.000-05:00

The Stupid Security Awards

Simon Davies

These awards had their genesis in an encounter I had at Price Waterhouse Coopers. We had to line up, with very rude security guards, who demanded ID and were pretty aggressive. When we passed through, I was given a piece of red paper in plastic, that I could have gotten duplicated at Kinko's. There wasn't any real security; it was just an illusion. And this happened at this hotel as well, where we were asked for a photo ID. Someone asked for a pair of scissors here, and was denied, because they might be a security threat. And a sewing kit would have been a weapon of mass destruction then. So this hotel gets the first honorable mention in the stupid security contest.

Many of these stories fall into several categories.

There were two contenders for most egregiously stupid rose head and shoulders above the rest. A mother was flying Delta from JFK; and had three bottles of breast milk. Security demanded that she drink an entire bottle of her breast milk to show that it wasn't a security threat. This gets the most egregiously stupid award. The second contender regarded a bottle of cologne in Philadelphia. He was asked to show that it wasn't an obnoxious chemical. He tried to demonstrate it by spraying the cologne in the air. Here's where it gets strange. The airport filed a code red hazardous materials alert, bringing haz-mat people in. They brought people to the emergency room, which was quarantined for three hours. Some cops went to a doughnut shop, which was closed for 24 hours. Eventually it was verified that it was cologne, and the Saudi student was released without charge.

The most counter-productive award. Shortly after Richard Reed tried to light his shoes, a passenger was singled out for further examination. He was told to take off his shoes; he did and the security guy slammed them down on the floor. Since they didn’t explode, they were identified as OK.

The most inexplicable security award is for San Francisco general hospital. Because there were so much security hassles at the front door, people started to use the side doors, which were left unguarded as an alternative. So people started to stumble aimlessly around, looking for someone to help them.

The BBC implemented a cosmetic security service – I gave them a bag, and they handed it back. I asked them to check the sideflaps, and my coat; if I was going to be harassed, I wanted to be harassed properly. The security man refused; said that I would be harassing him if he didn't stop.

The most intrusive security search. There is a pattern whereby busty blonde women are being singled out for exceptionally intense searching. But the opposite happens too. In Michigan correctional facilities, they are demanding that any woman entering the prison has to wear a bra. So a woman wrote to a physician, saying that she couldn't wear a bra, but had to see her husband. So the physician asked the prison why the rule was imposed. This woman, after two medical certificates, and a call from a physician, was finally allowed to see her husband. We give them the most intrusive award.

We're getting a lot of nominations from pilots. A BA pilot says that whenever he reports to work, he is searched as rigorously as any passenger. He can't bring a nail clipper, for example. At one airport in Germany, the air crew has to do a semi strip and then get back on a bus. But the bus crew isn't searched; because of a union rule. Once I am on the airplane, I have an axe behind me, which I can easily use to kill the other pilot. Or I could just point the aircraft towards the ground on takeoff, killing everyone on board, if I was too lazy to inflict mayhem with an axe.

There are many of these stories, that we want to publicize. The consequences of confiscating barrels of nail clippers, when they can just walk a few yards to the duty free after the check, and buy new nail clippers. There are hundreds and hundreds of these stories; we will try to put them up on the website. We are not enlightened, but rather terrified. We'd like feedback as to how we can use this to get a reaction from the security industry. We might be able to take legal action against illusory security. We hope that we will have many of these awards in the future.

2003-04-04T10:43:00.000-05:00

Plenary Session 9 – Data retention in Europe and America

This was the session Henry was chairing and Maria was also speaking at. Marco Cappato (member of the European Parliament), Ian Brown (Foundation for Information Policy Research, London), and Cedric Laurent (EPIC). More later …

Gus Hosein (Privacy International, London)

The US cannot fight terrorism alone and is actively seeking the cooperation of other governments. John Ashcroft, the great diplomat, is going around to other countries to gather support, saying the enemy of terrorism is information. Definitions of terrorism differ. Policies differ also, and some countries such as the UK want to lead the world on these issues, for example by being the first to legislate on internet interception and surveillance. The Australians are using the Council of Europe Cybercrime Convention to say they need access to encryption keys even though they're not signatories to the Convention, and the Convention doesn't require it.

The UN, NATO, and the Council of Europe all passed resolutions or similar measures exhorting nations to fight terrorism. The G8, in Canada in 2002, made recommendations based on previous work on counter-terrorism and electronic communications. APEC and the African Union released statements and conventions on combating terrorism. These are not without controversy. ASEAN tried to come up with a treaty, the US was involved in the negotiations; ASEAN countries objected to the US messing around with their countries' sovereignty and the proposal was dropped.

Cooperation is not immediate nor is it easy. For example, Germany initially refused to assist the US in a specific investigation because the suspect might eventually face the death penalty, but later agreed although there had been no material change in the situation. In October, we heard that the EU was negotiating a secret treaty on sharing criminal information, but we haven't heard any more about that. The Germans are now actively assisting the Americans. The Japanese are not cooperating as well, and are refusing to extradite Fujimori, who is a Japanese citizen to face possible charges in Peru. The EU was discussing a definition of terrorism a little while back, that potentially covered protests by globalization protesters and others. Canada had a problem in November 2002 when it was discovered that Hezbollah was not on its list of terrorist organizations. The Foreign Ministry said Hezbollah was a political party in the Lebanon and so should not be on the list. But, a few days later, responding to a newspaper story on the organization promoting terrorism in Israel, Hezbollah was put on the list. However, the statement that Hezbollah had been promoting terrorism was found to have been fabricated by the journalist – nonetheless the organization stayed on the banned list.

The US has to make some unlikely and unpleasant allies. The US recently put several Chechen organizations on its own blacklist, while claiming this was not being done to gain support from the Russians for the war on terror. In Morocco, 3 Saudis were jailed for an Al Qaeda plot for 10 years, despite the fact that their defence argued that the suspects had been tortured. US moves to secretly transfer suspects to countries that practice torture have also been reported.

The situation worldwide is not entirely bleak, there is some hope. For example, a law passed in India on preventing terrorism has been revisited. Sunset clauses in the Canadian law and the Patriot Act are chances to make up for the lack of input into the original legislation.

Different countries are coming up with their own anti-terrorism policies, but there is an underlying pressure from the US driving them and also the international organizations. It is no longer clear cut to see where policy is coming from. The biggest challenge is to see where and when does national deliberation take place. If policies come from abroad, when do we have a chance to influence them?

Tracy Cohen

Starts with the OAU convention on the prevention and combating of terrorism, Algiers 1999. Regional anti-terrorism conventions and agreements started to emerge in Africa in the 1990s. These efforts pre-dated September 11th and are linked to broader African Union goals of developing peace and stability and general economic development. They try to link broad and endemic problems of organized crime (drug trafficking, arms dealing) in the continent to developments on terrorism globally.

The OAU Convention was drafted based on a UN resolution 1373. A plan to operationalise it was drafted in Algiers in 2002. It promotes multi-lateral cooperation between states, forestalls terrorism and provides a framework for cooperation between African countries. States can legislate domestically to implement it and also set up processes to do mutual legal assistance. The definition of a terrorist act is quite wide-ranging and could be used to criminalize legitimate protest. There is an exemption for liberation and self-determination struggles in relation to colonial, occupying or aggressive forces. The Convention came into force at the end of 2002 and its implementation is contemplated in a plan of action also drafted in Algiers in 2002. The plan of action gives more specific steps to be taken – greater border control, prevention of financial crime, and a criminal database, computerized monitory of entry of all individuals, and more.

There are policy issues coming out of this Convention. It will become increasingly difficult to keep domestic laws isolated, and to stop a race towards the bottom from happening. Domestic laws usually have an overall scope that encroach on constitutional rights of speech and association, and often have lower standards of proof. There are implementation issues – for example in border surveillance, where the only country capable of adopting the provisions is South Africa, in the absence of population lists and fully fledged passport systems in most countries. Mutual legal assistance is supposed to be carried out in compliance with national laws, but there are very different notions of what the rule is, between states in Africa, and with states outside Africa. We have to be sure that the rubric of terrorism is not used to extend state power and squash dissent. Mugabe has used the term of terrorism to justify measures against the opposition in Zimbabwe. More hopefully, there is the possibility of some steps to protect human rights.

Toshi Ogura

The definition of terrorism may vary and has different usages. I will speak about the global context of terrorism in Asia and Japan. It is strongly influenced by global measures against terrorism. In October 2001, APEC issued a statement offering support (especially on transport security and financial data) on fighting terrorism. There is also the Council of Europe Convention on Cybercrime and the OECD's work. Based on this international consensus, the Japanese government follows. There is new legislation implementing the Council of Europe convention, with measures on hacking, virus, data preservation and others.

Secondly, there is the human rights aspect and also law enforcement and human trafficking. Human transportation and money transfer are targets for government control. The consequences for human rights are significant. Human trafficking is a disastrous crime, particularly against women and children, and is extremely difficult to deal with. Governments seemed to overlook it. After 9/11, governments including Japan became more involved in human traffic control. 9/11 has been used as a means to strengthen immigration control and the victims of human trafficking have not been helped. The human rights of others which may be violated by the greater controls also need to be considered. The airport security system in Japan needs to be considered. There are two major international frameworks for airport security post 9/11. Based on them, Japan has taken measures and is strengthening control of passports and visas with new legislation. Japan is also introducing APIS, Advanced Passenger Information System, which shares this data between participating governments. CCTVs in airport public areas and check-in procedures have also developed. Face recognition technology has been incorporated into the CCTV system.

I would like to emphasise the human rights aspects in all these issues.

David Banisar

I will summarise anti-terrorism legislative and policy developments in Europe. I live in the UK these days. 'Europe' is a very varied place – 50 countries, 40 languages, countries that have centuries old democracies and others that have been democratic for only a few years. There are also very different legal traditions. Many countries have also had terrorism laws for many years because of existing problems, for example the UK and Germany so this isn't a new phenomenon for them. For some, the laws haven't changed as substantially as in the US with the Patriot Act, and you don't have the same levels of constitutional protection and the Supreme Court to appeal to as in the US. The European Court of Justice has 40 years or so of experience, but not as much as the US Supreme Court. The civil society groups are not as big as in the US, for example the ACLU. The policies are set by Justice and Home Affairs ministries and the European Parliament still does not have as much power as Congress or national parliaments have. There have been new laws in many countries.

In September 2001, the EU decided to move forward on the European Arrest Warrant so that alleged criminals could be moved between states without cumbersome extradition procedures. A shared definition of terrorism was also produced by the EU. Europe also deals with a far greater number of amnesty seekers and refugees than the US and this is a big concern in the UK. Restrictions on banking havens and banking secrecy are under pressure in Switzerland, even though it is not an EU member. Changes in wiretapping laws have occurred, with the continuation of CALEA's influence across Europe. Interception and traffic data seizure have been made easier, with less or no judicial involvement. Switzerland, the UK, France and others have all adopted data retention laws in the last few years, and the EU was pressured to remove protections against data retention last year by the US. In many countries, the law has not changed, but the authority and funding available for agencies fighting terrorism have been increased. We thought we had the cybercrime treaty on the ropes, then September 11th happened and everyone signed within a couple of months. Fortunately, only a tiny number of countries have actually adopted it. On cryptography, sharing of DNA profiles and fingerprints under Schengen, identity cards are being proposed in the UK and Netherlands – many new policies, laws and restrictions.

In the US and Canada, we have seen great government restrictions on government information available. Nonetheless, to finish on a positive note, a dozen countries have adopted freedom of information laws in the last couple of years.

John Wadham, Liberty, UK

The UK has had anti-terrorism laws for some time and they're getting worse. Liberty is the smaller UK version of the ACLU. When we were first set up in 1984, one of our first reports was on anti-terrorism legislation relating to Northern Ireland. The government is trying to consolidate its legislation on anti-terrorism, specifically in the Anti-Terrorism, Crime and Security Act 2001. If people come together to commit criminal damage, they can be labeled as terrorists if their motives are political or religious. People detained for questioning on ordinary decent crimes – murder, rape, etc. – can be detained for 48 hours, while those suspected of terrorism can be held for 7 days without charge. It's a criminal offence not to tell the police. It's a criminal offence if you do not disclose information about money laundering. Once the new provisions came in, we saw new data issues as well as data retention – data sharing between the Inland Revenue and the police. A lot of the legislation's new powers do not specifically relate to terrorism but to crime generally. The legislation is not restricted to data issues, but is also about free speech. The previous legislation banned some political organizations, mainly groups related to political causes outside the UK. But it is even an offence to profess to be a member of a particular political group. So, if I was to say I was a member of Hamas, even if it wasn't true, that would be a crime in the UK. If you organized a meeting for me to come to and profess to be a member of an illegal organization, then you too would be committing a crime. Internment, or detention without trial, is a huge issue.

There are now 13 people who are being detained who were detained in December 2001. They are not only not going to be tried, but the process of their detention and internment means that the information against them is being withheld. These people have been detained for 18 months. That has been justified on the basis that there is an emergency. In October 2000, the UK adopted the European Convention on Human Rights into national law. It's not got the status of the US constitution but it is a good measure. However, the UK opted out of that Convention on the basis that there was an emergency to the life of the nation. The problem for the people who are detained is when will this emergency stop? When will we know that the threat to the nation has finished? Foreign citizens can be detained, not British citizens. The consequences are that people are being detained not for something they have done but for something that some people think they will do. Liberty has challenged this as it is discriminatory to bring in internment powers on the basis of whether you're a foreigner or not. Unfortunately we have lost in the Appeals Court and now it is going to the House of Lords. This is a scar on the constitutional process and on human rights process in the UK.

Q&A
Audience – do you agree with the definition of terrorism being used?

Tracey Cohen – Which definition? The OAU definition was laundered from South Africa to the OAU. I disagree with its use because it will probably be struck down by the courts in South Africa. For example, if the unions have a strike in Johannesburg that disrupts traffic and inadvertently causes damage to property, then they could be called terrorists. This is not likely to stand before the courts.

Toshi Ogura – According to Prime Minster Kozuimi, an individual who planted a bomb is not a terrorist, but others have accused him of being one. The definition of terrorism is subjective so it is very difficult to define.

John Wadham – I'm not sure that I accept that it is necessary to have a definition of terrorism if the consequences are that people involved in offences with political motivations have less rights. This is not just because it seems logical and not discriminatory, but in the UK, we had terrorism legislation for a long time. In the 70-s and 80s people found guilty of terrorism spent 20 years in prison were later found to have been innocent. They didn't have a fair trial, and the rules around their detention and arrest were wrong and resulted in wrong prosecutions. So for these reasons, I have difficulties with the definition of terrorism.

2003-04-03T12:12:00.000-05:00

Our CFP Panel

The panel after lunch on data retention will have both Maria and I presenting; thus we won't be in a position to blog it. Will try to stick up a proper summary at a later stage.

2003-04-03T12:11:00.000-05:00

Plenary Session 8 – The Great Wall of China

Kimberly Heitman

In Australia, the default position is that ISPS must block all content that might be rated as R or X or illegal should be blocked. However a compromise was reached in which the ISPs would make an approved software filter available to users, so that they could block objectionable content. Two years later, it's turned out that users haven't been especially interested in downloading filters, many of which are from the US, and reflect American Bible Belt values. So the Australian government is revisiting the question of supply side filters at the ISP level as an alternative, as the current approach just isn't working. The current Australian government is quite authoritarian, and wants to make ISPs adopt its values and approach. Freedom of expression does not have constitutional protection in Australia, so that the government can determine what kind of Internet access we get to access sites.

One other aspect that is important is the passage of a Cybercrime Bill which requires people to hand over their encryption key on demand. This gets rid of the protection that so many people need around the world.

Ben Edelman, Harvard University Berkman Center

Edelman is looking at the implementation of filtering. Who is filtering, what are they doing, and how are they doing it? Among countries that filter the Internet are China, Saudi Arabia, Vietnam, the United Arab Emirates, Singapore and the US. China perhaps filters millions of sites, Singapore only a couple of hundred, and pretty half heartedly. The US has some filtering at the AG's office. Edelman will concentrate in this talk on China and Saudi Arabia.

What is filtered in Saudi Arabia and China? In Saudi Arabia, 90% of a sample of the top porn sites is blocked. World religions are also blocked, including Islam – according to the Saudi government, you should not get information on religion from the Internet. Finally, there's sensitive political content, such as human rights and Israel.

In China, Western news services are frequently blocked. Political sites, tend to be blocked, and pornography is blocked, but only in a half hearted fashion; Hustler isn't blocked. So it's not as focused as in Saudi Arabia.

The different countries implementing filtering have chosen different technologies. In Saudi Arabia, a cluster of centralized proxy servers are used; in China, it's routers.

There are differences in the granularity of filtering. At the moment, router based blocking is pretty scattershot; groups of web servers are blocked. In the future, more specific blocking may be possible. There are important implications flowing from the kind of filtering used. Proxy servers look at the specific URL, and then decide whether to block it. Router based filtering has to block an entire server; it only looks at IP addresses. In Saudi Arabia, filtering is relatively speaking, more granular; in China less so, because of the technologies chosen.

In Saudi Arabia, there is blocking of certain websites that raised an eyebrow. Religioustolerance.org, the Encyclopedia Britannica's "women" entry and so on. China, in contrast, blocks Blogspot completely, Network Solution's main domain name redirection service and so on; it's much more broad. China is, however, getting more sophisticated.

Kijoong Kim

Speaking about Internet content regulation in South Korea (nb – sound quality is iffy, and non-native English speaker, so that this summary is a little terse and spotty). Broadcasting is still subject to censorship in Korea. As are motion pictures, recorded music, games and so on. There has been a constitutional debate on censorship (described by the speaker in detail). The board of censorship is appointed by the President. The government has sought to extend this system since 1995, based on existing telecommunications law. A board appointed by the ministry has sought the removal of certain content on the Internet, which are considered prurient. There is a blacklist of 140,000 websites abroad that are considered unsuitable. There have been efforts to censor the Internet on the same basis as censorship of communications. The Korean ministry of information and communication proposed a PICS based rating system in 2000, but the proposal was defeated after activists initiated Distributed Denial of Service attics on the MIC website.

Arturo Quirantes

He is talking briefly to the situation regarding Internet content in Spain. Before, when the sky was the limit in the Internet, there were no limits on the Internet; the Internet was seen as a growth industry to be encouraged. Government didn't want to intervene. Now there is a law that is so broad that it covers anything, whether it's to do with the Internet or not. It came in in 2002, and requires web publishers to register sites with the government or pay large fines. If I have a site with a link to harmful content, such as how to make a bomb, I am liable for the consequences. The idea is that it would be in the ISPs interest to police the Internet; otherwise they would be made liable for the consequences. So some ISPs are doing a sort of preemptive censorship. So they say that we are concerned about child pornography, and we have been offering a free Web service, and we are going to shut it down. They are just using the child pornography issue as an excuse; they are in fact shutting down these free services for economic reasons. No-one knows what this law will mean for the Internet in Spain. In Spain, there is the problem of ETA, the Basque terrorist movement, and the political party that is linked to it. The political party has a website, which is banned. But the judge has said that he can't shut it down, but I can prevent most people from accessing it. He has said to the ISPs, "I forbid you to allow your customers to access this domain." Thus, many Spanish people can't access it, because it is blocked. There is a similar situation with Spain's only Basque language newspaper. This also was accused of having links to terrorism, so a judge ordered that it be shut down. This was easy, because the server was located in the newspaper offices. But there were other services hosted on the same server; a free email service, and other Basque language services. We don't know how this case will turn out. This didn't use the new Internet law; this powerful new tool has not yet been used. But even before this law came in, we've seen cases of filtering, censorship and blocking. The government is starting to lose its fear of the Internet, and is beginning to think that it's a place where they can lay their hands on. We can expect many more cases of censorship. The law is a very good tool to use for Internet filtering. And now that all Spanish ISPs are subject to traffic data retention, the threat is greater. We have to rely on telephone company's word that they won't use traffic data for bad purposes; we have no other protection.

Will Doherty, EFF

The Children's Internet Protection Act in the US is familiar to many of you. The ACLU and librarians have challenged the library related part of the law; that's now in front of the Supreme Court. The school related part of the Act hasn't been challenged at all, which means that schools are required to implement flawed software blocking solutions. This is all about sexual issues; not bomb making and the like. There are a host of legal cases that are related to Internet blocking technology.

Blocking technology doesn't work – it blocks lots of material that it shouldn't, and doesn't include a lot of material that it ought to block. They use people to do human review, but they just can't keep up. Software just can't judge the complexity of human language.

What gets blocked? Sometimes it's illegal, obscene, child pornographic and harmful materials. But often it's "controversial" content such as activist groups, gay and lesbian sites and so on. There are alternatives to Internet blocking, such as media education. There are recent developments that are even more disturbing than internet blocking. The Department of Justice has started to seize domain names, as in the iSONews.com case. The DoJ has started to seize sites selling drug paraphernalia, and redirecting the traffic to a Department of Justice web page. We're beginning to see ISP censorship, not government censorship as such. YellowTimes.org lost its ISP, apparently for posting PoW pictures. Al Jazeera had to find a European site after a US provider cancelled service.

How can we circumvent Internet censorship? Representative Christopher Cox proposed the Global Internet Freedom Act to try to break through Chinese censorship; this wasn't apparently intended to apply to libraries in the US. There are hacktivist tools like PeekaBooty etc.

Audience – There is legislation in the pipeline in Australia; how far will the government go in enforcing it?

Panel – You need to have a whole host of regulations accompanying such a law. Once you start to think that the ISP is responsible what the user does, their license becomes dependent on whether they block certain kinds of access, break encryption etc. Once you start down that road, you can't stop.

Audience – We heard two criticisms of filtering. First, that content that is proscribed by the state ought not to be proscribed, and second that technology used to filter will also block access to other kinds of content. Leaving aside the normative questions, in the first type, what can we do to make sure that only the "right" type of content is filtered; that which is intended.

Panel - In terms of just filtering that which is intended to be filtered, I think that transparency is best. Recording what kinds of content is being blocked. I've been suing a filtering company, seeking a declaratory judgment that if I decrypt their list of blocked sites, I can publish it without fear. There's a motion to dismiss being ruled on.

Audience – There are similar laws in Germany to those in Spain, holding the provider liable for blocking the page. This is not transparent, the blacklist will only be given to the provider. We don't know which page will be blocked, and which will not. Filtering does work, when people don't know that it's working

Edelman – When you try to get to a blocked site from China, you get a standard error message, just as if you'd typed in gibberish.

Audience – To what extent have firms colluded with foreign governments in creating these systems.

Panel – The only real evidence I've seen on that was in the fight over Yahoo!'s doing Nazi memorabilia on their auction website. The courts didn't do a good job, but Yahoo! did collaborate with the French government and removed most of the content.

Audience – Regarding Google's action or inaction in China. As far as I know, Google is blameless in China; Google was as surprised as anyone when China banned it. It's China blocking certain searches, not Google.

Audience – Are there any regulations between America and China to prevent information being received?

Edelman – I'm not sure that I understand the question.

2003-04-03T11:00:00.000-05:00

CFP Day II
Henry and I are now on Day II of CFP. Sorry to say we didn’t manage to make all of the early morning session (again). It was on internet architecture and freedom of speech.

Plenary session 7 – human rights and the internet

Dinah PoKempner, Deputy General Counsel at Human Rights Watch

Dinah gave a run down of various dissidents in China, Vietnam and other countries who have been detained because they used the Internet to express crtical views, disseminate information such as a US embassy piece on democracy, or simply email friends in other countries.

While many people prefer to use email to protest these kinds of things, letter-writing is much more effective. In the US, Congressmen take much more notice of hand-written letters, and they also tend to be more timely. Email chains can be hopelessly out of date, still circulating long after the dissident has been released and won a Nobel prize.

Human Rights Watch distributed a piece of paper and an envelope to everyone in the audience, and an information pack on internet dissidents, and urged CFP participants to write to express their concerns. Future updates by email are available from Human Rights Watch

Other relevant organizations Dinah gave links to include;

Bobson Wong, Executive Director, Digital Freedom Network
I will focus not on activism today, but on using the internet for education. We publish articles online, publish internet tools for activists, do online chats with human rights activists and experts, etc.

I will talk about some of the themes and lessons we have learnt. We deal with smaller organizations and lesser known activists. They are very small operations of one or two people without a lot of technological know how. There are a lot of problems for activists, particularly in developing countries, with using the Internet. There is a real need for content management systems for them to get their information up on the internet and archive it. This information is used by journalists and funders in the developed world. They need portable access tools and open source and/or low cost software. But they are not tech savvy so they won’t be able to use Linux etc. Only a tiny minority of human rights activists encrypt their email – cryptography products are difficult to use, especially if they are in English and that’s not the user’s first language.
There needs to be more interaction with the activists and people writing these applications.

Improving cyber-rights is an area of expertise for cyber-rights activists like the CFP crowd, but not for traditional human rights activists. There needs to be more communication between both kinds of activists. In Asia, the issue is not so much internet censorship as internet access. In the US one in two people has internet access, in Africa, it’s one in a hundred and twelve. Access and censorship are two sides of the same coin. If activists had more access to communications technologies, they could get their messages out more effectively. I met an activist from Zimbabwe who does innovative work on internet activism on human rights and she said 'we need technology, not just food.' It’s up to all of us to make sure the technology we use and promote gets to the people who really need it.

Chair – how do we make the connection between the tools and the people who really need to use them? People in the audience with experience or ideas in this area, please participate in the Q&A session. Lack of access to technology will also mean that less developed countries will fall further and further behind.

Elisa Munoz, Director, The Crimes of War Project
The organization was founded by a group of journalists who covered the Balkans over 10 years, got home and felt they had failed. They didn’t know anything about the laws of war so when they reported that, e.g. , a hospital had been blown up, they didn’t say anything about the illegality of that under the Geneva Convention. Putting together a guide for journalists about the laws of war called 'Crimes of War the Public Should Know', they found the source material very dense. After publication, they wanted to continue to get the message across and started the Crimes of War Project at the American University in Washington DC. This project has tried to cover major conflicts since then and now has a website which uses the book as a source to analyse conflicts as they happen. They also organize seminars for journalists around the world and have produced a video. The organization is made up of three people so the website is our primary resource for outreach. The objectives are to provide information, encourage better understanding and appreciation for international law, promote consultation amongst journalists, agencies etc. on increasing compliance with that law, and provide a forum for debate about international law related to conflict situations.

Why is this important? Let’s say you’re a journalist in Iraq and biological weapons are being used, hospitals are being bombed. How do you know what this means in terms of the law and what is legal and illegal? The law is rather complex. Crimes of War tries to bridge this knowledge gap. We have set up a 24 hour hotline for journalists to call us at any time and we get an answer to them from our panel of legal experts within 24 hours. To give an example of current issues, in the last couple of weeks we’ve had allegations of breaches in the laws of war – fake surrenders, wearing of civilian clothes by soldiers, use of women and children, use of illegal combatants, use of hospitals and civilian facilities to launch attacks, killing prisoners of war, blowing up highway bridges, targeting utilities and media outlets, and others. Journalists need to know how to determine the legality of complex and confusing situations quickly. We need to be able to trust that reporting is accurate as the public and also for human rights organizations.

Since access to the conflict is difficult and we’re not big enough to have our own presence, we are trying to make analyses of whether events were legal or illegal depending on legal advice from around the world, not just in the US or based on US military analysis. Some of the opinions we’ve posted include whether or not attacks on Iraqi TV are legitimate, the legality of Iraqi guerilla attacks, and prisoners of war issues. There is great interest in prisoners of war and this is a great contradiction to the fact that there are still hundreds of prisoners of war in Guantanamo. This is striking when the US is demanding that US prisoners of war be released and treated in a certain way. Donald Rumsfeld was talking about the possible use of riot control gas in Iraq – would that be legal? We have published longer essays on the legality of the conflict as a whole, and other pieces such as trying Saddam for war crimes, and the Bush doctrine of pre-emptive strike. We try to provide sensitive coverage on a wide range of issues and be ahead of the curve so that journalists will rely on it to put our analysis into the mainstream press.

We prefer to publish on the web as it’s cheaper and faster. We post a magazine every month and expert analysis on a chosen topic with different views on it. We also post understandable pieces in layman’s terms, and in a readable form for use by journalists.

What has the effect of the war been on our organization? We have many more calls from journalists, much more traffic on our site, and PBS has asked to syndicate some of the pieces on the site. We are providing what we hope is objective analysis of the legality of conflict situations.

Patrick Ball, Deputy Director of the Science and Human Rights Program of the American Association for the Advancement of Science

There are many reasons why it is a pleasure and an honour to be a human rights activist, not least sitting on this inspiring panel. I’m going to do something different and talk about technology for a moment. Think back to CFP 1998 in Austin, when I debated with the DoJ on the use of cryptography by human rights activists for whom it was a matter of life and death. But access is only part of the issue, being able to use cryptography is also important. As a previous speaker showed, actual use of cryptography is quite limited.

Carl Ellison’s law says that the user base for strong cryptography declines by half for every additional keystroke required to make it work (laughter in the audience). We need to think about ways to overcome this limitation. I will talk about projects today that are overcoming this limitation. We need to think of the internet as more than the web, i.e. the virtualization of data and why it is important.

It is an appropriate response to be angry or sad about human rights violations, but to do anything useful, we need information and a sense of the large picture which produces these atrocities. This means having good research. Most people can’t retain that much information so it needs to be written down. One way to do this is to build a structured database. But when the data is in one place, it needs to be protected. In 1998, I only understood part of the threat. I was afraid that someone would come and take the data away from me and be able to use it to share with those whose stories we were writing about. But another 'attack' is far more common – simply losing the data. Even very technologically sophisticated people like this audience do not necessarily have remote back-ups of all their work. Losing the data for human rights activists is a huge risk for activists. How can they report to their donors or continue their advocacy without the data? Back up is also subject to Ellison’s Law – people don’t do it if it requires another step, even if they know that it is literally life and death for them. So we have to build secure, off-site back up that is easy to use. Using free software, this is not that hard to do.

Mark Levine, please put your hand up. The Martis Project software is available free and its aim is to prevent data loss. It looks like Outlook or Eudora and is intuitive to use. It sends and saves the data, in encrypted form, to a remote location over the internet. All you have to do is log in and everything else happens automatically.

The other project is the Guatemala Data Mirror Project, and it is even simpler. It uses the home directory, or ‘my documents’ folder, and everything in there is transparently and securely backed up through a secure shell connection to replicate everything in the directory to a server in the US.

We are moving to simpler and simpler solutions. People can always raise more complex situations that aren’t matched by what we can provide, but we can concentrate our efforts on 80% of the people whose problems we can optimally solve.

Questions and Answers

Audience – I work for German NGO and it is really important to work together on issues such as those we currently face in Germany on freedom of information and censorship, etc. etc.
Bobson – we need to network more. Translation is important.

2003-04-02T18:07:00.000-05:00

Plenary Session 5 – The Patriot II and Electronic Surveillance

David Sobel, General Counsel, Electronic Privacy Information Center

I will look at the situation today and share some of the information EPIC has gotten under the Freedom of Information Act. The first government effort to get a handle on the communications medium was in 1991, a proposal to mandate changes in the technical infrastructure and require communications equipment manufacturers to build government backdoors into encryption systems. The proposal was called S256 and was opposed by technical and industry and didn’t go far in the Senate. It was followed by other measures which were discussed at early CFP conferences. Through the FOI, we found out that ‘Operation Root Canal’, was the then legislated strategy for digital telephony. The president in 1992 approved a course of action to move forward on the digital telephony issue and that success would lock in a major objective, we would have a beach head for the cryptography issue. The Digital Telephony Bill was ultimately successful in 1994 which was enacted as the Communications Assistant for Law Enforcement Act (CALEA) which mandated changes to the communications infrastructure for electronic surveillance. Director Freeh complained that the FBI was being impeded in interception efforts. Much was made of the fact that this would not affect the internet which would be allowed to develop unimpeded. The proposal was said to prevent new technologies stopping the FBI doing the interception it had always been able to do but the internet was not captured for interception purposes.

Pen Register Authority is the authority for the government to get information on who calls who. This is an easy power to get, and requires no real judicial discretion. The Supreme Court held in the 1970s that there is no privacy expectation in this data as it is passed to a third, commercial party and does not pertain to content. In 1999, the FCC issued an order requiring that law enforcement must be required with access to packet mode communications under a pen register order. This meant providing law enforcement with both call identifying information and call content even when there had just been a request by law enforcement for the identifying information. It recommended, though, that the measures for interception under CALEA be examined further. FCC underscored that this was not about the internet. In June 2000, the FBI demonstrated the Carnivore system, a pen register device for the Internet, to the Telecoms Industry Association. Carnivore was to separate the content from the traffic data, and law enforcement rather than the service provider would conduct the filtering. An FBI document conceded that Carnivore captured more information than was intended or necessary. It captured information on innocent subscribers as well as those targeted. In 2001, the Patriot Act codified the FBI practice of conducting pen register surveillance on the internet, raising the packet mode issue and further eroding judicial review. Most recently, IP phone data has been included. The Patriot II proposal notes that communications device manufacturers are increasingly producing devices that have multiple functions. The draft law addresses this by saying that the authority to monitor one function of a device automatically gives the authority to monitor any of its functions. In the course of the last decade, there has been a continued expansion of the scope of powers. We have moved very far away from the assurances the FBI gave Congress in 1994 that the emerging internet would not be affected by the mandate sought.

(This presentation was punctuated by a series of slides showing a series of documents received from the FBI and other agencies under FOI – all were blacked out in whole or in part, underlining Sobel’s point that public and oversight is extremely difficult.)

Kate Martin
The millions of non-citizens who live and work in the US are the most vulnerable. The Foreign Intelligence and Surveillance act, FISA, gives the government the power to conduct surveillance and searches on non-US nationals. The law was first passed in 1978 in response to a case on warrantless domestic spying wiretaps on Americans of the 1940s to the 1970s. In 1972, one of those wiretaps came before the US Supreme Court which said it was unconstitutional but said it did not opine on wiretaps of ‘foreign powers and their agents’. In response to that Supreme Court case, Congress did not authorize wiretapping for domestic security purposes, but only national security wiretaps for ‘agents of a foreign power’ including residents of the US and non-residents acting on behalf of a foreign group, with an indication that that group were engaged in sabotage or some such activity. There are three differences. Firstly, with how the warrant is obtained, the warrants under the FISA are issued under the Foreign Intelligence Surveillance Court. All warrants are issued initially in secret. Proving links to terrorism are fairly similar to probable cause under the criminal code. Individuals are not entitled to know they are under surveillance. The second way is that on the few occasions you may be notified that you are the subject of FISA surveillance is if the government brings a criminal indictment. You will be told you are under FISA surveillance but you will not be given access to the warrant or the fruits of the surveillance. The original intent of the FISA was to give the government an intelligence gathering tool, against the Soviet Union or the PLO, for example. It was not intended as a tool to prosecute individuals or to be used in relation to individuals such as regarding criminal prosecutions. Post 9/11, the government has used FISA not to gather information about Al Qaeda but about individuals. We don’t have full information, but we do know that the FISA surveillance warrants issued doubled during the Clinton era. Most seem to have been targeted against pro-Palestinian activists in the US, or against "radical Muslims," whatever that means, citizens and non-citizens. We see from the very beginning that the other constitutional issue in the FISA is regarding protections based on religious and political activity. But those are the criteria being used – pro-Palestinian and pro-radical Muslim seem to be the criteria being used. FBI is up front about who they are targeting and that it is justified.

The greatest threat is not that there is secret surveillance of individuals without notification, but that the government is using the surveillance to identify and target non-citizens for deportation. They are then picked up on immigration violations. There are over 8 million undocumented workers living and working in this country. They can be arrested in secret, have no right to a court-appointed lawyer or a hearing before a judge, and can be deported from the US. If that is the real use to which FISA is being put, why should the citizen community care? There has been conversation earlier that it will be implied that citizens will be next. There is a more important reason, and it’s an extremely important policy question. When Congress put the brakes on TIA, they drew a line between what is happening to US citizen and others and that line is generally being drawn. The Supreme Court applies to everyone inside the US, not just to citizens. The privacy of anyone is as equally important as anyone else’s. There will be a bill coming to the floor of the Senate in the next few days allowing the government to use surveillance against individuals when there is no evidence of any kind that that individual has any connection to terrorism. The bill will probably pass (only objections were from Kennedy) and this applies to non-citizens but there is another proposal which would apply to everyone. This is the key point.

Ann Beeson

The Patriot Act amends FISA in a number of different ways. It amends the wiretap and secret service provisions. While there are some standards under FISA, they are less onerous than the Fourth Amendment usually requires. Before the Patriot Act, the government had to certify that the key purpose for wiretapping was for foreign intelligence. Under the Patriot Act, the government only has to show that foreign intelligence gathering is a significant purpose. The ACLU and others were worried that this would be used as an end-run around the Fourth Amendment. At the end of August, I found out that the FISA court had made one of its decisions public for the first time, as a result of pressure from the Senate Judiciary Committee, which was worried about abuse. The FISA court revealed that Ashcroft had issued guidelines over this provision in May, and wanted the broadest possible interpretation of this provision. The FISA court rejected this interpretation, and had appealed it. We thought that we could get involved in this litigation, and filed an amicus brief before the FISA court. Because the government had never been turned down in a request for a wiretap, there had never been an opportunity for review. We didn’t even know how to file a brief; we had to call around, and get guidance from the judges on how to file the brief. I got a call in September from someone who called herself her contact with the Secret FISA court; it felt like Deep Throat. We got a decision reversing the court of review, and endorsing this broad interpretation of the Patriot Act. They did say that they were happy to read our brief, even if they completely ignored it. The way that the law is written, if the government’s request for a wiretap is denied, and it goes to the court of review, there is no way to appeal the court’s decision to the Supreme Court. It all seems very problematic from a constitutional point of view, that the Supreme Court can’t be a final arbiter. Some of us got together to file a petition to intervene in the case at the Supreme Court. We didn’t have direct standing; we did it on behalf of the Arab-American Anti-Discrimination Committee, and ACCESS. Many of the members of these groups are being surveilled; the government’s statements make this pretty clear. The FBI was counting mosques, in part to set targets for the number of surveillance orders in a particular area. On behalf of these groups, we filed a petition to intervene; there had been a number of cases where non-parties had filed before. Last week, the Court issued a one-line denial. The only way that this will go up is if FISA evidence is used in criminal proceedings. But only 1% of this data is ever used in a criminal case. There is nothing that the innocent targets can do to challenge the law; the only way we can do it is through a criminal case. We are committed to getting involved in cases, and there are some interesting ones around the country, including this case in FISA. I got a call from the law clerk of the judge in this case, asking for a copy of our petition to intervene.

Shari – Is there any room for optimism after what we’ve heard

David – I don’t think the prospects are particularly good. However, we have seen Congress start to put brakes on some of the proposals. The Homeland Security Act had problems, but contained a provision stopping funding for TIPS. Congress may take a similar approach to CAPPS II. In contrast to the bandwagon that passed the first Patriot Act, Congress is at least willing to ask questions, and put the burden on the executive to justify the powers that they’re asking for. While this hasn’t been extended to FISA, it is promising.
\

? – There is a FISA Overview bill out there, although none of us are very optimistic. But get your Congressman to support it.

Kate – The specter of Big Brother made Congress say no to TIPS. If the community doesn’t come together around the privacy rights of non-citizens, there is no hope. If the privacy coalition is split on this, we’re going to lose. The coalitions have some useful members who are on the right of the political spectrum, who have an anti-immigrant agenda. It’s no small political issue, and we need to grapple with it. We do want to wiretap some people, obviously, and it’s better to wiretap them than to throw them into jail secretly and deport them. But the Fourth Amendment applies to everyone.

David - Kate is right – the power of these measures is focused on certain groups. But the implementation of these powers is not necessarily so limited, as we saw in the Carnivore investigation of the Al Qaeda person. The investigation was targeted on a foreign person, but other people’s emails were led. The implications of applying pen register authority to the Internet are complex. When you applied it to telephony, it wouldn’t implicate anyone else – it would be data about me and my phone number. There was a direct relationship to me and my transactions; I am the locus. When you apply this in a packet-mode environment, suddenly law enforcement gets information related to me, but also about every other user of that system. At this point we have to trust that law enforcement is going to ignore this. We’ve seen that Carnivore doesn’t necessarily succeed in doing that. This requires more public and Congressional oversight, not less. If someone using your ISP is the subject of a pen register, your packets are getting caught up in that as well.

Audience – The danger is that pen registers simply give transaction information on telephony, but on the Internet it gives a whole lot more.

David – packets give the content of the email information as well. It’s a much broader category of information. There’s also the URL issue – it may be true that a domain name - www.epic.org - is the equivalent of the phone number of the EPIC office, but the full URL tells you what specific pages I’ve visited. The FBI has been careful not to say that it won’t look at the specific pages. It’s important to understand that there’s a whole new can of worms when you apply these traditional authorities to a new technical environment.

Audience – Johnson claimed he didn’t want to sign the wiretap law. We didn’t have video-cameras, which captured Timothy McVeigh on his rented van, we didn’t have credit card records. The FBI has new tools – we should ask them why do they need these new tools.

Panelist – The law won’t protect our privacy because the technological possibilities are too great.

Audience – FISA information has been used extra-judicially, as in the couple accused in spying for East Germany. The FBI found that one member of the couple was in an extra-marital affair, and then used the information to get the other member to turn state’s evidence. I’m now involved with another client whose attorney gave a press conference in violation of the applicable rules. The attorney didn’t use this to send secret messages; she’s now being prosecuted by Ashcroft as a major terrorist threat, because this was inconvenient for Egypt, an US client state. There are massive extra-judicial things going on.

Panel – there are all these wiretaps on people speaking Arabic, but no-one who can translate what they’re saying.

Panel – you don’t build a bigger haystack to find a needle; it defies common sense.

Audience – I’m concerned about the citizen/non-citizen distinction in FISA. It’s now being used for Internet communication. The same may happen with FISA – it may start to be used against US citizens too.

Panel- There’s a historical example. Internment in WWII started with Japanese and German agents. But many agents had family, so that it was extended to individuals of Japanese descent more generally.

Panel – FISA has always applied to both citizens and non-citizens. We need to be clear that the primary focus of discrimination is national origin and religion, not whether you’re a citizen or non-citizen.

Stephanie Perrin (audience) – I’m interested in the nexus of the loss of Fourth Amendment rights and free trade. You have thousands of people entering the US to engage in trade; if they use communications here, how much information are they generating. What is the threshold for FISA surveillance – is it enough to be a rabid privacy activist?

Panel – It is not enough. You have to be associated with a group that the US considers to be a pro-terrorist group.

Stephanie – What if you’re a peace activist?

Panel – Maybe if you’re a peace activist associated with a terrorist supporting group.

David Sobel – The FBI has generic warrants following people around. If a person with that warrant comes into this room and uses the wireless network, then the FBI can gather the information.

Audience – Most surveillance of the Internet does not meet the constitutional test.

David – That’s a great argument. Another argument I made against Carnivore is relevant. The FBI would go to the ISP and ask for the information on a person’s account, the ISP said we can’t access to it, so the FBI would then install Carnivore. This means that Carnivore doesn’t meet the test either (complex legal argument that I can’t summarize). Most of us assumed that at this stage there would be some challenge to the application of Carnivore and pen register; someone would have a case. For whatever reason, this hasn’t happened yet. My suspicion is that the defense bar isn’t sufficiently attuned to these issues, and there have been uses of Carnivore that have gone over the heads of defense attorneys, who didn’t realize that there are some interesting issues.

Audience – what about Earthlink?

David – Earthlink was asked to install Carnivore, and tried to fight this, by saying they would be violating the privacy of their other providers. That was the issue that Earthlink raised, and the California Court rejected it. It’s not a criminal case, and was on different issues.

Audience – There is a group called Reclaim the Streets which has no links to foreign groups. But it has been labeled a terrorist organization too.

2003-04-02T15:46:00.000-05:00

Plenary Session 3 – Total Information Awareness

Herb Lin, moderating, draws a distinction between the concept and programme of TIA and raises the general question of the efficacy of massive government information programmes. Databases can have errors which can be propagated across them – how can you cope with this? What is the aim of TIA – to identify suspicious individuals? Track suspicious individuals? How do you identify them – ‘I’ll know it when I see it’? On foreign terrorists – how likely that they’ll be in US databases? There are architecture and design issues – designers saying ‘privacy is a concern that we’ll look after it’, and critics saying ‘don’t do it at all’ don’t really work. We need dialogue on how to get the benefits from the databases while dealing properly with privacy. Citizens are worried about recourse for false positives. How will citizens know if they’ve been incorrectly designated and what recourse will they have? There’s security – databases will be separate but linked, so how do you prevent the compromise of the one creating vulnerabilities for all. I’m excluding the possibility for abuse in this debate – e.g. abuses of political dissidents – because it’s not an interesting debate. Safeguards can be put in (advocates say this) or we ‘don’t have the databases at all’ (critics) . Debate generates into a shouting match on this issue depending on what your initial position is. One way to deal with these questions is informed and independent contributions such as the National Research Council report on cryptography.

This session will have contributors on two sides. Each person will make a 5 minute contribution, followed by questions from the opposite side, a closing 2 minute statement and then q&a from the audience. Advocates go first.

Heather McDonald, Manhattan Institute
Since 9/11, I’ve been puzzled by the reaction on the civil liberties left and the libertarian right to the government’s actions to try to prevent another catastrophic attack. There is not a single change that hasn’t been met by hysterical vociferous opposition. Immigration reform, to prevent more Al Qaeda people coming in, is branded racist . Government information sharing under Foreign Surveillance Intelligence Act is branded unconstitutional. Total Information Awareness that would allow analysis of information to deter attacks before they happen has been represented as the inauguration of a fascist state in America. I could go on with examples, but I will just conclude to say that it looks to me like the opponents of the government on right and left are defending the status quo that led up to 9/11. Why do I call this a knee jerk reaction and not an opposition on its merits? The opposition has been so extreme, hysterical and based on patent falsehoods that it is hard to take it completely seriously. It says that TIA represents the fulfillment of Poindexter’s aim to spy on every American. Well, it’s a DARPA programme which could be handed over to the CIA and FBI – Poindexter will have nothing to do with it. 3 million dossiers on American individuals? Not going to happen. Everything proposed in TIA is currently legal. The government should be allowed to search its own databases. At the moment, we’re looking at dummy data, to see how this would increase the government’s predictive ability. All the data involved is available already. The difficulty is supposedly with government searching its own databases. TIA is aimed at getting over the information sharing problem. We need to apply a balancing test. Every government power has the possibility of abuse. The benefits outweight the costs but in any case we should allow the research to continue to see what are the possibilities of the programme.

Katie Corrigan of the ACLU

It’s difficult to debate a programme that doesn’t exist. The devil is in the details. I am a lawyer and the details are not available. There is the TIA of today, how DARPA currently describes the programme – a computer network to connect the dots and prevent terrorist attacks. There is the TIA of yesterday, as described byPoindexter last summer, is of certain agencies connecting the dots in the transactional space, a world of human beings. Finally, there is the TIA of tomorrow; it will be up to Congress to decide if there will be a TIA at all or some other type of programme with checks and balances. We would like an approach similar to that outlined by Radwanski this morning: effective, minimally intrusive to freedom (if there’s no security there’s no debate and so no reason to have a trade-off of privacy). Poindexter described a worldwide system of legacy databases being connected as if they were a single database. I don’t even know if in the age of distributed databases a single connected database actually makes sense as a term. Finally, the general surveillance concept is a sharp departure from the long standing principle of the right to be let alone unless government has a cause. The Patriot and expected Patriot II Act are undermining the laws that protect our privacy. The FBI criminal database is opting out of requirements to even be accurate.

Michael Scardaville, Heritage Foundation

One thing is clear – new intrusions cause concern on the left and the right. People start talking about slippery slopes and George Orwell. I do not believe the relationship between security and civil liberty is a zero sum game. Better security can improve liberty. We can advance both aims, hand in hand, in a system based on the rule of law. Terrorists operate in the here and now and not somewhere overseas. We face a direct threat to our national security from foreign operatives in our society. Terrorism is not a crime and shouldn’t be treated as such. Technology gives us an advantage on the battlefield and at home. Data mining can be used in a number of ways and situations – it is the use of computers and software to make best use of information separating the useful from the rest. Hospitals use it all the time. Office of Personnel Management uses it on security clearances and it is used to combat fraud. It can offer to the war on terrorism a way to share information, intelligence fusion which is absolutely essential. Now we know the federal government had relevant information on the September 11 attacks but did not share it effectively. Simple information sharing produces results. After the arrest of the Florida professor, the DoJ was able to use information on him. Inhibitions on sharing electronic information will stop intelligence analysts and law enforcement from doing their jobs effectively. We do need to make sure data is not abused, but is used within existing legal and policy guidelines. Eg. If the FBI wants to do a search on commercial information, it needs a subpoena. TIA is not used as a surveillance tool but to share information. TIA won’t stop all future terrorist attacks but will facilitate information sharing. It’s open to use and abuse but this criticism should not be used to immobilize our response to terrorism.

Barbara Simons, ACM

So it should be called a total information access programme. How many people had to hand over personal identification to the hotel last night (everyone in audience raises hands) and how many think this is a useful security measure? (no one raises a hand) Go to www.acm.org/usacm for our experts’ letter to government on the problems with the TIA. The main point in the letter was the database issue. As Bruce Schneier said, sometimes steps to improve security create new security problems. There is an increased risk of compiling many personal records including sensitive information. These databases will be targeted by terrorists and others and are very difficult to secure in cyberspace when they are supposed to be available to different people in government. Recent examples of data base risks involve employees selling data. Risks to data on military personnel are considerable. Fair Information Practices show serious need for oversight and control, especially when information is collected without knowledge or consent. Privacy enhancing technologies cannot protect privacy since surveillance comprises privacy. Citizens cannot verify information about them. False positives will occur in large numbers. Inaccuracy of data bases is a problem. Data mining is a much more ephemeral notion than database querying.

Side A – do you object to government searching its own databases or access to commercial databases? The two Pentagon plane hijackers were on known terrorist watchlists when they got into the country. According to Markle, had even a simple data sharing programme been in place sharing data on credit cards, addresses and frequent flyers, over half of the 9/11 attackers could have been identified. Could you hve objected to that and why?

Katie – you are talking about a list of known terrorists based on foreign terrorists and investigation. This is based on a traditional investigation-based model, i.e. directed searches. A traditional law enforcement paradigm which ACLU doesn’t have a problem with. You are comparing apples and oranges. You are masking what TIA is – it’s not about individualized suspicion but about generalized approaches. You talk about looking through commercial databases as if there’s no problem with that, i.e. through laws.

Side A – you start with known terrorists. So you don’t have an objection to that. But the government has subpoena access to the data that would be available under TIA.

Side B – TIA would do nothing to change current law on privacy. At face value, that sounds good. But when you consider the power of database technology, which Poindexter has described as revolutionary, to create a tip based on a pattern not on individualized suspicion that is very different. The Privacy Act and Fair Information Practices say you should always at least try and get consent, and you should give people some notice. Accuracy is another fair information practice – the NCI data base (the FBI criminal database) has now opted out of this requirement. Moving into the criminal law enforcement context, the government is sucking in more information about people based on weaker laws. That is what Patriot was based on – more information, less oversight by public, press and Congress. So you are creating a black box of information that is more secret and harder to get access.

Side A – you may have information about a terrorist who traveled from a certain place on a certain day and now the government can get that data but it is arduous. But what this would allow is for that process to occur electronically and only see the information that is pulled out on the suspected individual so reducing the amount of information that the federal agencies see. It amazes me that these design issues have not come up at all – what is your view on that? The status quo is ineffective and exposes more information to investigators.

Side B – you are arguing that this would be more effective as a law enforcement tool. Congress took back control over the TIA because they wanted to have the oversight role to be able to ask the question of how effective is the system technology. If there’s a database somewhere and you want to efficiently extract data, why do you need TIA to do it?

Side A – but you want to recognize patterns without necessarily knowing the individual.

Side B – So a fishing expedition? How specifically, where does this information come from? How do you know there is a pattern of terrorist behaviour that exists but you don’t know who does it?

Side A – someone in Afghanistan gave it to you.

Time for Side B questions

Side B – What about the CAPS II programme. TSA itself has been clear that they themselves don’t plan to data mine commercial databases. They’re less clear on what they’ll do inside the government. Intelligence data would feed into the CAPS II data algorithm in real time . So should TIA be linked in that way to CAPS II.

Side A – if technology can be used to implement the CAPS II programme then it should. They’re also being used to develop privacy enhancements and other things.

Side B – since CAPS II will be applied to every airline passenger, and it will rely on information generated by TIA or in the TIA database, should I as an airline passenger classified as a risk get a notice of my risk score and notice of why I was tagged?

Side B – it will be clear to you based on your treatment.

Side A – once I get the sense there is something wrong, should I be allowed to get access to the information being used against me and that is colouring me a terrorist? Should there be an independent judicial review?

Side B – No to full notice and access. Yes to independent rule.

Side A – should Congress have a role in oversight of the CAPS II programme in development and operation?

Side B – depends on what oversight is.

Side A – when we talk about the black box of information of CAPS II, this is not a hypothetical like TIA. These applications are already going on.

Side A – How about surveillance of non US citizens? How do you know who the foreigners are in the databases?

Side B – the Act requires a risk that they be involved in terrorism. The database is not looking at people but characteristics, e.g. people who have bought large quantities of bomb making chemicals and a large truck. Then you would go to a judge and look for an ok for further surveillance.

Side A - Is there a distinction in the data base for non-US? How do you apply the citizenship test if you don’t know who they are?

Side B – There’s a difference between information that goes into the database and information that comes out .

Side A – how do you propose dealing with false positives?

Side B – there are false positives in any system as well as false negatives. You have to put some trust in government officials. And if you don’t trust government officials to fight terrorism then better luck doing it yourselves. The risks associated with false negatives are more significant than false positives.

Side A – false positives don’t just ruin people’s lives but created huge surplus work in screening them out from the true positives.

Side B – there can be no law enforcement system that doesn’t have false positives. It would be great if it was possible but it’s not. There will be leads that don’t pan out, it’s not perfect, but you have to balance false positive versus the risks of not doing anything.

Finally 2 minutes for each side to close.

Side B – what we should be discussing is how these technologies should be used. Reasonable people will disagree. The technology is already here and we have to question how do we want to use it in the future and for the long haul. That requires certain guidelines, and Congressional approval. At the end of the day, this provides a good tool and should not be thrown out because of fears and rhetoric. Every technology and government power has the potential for good and bad. Data mining is not inherently good or bad but has great power. If you try to stop research on whether it would work or not, you are being a Luddite. Given the animosity of the terrorists, especially in the aftermath of the war on Iraq, we have to use every means to prevent another attack. We can craft oversight and sunsetting provisions, but to shut it off at the stage of preliminary research is a mistake. That says that Al Qaeda can use the best technology against us, but we have to use inefficient technologies ourselves. We should have Congressional oversight but it should go ahead.

Side A – I don’t like being labeled as a Luddite as I am actually a computer scientist. Commercial databases are full of errors, the FBI database will be full of errors. Data mining is not the same as using a subpoena. Technology will not answer all the problems. False positives are a huge problem that cannot be wished away. I don’t know of any independent reviews on data mining but I expect it will perform poorly as it’s not a rigorous to begin with. It will not solve all problems. We need an independent review of its effectiveness and effect on society. ACLU has many partners across the spectrum working with us on this. Will CAPS II be effective and worth the money invested?

Audience Q&A

Audience – I was at a similar discussion in the 1960s, same questions over and over. Would you be willing to accept a mandate on privacy measures that you don’t get into this problem again and again?

Side B – I support a continuous process of review on effectiveness. Dept. of Homeland Security now has a privacy officer and an office for civil liberties and civil rights. You can’t fully evaluate this till you know how the technology will work.

Audience – Side A, you talked about this as a departure from individualized suspicion. It’s not. We look for patterns, then for people who match the patterns, and then subpoena information on those people. Your judgements are based onj CAPS and the watchlist not the tools of TIA. It’s clear the commercial world will use these tools so why deny USG the tools?

Side A – disagree with first comparison. When you look at how Poindexter described this before William Safire’s critique. (sorry folks – too much extraneous noise to understand the speaker’s response)

Audience – of my over 100 arrests, when I got my records, they only had 61. How effective will TIA be?

Audience – I do data mining and I’d love to get hold of technology that picks up patterns like you naively think it will. A tiny failure of a single order of magnitude on false positives produces hundreds of thousands of them. Have either of you ever designed a relational database, designed a computer programme or even successfully passed a statistics class? This is just generating work for the FBI that will swamp them.

Side B – no, but the people at DARPA have. The attitude that ‘it’s not even effective so let’s not research it’ is Luddite. There are many possible applications for TIA, so let’s not shut it down.

Side A – I’m not a techie either but there aren’t too many people in Washington who know more than me. So, please, people who do know, I encourage you to join ACM and get involved to keep the level of the debate where it needs to be.

Audience – I’ve done lots of the same things (including living in the same neighbourhood and going to the same places) as the hijackers. I could be a successful find by this programme as a terrorist. Are you prepared for my daughter to have lived her life not attending protests or left wing colleges, living in a way to prevent her coming up in your database?

Side B – that’s your nightmare scenario, here’s mine. Are you prepared to have your daughter attend a college whose nuclear facility is bombed by Al Qaeda? Let’s assume your daughter could be a false positive, but the trade off is that the college could be prevented from being bombed.

2003-04-02T14:09:00.000-05:00

George Radwanski, Federal Privacy Commissioner of Canada

The US and Canada are very close in many ways, but are also very different. This is not to say that Canada is better, but it is different. One difference is in privacy laws

Radwanski is the Privacy Commissioner for Canada - he has responsibilities for both public and private sector. Is a voice for privacy on policy issues. There is no equivalent in the US. Radwanski is talking on behalf of Canada - he isn't able to tell any other country what to do

But in the wake of September 11, privacy has become an international issue. People were outraged by the attacks, and there was a need for security, and to address the psychological side, the crippling fear that people had. And this last is the goal of terrorism, what terrorism wants.

Usually, this is fairly specific, but by all accounts the goals of the current terrorist movement are much broader and diffuse. They want to attack the West; our freedoms and values are precisely the target. When people see what terrorists are capable of, it's easy to lose perspective, and to think that privacy has become a luxury

But this only rewards terrorism, it doesn't diminish it, it doesn't safeguard our lives. We could evacuate high rise towers, close subways and so on, but no reasonable person would advocate this. People would say "sure, we'd be safe, but at the cost of our way of life." I argue that this applies to privacy too. Privacy is a human right, as has been recognized by the UN.

It is at the heart of liberty in a democratic state - if we know that agents of the state may be looking over our shoulder, we are not free. If we don't know who may be taking notes of what we do, maybe misconstruing it, we are not free. It is at the heart of freedom of association, freedom of choice and so on. This is why there is a lack of privacy in so many totalitarian societies. Privacy rights are not a luxury in the current situation, they are what the situation is about.

Every legal encroachment on privacy is a victory for terrorism. It is a cliche to say that if we don't do this or that, the terrorists win, but it is true of privacy. Osama Bin Laden, in a statement a month after the attacks said that freedom and human rights in the US are doomed.

We have to proceed carefully. If all of the initiatives being considered are brought through, privacy will become a distant memory. Our interactions will be systematically recorded, tracked and made available for potential use against us by state agencies. They will know every email, every website we visit; we will have compulsory retinal scans. Our movements in the street will be followed by cameras, facial recognition technology will be used. This may sound alarmist, and I am not predicting that it will all happen, but what is happening right now would have been considered unthinkable in the West a few years ago. Once the precedent is set, other things may follow.

This war is different from others we have endured, the war against terrorism is a war against a phenomenon, not a nation state. Wars against other states are finite; they may drag on, but sooner or later, someone wins, someone loses. The war against terrorism has no possible end, because there is no single, definable end. Any group of individuals willing to commit mayhem in a cause is a group of terrorists. For any group that is defeated, another, or several may spring up. It will never be possible to say that it is won.

This is eerily reminiscent of Orwell's 1984, which takes place against the background of a shadowy war. We are confronted with the prospect of a permanent redefinition of our societies.

I'm not here to argue that privacy is a .. right, and I accept that some privacy invasive measures may be appropriate. In Canada, I have not opposed a single genuine anti-terrorist measure. But our task is to tell the terrorists that we will prevail, and protect with even greater vigor and clarity the rights that are at the heart of our way of life. We must guard against the illusion that wholesale corrosion of privacy is a reasonable way of protecting our security. We must guard against information being gathered for anti-terrorism and being used for other purposes. Finally, we must guard against the eagerness of security services to gather powers for their own convenience.

The proposals out there will make us less safe - who will sift through all of that information. It will divert resources away from more effective ways of fighting terrorism. We must distinguish between information and intelligence; the latter is directed and specific searches for information on terrorism. Perhaps some intrusive measures are justified; but these choices must be made carefully, and calmly on a case by case basis. In Canada, I've argued that any measure must be demonstrably necessary for a specific need, demonstrably likely to make us safer, not just to make us feel safer. It must be proportionate, and it must be clear that no other, less intrusive measure, would work in its stead. This test will allow us to take appropriate security measures without unduly reducing privacy.

Mass information dossiers, biometrics, cameras on every street, won't even begin to meet this test. I can't tell people in another country what to do, but I ask you to look hard at these invasions of privacy, and insist that they are subject to this test of justification. Privacy is international; this is especially true in the US-Canada relationship, where we have so many ties. It has become very convenient for people in Canada who want intrusive measures to claim that they are needed because of US pressure. Of course we want to maintain our ties, but if we want to maintain our relationships, we are being asked to disrupt our privacy rights. I don't think you want this, but globalization, and interconnection are a fact of our lives, and an injustice to one is an injustice to all. Privacy will be weakened in every nation if we do not struggle to protect it internationally. In turbulent times, when fidelity to values seems an extravagance, we live to regret it when we do give in. At the time, a right may seem trivial, but these incremental threats are the ones we must be most vigilant in resisting. Edmund Burke said that the true danger is when freedom is nibbled away. We must ensure that the right to privacy is not nibbled away.

Audience - The test you set out sounds like Canada's more general test for constitutionality under the Charter. How might this apply to private actions, rather than government action - this can be just as dangerous.

Radwanski - we now have a law governing privacy in the privacy sector. One of the features of that law, is that apart from requiring consent, it contains a test that measures must be those that a reasonable person would consider appropriate, even when consent has been given. In this context, the Commissioner applies the reasonable person test. Is it necessary, likely to be effective, proportional, and is there another measure possible that would be less privacy invasive. You wouldn't want to apply it everywhere, but it can be useful.

Audience - How ready is Canadian business to comply with Canada's new privacy legislation, and what impact will this have on US business which has transactions with Canadians

Radwanski - I can't think of good reasons why business would not be ready; my office has been at great pains to raise awareness, and have taken many measures. We will be intensifying our efforts. It's important to emphasize that this legislation is not punitive. The law is not extraterritorial, but any business operating in Canada has to operate by it, regardless of its nationality.

Audience - Was your office consulted on CAPPS II, as the administration claimed.

Radwanski - No, my office was not consulted; the US administration does not consider my authority to be a relevant authority. But notwithstanding the very interesting reaction of European countries to US demands, Canada passed legislation a year ago requiring that airlines provide data to foreign countries that requested it. The US government quite literally told us that our planes would not be allowed to land in the US, or would be subjected to hassle that would make operations impossible. Even I was forced to agree that we had no other choice, but I continue to be deeply concerned by this. It is fair to say that it is not appropriate for this information to be made generally available to law enforcement.

Maria (in audience) - Is the US bringing more general pressures to bear on Canada to invade privacy rights, as is happening in Europe?

Radwanski - That's an excellent question. It's sometimes hard for my office to know what actual American pressures are being brought to bear. For example, there is a decision by our Customs and Records agency to keep information on passengers for six years, and to make it available for an almost unlimited range of government purposes. I am fighting this vigorously, but I was told initially that we had to create this database because of US insistence. I have no way of knowing whether this is true or not, but it is unlikely that the US government would have asked for data to be made available for all these other purposes. Sure there is pressure, but it also sometimes convenient for people to say that we have no other choice. It is certainly a challenge. As on matters, it comes down to pressures to other countries to intrude on basic values and constitutional philosophies, there are times when sovereignty has to be asserted. If you want us to trample on our constitution, and on our citizens' rights and then threaten our trade relations, then what does that tell the world about who you are, and what you want to do?

2003-04-02T11:28:00.000-05:00

LIVE FROM CFP 2003
Henry and I are going to be blogging live (or more or less live) from this year's Computers, Freedom and Privacy conference which is being held in New York. So, to the background music of Leonard Cohen's Everybody Knows (being played during the interval), your intrepid reporter reports....

We got up too late to hear Bruce Schneier but caught the second session, a very timely effort to put the current terrorism-related assault on civil liberties into its historical context. First up was Ira Glasser former exec director of the ACLU gave several US examples of episodes when rights were curtailed. (urk more of this later, I'm going to blog the session that's now started first.

Computers freedom and privacy after 2003
Jim Dempsey, Exec. Director of CFP,

Peter Swire, the moderator is speaking about the Patriot Act - surveillance measures were matched by changes to immigration policy. Non-US citizens/legal residents don't have as many rights as US citizens. Immigration is the thin end of the wedge (e.g. measures preventing access to lawyers, not letting anyone know someone's being detained) are the sorts of policies that are tried out first on immigrants. There's lots of scope for coalition between people like the CFP crowed, worried about surveillance, and those lobbying for rights of immigrants.

Anthony Romero (ACLU) The big ACLU problem is how to frame their concerns in the public debate - i.e. to describe what you're fighting 'for' not 'against'. Their campaign is for being 'Safe AND Free', neither is possible without the other. The post 9/11 changes use race and ethnicity as a proxy for suspicion. Initial statements from the White House had been encouraging - e.g. Bush doing pro-Muslim photo opps - and that rhetoric differed from that of FDR during WWII. But the rhetoric rings hollow against the actual policies of the government since.
Examples: US Patriot Act, massive act passed extremely quickly, changed permanently how we treat immigrants and their rights and due process. Mass arrests and detention of more than 1200 immigrants between September and Christmas 2001. After that date, the government refused to give any more numbers detained - initially it had been a move to reassure the public that the government was 'doing something'. ACLU sued for the names of the detainees. Government said this would jeopardise the national interest, ACLU said access and oversight are essential to democracy. 5 - 3000 Arab / Muslim men invited by law enforcement for interrogation. Rule changes from DoJ on all deportation hearings - even family members and congressmen of detainees denied access to the deportation hearings, and the press too. ACLU pressed for public knowledge of the information as paramount with a government which is doing so much and so secretly. Absconders initiative, finger-printing immigrants (of certain countries), FBI counting mosques and muslims, - connect the dots. Government has created a palpable sense of fear and xenophobia which has turned the war on terror into a war on immigrants. The ACLU continues to fight this in the courts.

You can connect more dots on policy - surveillance, TIPS CAPPS II, - the government is assuming much greater surveillance power over Americans. The system of checks and balances (judiciary and executive) is being fundamentally challenged. E.g. the Ashcroft rule that violates attorney client privilege if it is feared that there is a threat of terror. This existed before, but you had to go before a judge and plead probable cause to implement it. Now the judge is bypassed and the Attorney General oversees the procedure - he introduced a rule change to this effect. E.g. the US citizen arrested at Chicago airport as US citizen, who later had his status changed to 'illegal combatent' and detained indefinitely without full access to lawyer. So, US citizen arrested on US soil, not charged with any crime but held indefinitely without access to a lawyer - thAis is what is now possible.

There is a shutting down of dissent and debate post 9/11 - e.g. Michigan student defended by ACLU for wearing anti-war t-shirts, two people expelled from shopping malls for same, permits for anti-war protests and rallies refused all over the country.

If you draw all events and developments together, you see it is the Attorney General who is fundamentally responsible for this climate and these changes. The AG spole to the Senate Judiciary Committee last year for one hour only and basically said - you are with me or against me, and 'those who conjure up the phantom of liberty are against our resolve and give succour to our enemies' (or similar words). There has been a response - a grassroots movement to enact local resolutions and ordinances to protect civil liberties - not just in liberal communities but in 61 jurisdcitions all over the country. For example, there are announcements from local police departments who refuse to become extensions of the INS and FBI and turn on local immigrants. Colleges and universities are refusing to cooperate with the FBI and provide information on foreign students. Local librarians (the heart and soul of the american people) posting signs in their libraries that their reading habits are no longer protected as Ashcroft has the power to monitor what people read. There are fforts in shutting down or putting the brakes on Total Information Awareness and other initiatives, on military tribunals. Some signs of success where the government backtracked. BUT , we need to remain vigilant and CONNECT the initiatives across the different areas. So CFP people need to make the connection between what is happening in the technology sector with what is happening in the Arab immigrants and to muslims.

Nawar Shora, American-Arab Anti Discrimination Committee

Race within a profile or as part of a profile is fine. But race as the defining profile is not. Profiles are often incorrect, e.g. profiles of Washington snipers and the anthrax attacks fingered white males - were incorrect profiles (in DC case) but also were not helpful - it's hard to act immediately on suspicion of white males. Asian or arab communities can be the subject of suspicion. The new system for registering immigrants and residents (non citizens) coming into the US notes 25 countries - 24 are Arab or muslim and the other is N. Korea. People have to go to a local INS office, are detained for many hours, may have to post bond, and very probing and personal questions about individuals, families, religious practices. Border registration also - high risk individuals trying to enter the country have to register. There are some anomalies where US citizens of Arab descent forced to register at the border. Also, there is the Absconders Apprehension Initiative - government went after 6000 illegal immigrants on basis of national origin (tiny proportion of total number of illegal immigrants). Terrorists are evil but not stupid and know to stay outside of the suspect class. FBI has just announced it is interviewing 11000 Iraqi citizens 'for their own protection'. They don't make people aware of their rights to an attorney during these interviews. Each of 56 FBI field offices has been told to count the mosques in its area. In last year, AATC has had a structured and organised series of attacks on its website and email accounts - taking over the email to send out anti-Semitic and Anti-American mails. A number of civil rights groups including ACLU have also faced this. Are working with FBI Cybercrime division to sort itout.
People are making similar mistakes to WWII, where they interned Germans and Japanese. We cannot afford to live in a society of fear.

Jim Dempsey, Exec. Director of CDT,
Let's start with the concept of the trade off between liberty/privacy and security post September 11 - people have automatically leaped to the conclusion that losing some civil liberties will lead to a gain in security. There have been many seminars and newspaper articles on this presumed trade off. We give up things without asking if we will in fact get more security for this surrender of freedom. The trade off is a false metaphor - the trade off was one-sided. Questions of 'will this actually work to increase safety and security' were ruled out of order. On the last day of Senate debate, it was clear that the proponents of the legislation were unclear of what was actually in it. DoJ officials said they couldn't cite any one thing in the new law that could have prevented the attacks, but the law was passed anyway. We can never assume that what the government is proposing will be effective. The first question should be 'how will it work?' and 'will it be effective?'. ACLU work on biometric face identification of video cameras in Florida shows that the police themselves thought the cameras were worthless and had stopped using them.

We need technologically sophisticated people from technology and IT communities to come into the debate and explain how things work. E.g, the work on a letter on data mining and total information awareness. The way we won the crypto wars was when the leading cryptographers and computer security experts in the world came forward and said 'this isn't going to work' - Felten, Schneier et al. We need the same effort here and now on data mining and other IT related proposals coming forward.

On the trade-off question, the guidelines, rules and protections put in place from the 1960s on were not put in place to tie government's hands but because a broadbased surveillance approach did not actually work. Monitoring people on an arbitrary basis was ineffective. Colleen Rawley (FBI whistle blower), last year's Time person of the year, last year wrote a letter about the trade-offs, and how this had prevented effective law enforcement. This year, she wrote another letter that got little publicity, where she said that the vast majority of people detained post 9/11 were not connected to terrorism but that FBI was detaining people for publicity purposes. i.e. publicity driven and not security driven round-ups of people in order to 'do something'. Someone from a law enforcement. We need to keep asking about effectiveness.

Legal rules we have in place for privacy protection just do not work. The most disastrous set of Supreme Court decisions were those in the 1970s that said individuals had no constitutional privacy expectations in information shared with businesses. That doctrine has become the essence or linchpin of today's surveillance and data-gathering activities. Anything not stored on your laptop in your house has no legal expectation of privacy. So dealings with businesses, universities, employers, etc. have no privacy. We need to directly attack this doctrine as Marshall did on the "separate but equal" issue and start to factually and legally take this thinking apart. We have to confront and over turn this doctrine that we have no privacy interests on something in a corporate database.

The role of industry - go back to the Electronic Communications Privacy Act 1986. A coalition of interests said that protection against government surveillance was needed from the corporate and civil liberties standpoint. Since then, this corporate / civil liberties alliance has been seriously degraded. Industry is happy with privacy invasive stuff, so long as it gets immunity from privacy law suits from customers. We need to re-build privacy/industry coalition to show how trust is a critical element of the electronic age.

We are beginning from a situation of asymmetrical power. The AG has little interest in being truthful about what he is seeking in policy initiatives. Patriot Act misleading - we have the burden of being absolutely factually accurate but we can win this on the facts.

Swire - there is a beginning discussion of data mining and CRN - he has been asked by government to get people to talk about limitations of how CRN works - wants people to volunteer.

Audience - The appearance of safety is not safety - but it does address a real social need that people have, and provide benefits, even if it isn't real. Also, cryptography wars were all about a commercial imperative to use cryptography for commercial transactions so they were on our side; but in data mining, they have different interests. So technologists should not be talking about how data mining doesn't work, but instead looking at how data mining techniques can address privacy.

Response - Millions have been spent on programs for safety don't work - that's a real issue. Also, if you feed the American public a false sense of security, when there is a real threat out there, what are you going to do when the second terrorist attack hits? People will say that we haven't given our officials enough power - that's what's happening with the proposals for the Patriot Act II. We're being set up for a bad fall - people will think that they couldn't protect me after they got these enormous powers; we need to give them more. The Justice Department is being pretty opportunistic.

Audience - The immigrant community feel that they are suspect, and Arab/Muslim immigrants won't call 911 or the police when someone breaks into their home because they are afraid they will be taken in for immigration violations or be investigated.

Swire - In the cryptography debate, the corporate interests and civil liberties interests were aligned. But now there are a lot of people looking to make money from applying data mining to counter-terrorism. But the people who are trying to do this do have an obligation to say what they can and cannot do. The alliance that I'm proposing doesn't quite work; so I'm looking for everyone to think about how we can break through. When I called around looking for experts to help me on data mining, I found a lot of people who said "Sorry, I have a contract" or "Sorry, my company has a contract, and I can't help you." We've got to get through that.

Audience - A lot of the proposals that came up in the Patriot Act had been rejected before 9/11. It's hard to talk about civil liberties without talking about what lies behind that - the creation of global empire by the US, and the shredding of civil liberties that goes along with that. Ceding to the government is a bad idea - we will find ourselves talking about what kind of concentration camp is the most effective.

Audience - Thank you for your work on anti-Muslim discrimination. But what about the issues of academic freedom in this case in Florida? When there are professors who use academic freedom and religious freedom to preach to their congregations on the sanctity of what some people call martyrdom, and other people call terrorism. What is the situation of your organization on this - rather than the situations where innocent people are swept up?

ACLU - We should ask what is the climate for people who hold unpopular viewpoints? In some quarters, anti-war statements are incredibly unpopular - I've seen this on my travels around the US when I give talks. Some would say that I'm talking to impressionable audiences and firing them up. We should be careful when we talk about free speech - really this is all about a clash of ideas. We need a robust and full debate with some people expressing ideas we don't agree with; this is important for democracy. In the Florida case, there is a professor with alleged connections to terrorism. Initially, the University sought to censure him for statements. We were very supportive at this stage, because we wanted to make sure that everyone had the ability to speak. When you get to a criminal indictment for supporting a terrorist organization, all of the groups have taken a closer look. But the initial attack on the professor was still reprehensible; they were focusing on his speech, not his conduct. Censorship is like poison gas - you shoot it at the people who you don't want to speak, but then the wind shifts, and the poison gas comes back into your face.

?- The Florida case is difficult, because there is a thin line between free speech and hate speech which incites violence. We are focusing on due process.

Audience - Wiretapping was constitutional until 1968, and it wasn't until then that you had the reasonable expectation of privacy test. Are there any other legal doctrines out there that we can use, or will we have to rely on the reasonable expectation of privacy doctrine. Who is out there working on this?

ACLU - I don't have the answer - I see it standing in the way of what we'd like to do. The current constitutional definition of privacy is a reasonable expectation of privacy one. Partly, this is sociological; the courts have said it is not reasonable for people to expect what numbers you call to be private information. Either we need a new definition, or we need to show that the technology has changed, and that people do have a reasonable expectation on these issues.

Audience - Jim said that we should go back to Marshall on "separate but equal." They started with the easy cases and built up from there. This is what we need (discussion of various cases that we could use). The burden is to figure out what the best cases are, and what the distinctions are so that the courts don't need to fear that every druggy and terrorist can hide behind it. We need to figure where the facts are, and then draw the distinctions - to win the easy cases first.

Swire - Ruth Bader Ginsburg picked cases on sex discrimination where the person being discriminated against was a man, and won those cases, extablishing that gender is a suspect class, and then applied it to women. Picking the cases is important - Marshall used a case regarding an interracial couple to strike down the discrimination laws.

Audience - I was born in Iraq; I'm neither Arab nor Muslim, but I've been detained a dozen times crossing the US border. I talk to them and try to find out about the process; why do they detain the same guy over and over again. I'm told that your criminal record is not available immediately; so they bring you to questioning and check you out in the meantime. I've looked into profiling, and found out that the FBI didn't have profiles before September 11 - the profile is people who had one way tickets, were poor, had a threatening demeanour and wore tatty clothing. We know that didn't work for September 11. It's now male, Muslims, Arabs, people like me who were born in a certain country. But Richard Reed was born in Britain of Jamaican descent. Al Qaida has cells in 40 countries, many of which are non-Arab - think of all the people who don't look like Arabs. There are 1 billion Muslims worldwide, 500 million Muslim males - the people on the FBI target list are roughly 1 in 12 of the worldwide population. That's quite a dragnet. Biometrics and cryptographic signing of that card would make forgery very difficult. If they could keep records that they had identified me and interviewed me already, would that be a good thing, or would it lead to a slippery slope?

Swire - All of these arguments can hoist you on your own petard. California issues 100,000 biometric ID cards every year to the wrong people. And people can then use those cards as they like.

ACLU - The dominant factor is nationality and race - that would be on your card, and they would still stop you.

Audience - I'm on a National Research Council on this - when there are biometrics, you can go around this as the Californian example says. You get a false biometric ID card when you want to - everything else is false, but the biometrics are correct, and you're just fine.

ACLU - On money laundering laws, you start with laws on transactions that are above $10,000, but then people split their transactions, so you have to deal with that, and then people use casino chips. So you create a circle, and the bad guys go half an inch outside that circle, and then you have to expand, so that you get an ever expanding circle of legal control. Bruce Schneier said that money-laundering legislation was a good way to go this morning, so I'm not sure.

Update - correction - Bruce Schneier assures us that he didn't mention his new book even once in his talk, so we've slightly amended the text above accordingly.

2003-03-31T21:07:00.000-05:00

2003-03-31T20:49:00.000-05:00

Kittens

Inspired by Kevin Drum's Friday catblogging, a picture of our two new kittens (as yet unnamed). They're Ocicats - a blend of Siamese, Abyssinian and American Shorthair - which are supposed to look like ocelots, but at the moment just look pretty damn cute. And we've got one of the banes of a cat owner's life sorted out thanks to Charlie Stross, who blogged about a plumbed-in self-cleaning litterbox last year. We're going to have to work on our kitty glamour shots though to beat the competition; via Andrew Northrup comes Rate My Kitten, and what is quite possibly the cutest kitten photo of all time.

2003-03-31T20:16:00.000-05:00

Economics and Development III

Via Julian Sanchez, the website of Very Famous Economist, Xavier Sala-i-Martin, who works on growth and development. This is just awesome - gives me bad ideas for the sorts of nonsense that I too can get up to when I'm tenured ...

2003-03-31T16:43:00.000-05:00

Ivory Towers

Dan Drezner has a long piece on the notorious Columbia teach-in, which rightly slams Nicholas de Genova's stupid and offensive comments. Left jingoism can be just as dumb as its right wing cousin. Dan goes on, however to "raise an eyebrow" at other comments made at the same event, including Ira Katznelson's claim that "this is an administration that mistakes coercive power for consent ... and is willing to flirt with a new form of colonialism." I disagree with Dan - these are defensible and indeed accurate characterizations of US policy at the moment. The administration's shown itself entirely willing to bully and browbeat those who disagree with it into submission; as for the colonialism bit, conservative supporters of the war, like Niall Ferguson happily describe the US as creating a modern version of the British Empire.

2003-03-31T16:30:00.000-05:00

Falsifiable hypotheses

Looks as though I was completely wrong in predicting a surge of support for Chretien last week after the comments of the US ambassador; guess I haven't been around here for long enough to have my finger properly on the pulse of Canadian politics ...

Update: see also Dan Drezner.

2003-03-31T16:23:00.000-05:00

Economics and Development II

As promised last week; a review of Bill Easterly's "The Elusive Quest for Growth." For those of you who don't follow these things, this book has managed to generate a fair bit of controversy. Easterly used to work for the World Bank, and clearly found it a disillusioning process; the first half of "Elusive Quest" excoriates the Bank's development philosophy over the last fifty years. His employers didn't like this very much; Easterly found himself under World Bank investigation for failing to clear publication of a Financial Times op-ed based on the book, and has since left for New York University. As he puts it himself in the paperback edition, he's had to modify his original statement in the hardback edition that "my employer ... the World Bank ... encourages gadflies like me to exercise intellectual freedom" to read "the World Bank ... encourages gadflies like me to find another job."

But what about the book itself? It's pretty damn good so far as it goes, but it doesn't go far enough. It's not hard to see why the World Bank was so upset with him; the first part of the book is a point-by-point demolition of Bank policy. And his criticisms are more troubling than a dozen Seattle-style demonstrations; not only does he show that the Bank has failed in terms of its own objectives (the elimination of poverty); but he demonstrates this from the point of view of basic economic theory. Some of what he has to say is pretty shocking. The World Bank, to adapt Keynes' phrase, is a slave to defunct economists; it's been using completely obsolete - and falsified- theories of the sources of economic growth to make policy prescriptions, and to measure how successful those prescriptions are. It has relied on deeply problematic econometric analyses of convergence of countries over time; Easterly notes the important contribution that economist-blogger Brad de Long has made to this debate. Even when the World Bank has tried to make aid conditional on reform, it's failed pretty miserably, because its threat to withhold loans in the case of bad behavior isn't really credible. Easterly argues that World Bank theory and practice have failed the first, basic test of any economic theory: they make deeply implausible assumptions about people's incentives. Indeed, he shows that officials within the World Bank itself have perverse incentives to keep on lending to countries that fail to use the money properly, so as to make sure that their budgets don't shrink.

At this stage of the book, I was pretty convinced that I knew what was coming next; an account that took the basic insights and assumptions of the New Institutional Economics about institutions, incentives and efficiency, and applied them. I was wrong. Easterly's next move was considerably more unorthodox and interesting; rather than talking immediately about institutions, he starts talking about the burgeoning economic literature on increasing returns. Increasing returns assumptions drive macro-economic work on endogenous growth, as well as a lot of more recent work on technological change, standards and the like. It's also quite controversial among economists, because it implies that individuals may converge on suboptimal outcomes, even when they are aware that a superior outcome is feasible where everyone would be better off. As Easterly makes clear, this literature has quite ambiguous consequences for development policy; it suggests that there are radical indeterminacies in the sources of economic development, that policy will only have limited success in addressing. Societies may find themselves trapped in vicious circles of development through no fault of their own; the expectation of continued underdevelopment may be self-reinforcing. While Easterly provides some suggestions for government policies that may alleviate this problem, his fundamental point is that these prescriptions carry no guarantees.

"Some nations will be poor just because they started off poor or because everyone expects them to be poor ... Even knowing fundamentals like how much moral uprightness, thriftiness, and diligence a given group has, and even if a wise government gives them every incentive to succeed, we do not know what their economic future will look like" (Easterly, p.169, italics in original)

He then goes on to provide more substantive recommendations; which focus less on how actively to create growth, than on how to make sure that governments and other actors don't prevent it. Here, he sets out the usual catalogue of governmental failings in the developing world - lousy policy, corrupt institutions, ethnic divisions - and uses basic economic theory to show how they all create perverse economic incentives. There's nothing very original here, but it's a nice overview of the state of the art. Then, on a slightly tentative note he concludes, by arguing that growth can only work when the incentives for governments, donors, and individuals are right. This is inarguable - and as Easterly says, it's a lot harder to set out the solutions than the problems. Even so, it's hard not to feel a little short changed. After 290 pages of excoriating critique, Easterly devotes a little less than two pages to describing his alternative approach in rather vague and generic terms. That isn't much to go on.

Why does he stop short? Perhaps it's partly because he didn't want to annoy the World Bank too much while he was working there. However, I suspect that his silences reflect deeper problems within the intellectual approach of the New Institutional Economics (NIE).

In many aspects, the NIE is a godsend; it has produced some fascinating work, and has encouraged economists to go out there, and get their hands dirty in the real world again. This is a change for the better; as Ronald Coase has pointedly observed

"Economists, by and large, do not study the workings of the actual economic system. They theorize about it. As Ely Devons, an English economist, once said at a meeting, "If economists wished to study the horse, they wouldn’t go and look at horses. They’d sit in their studies and say to themselves, ‘What would I do if I were a horse?’" And they would soon discover that they would maximize their utilities."

Economists are clearly beginning to come to grips with political institutions. However (and Easterly is no exception) they are doing so in a rather limited (and sometimes self-defeating) way. Economists (like all social scientists) have a professional deformation; in economists' case, it's that they tend to see the world in terms of efficiency. The key insight of the NIE is that markets don't come out of nowhere; they need institutions to support them. But most of the NIE doesn't really take institutions seriously, precisely because it's hung up on efficiency. Either (as in Oliver Williamson's case), it suggests that institutions conduct naturally towards efficiency, or else (as in most of public choice theory), that institutions other than the nightwatchman state are bad, because they involve rent-seeking, and lead inevitably to inefficient outcomes. Neither of these accounts reflects how institutions work in real life, nor yet the rather odd mix of outcomes that they generate. Institutions tend to reflect disparities of power, and the desire of self-interested actors for distributional gains, but, contra public choice theory, they're impossible to get away from. As economic sociologists never tire of pointing out, markets are in fact deeply institutionalized spaces, and have to be, if they're going to work. The libertarian dream of a perfectly free market is a chimera. Perhaps even more importantly for Easterly's arguments, there's good reason to believe that institutions are subject to the same kinds of increasing returns and path dependence as trajectories of innovation. This suggests that institutional engineering isn't just a simple matter of lining up the incentives. It requires complex messing around with people's expectations too. If people accept corruption as a given in their society, they are unlikely to change their individual corrupt practices, even if formal institutions change so as apparently to discourage it. Informal institutions may count for a lot more than formal rules, and may be considerably more difficult to shift.

What does this mean for development economics? It suggests some of the reasons why people like Easterly are at a loss to provide positive rather than negative prescriptions for economic growth. If they really want to progress, they need to examine institutions in their own right, which means looking at politics seriously. The subdiscipline within economics that does this best is economic history; it's no accident that three of the most exciting economists in this area of study are economic historians (Doug North, Avner Greif and Paul David). Further, while incentives are part of the story, people's expectations - which aren't necessarily responsive to overt changes in the incentives that they face - also play a vital role in explaining outcomes. Finally, I think that all of this hints at a possible - and very interesting - convergence between economics, economic sociology and political science. More on this anon ...

2003-03-28T04:51:00.000-05:00

Airline passenger data - the thin end of the wedge

Statewatch reports that the Spanish government is now proposing a Council Directive to require all carriers into and out of the EU to give all passenger information all the time to law enforcement agencies as yet unspecified. Though no doubt the usual bogus and opportunistic arguments about fighting terrorism will be invoked, the Spanish have at least come straight out in the recital to the draft directive and said the measure is to prevent illegal immigration.

The proposal would require airlines to provide, at the time of boarding, information about passengers (passport numbers, names, date and place of birth) to the "authorities responsible for carrying out border checks", a potentially very wide bunch of agencies. Further, carriers would be obliged to report to these 'authorities' within 48 hours if any non-EU nationals who have not returned to their country of origin or gone on to a third country. This reporting obligation is so broad and logistically impossible to meet, and downright illogical, it boggles the mind. I won't even go into the practical problems with it - anyone who's ever been on a plane can see at least a half a dozen reasons why such a system would continually throw up 'false positives' in the search for illegal immigrants. And of course the idea that various agencies should get their hands on everyone's travel plans in order to try and stop some non-Europeans from absconding, makes me wonder why anyone ever bothered to put the word 'proportionate' in to the European Convention on Human Rights.

The article on how and what the carriers are expected to do is amazingly brief - smacks of legislation scribbled on the back of a napkin - but the one on sanctions for carriers who fail to comply is very long, very detailed, and very tough. It even details the minimum fines for non-compliant carriers and goes on to endorse other sanctions such as "immobilisation, seizure and confiscation of the means of transport or temporary suspension or withdrawal of the operating licence". The next article says the information will only be used for border checks and will be deleted straight after - why do I not believe a word of this? Does anyone think national law enforcement agencies and Europol won't use their familiar arguments (well, you're retaining the data already, so why don't you just hand it over to us? we're the good guys.) to pool the data and engage in fishing expeditions?

Anyway, I'm afraid outrage has been drowned out by cynicism, so just a couple of observations:

- Private companies are once more to be strong-armed into policing an unwitting public. Henry has more analysis of this phenomenon which he'll be sharing at CFP next week.
- It's curious that the two EU member states most emphatically supporting the US invasion of Iraq (i.e. UK and Spain) are also the same two who are pushing hardest for carrier passenger data to be retained. Some plausible factors here - the law and order brigade tend to go hand in hand with the hawks so it's unsurprising that a government favouring the latter is also pushing for the former. Secondly, European passenger data access is being pushed hardest by the US, so it's no surprise that the US' biggest allies in the EU are rowing in behind. Thirdly, stir in the usual opportunism - the Spanish are hoping to catch a free ride on the fact that we have to make this data available to the US, so why not use it to round up some cheeky North Africans as well.
- funny too, that the Commission's rather feeble defense of having entered a probably unlawful agreement with US customs in February was that the US threatened to stop EU carriers from flying is employed by the Spanish as their own means of coercion. This is the same threat the Spanish propose to use to enforce EU carriers within the EU.

I presume the proposal is being mooted as a Council Directive because the carriers don't fall under the Third Pillar. Otherwise we'd have seen a short, sharp shock of a Council Frameworkd Decision being imposed without any input from the Parliament or oversight of the Court of Justice. I just hope that the Parliament manages to bottle and keep some of the righteous anger expressed earlier this week and use it when/if the time comes to give its views of this draft Directive. The Parliament has been a lot of mouth and not too much mettle on personal data issues - let's hope their courage is made of something more substantial than hot air.

2003-03-27T18:18:00.000-05:00

light blogging

Am heading to the EU Studies Association conference in Nashville for 3 days, so blogging will be light, and dependent on me finding someplace I can plug my laptop into. Depending on the latter, hope to get my post on Easterly's book up soon.

2003-03-27T15:57:00.000-05:00

The Maple Leaf State

More reactions from the blogosphere to the US-Canada spat. As mentioned yesterday, Dan Drezner has a long, useful analysis of precisely why the US ambassador's speech was so dumb; Kevin Drum, Matthew Yglesias, Jacob Levy and Josh Marshall concur. But the counterstrike has commenced ... Jacob reports a torrent of aggrieved emails from pro-US Canadians this morning. Dan Simon sez that this is all a storm in a teacup; the US and Canada are old friends, and the ambassador was trying to point up Canada's laxness on security issues rather than threatening trade reprisals as such. Dan has some reasonable points, but I think he's wrong on the main one - I think that the ambassador was making a veiled threat. I'm also not so sure that this is a spat between old friends either; Pedantry has a great post on the history of US-Canada relations, which he describes as being less "close friendship" than "intermittently acrimonious, like two neighbours who don't really see eye-to-eye very often, but have to live next to each other and usually try to remain civil about it." Sounds about right to me.

2003-03-26T13:46:00.000-05:00

Canadian Bacon and US Ham-Handedness

Interesting story in the Globe and Mail today; the US administration is putting Canada in the diplomatic deep-freeze for not rowing in behind it on Iraq. The US ambassador says there is "a lot of disappointment in Washington and a lot of people are upset," and hints that the US will retaliate for Canada's refusal to go in without UN approval by cutting cross-border trade. The Globe and Mail quotes a UBC political scientist, who describes this as "part of an orchestrated campaign of intimidation coming straight out of the White House." Just like in Mexico and Turkey then. I simply don't understand US policy towards its allies these days; it doesn't make sense on its own terms. Does the administration really think that bluster and threats are going to make its allies more likely to support US policy? Not bloody likely. I predict an immediate surge in Chretien's popularity; anti-American feeling is running pretty high up here, and isn't going to be soothed any by these latest pronouncements. People like Mulroney, who've been peddling a more pro-US line, haven't been getting much of a hearing; they're likely to get even less of one now.

Update: Dan Drezner has more to say on this.
Update2: As has Kevin Drum

2003-03-25T23:56:00.000-05:00

Little, Big

Via Locus Online, a very nice Boston Review article by James Hynes, who's written some spiffy fiction himself, on John Crowley. For those who have no idea of who John Crowley is (most of the otherwise-civilized world, I suspect), he's the author of a series of acclaimed but poorly selling novels stranded on the borderline between science fiction, fantasy and literature. His best novel is "Little, Big" - which is just extraordinary - it's the sort of book that you buy in batches of five or six whenever it's reissued, to press upon unsuspecting friends. "Little, Big" has gotten phenomenal write-ups from literary heavy hitters. Harold Bloom describes it as quite simply being his favorite novel of all time. Pulitzer prize winning Washington Post books editor, Michael Dirda thinks that it's a serious candidate for Great American Novel of the last thirty years. But outside the sf/f world, no-one else much has heard of it. Why? Hynes thinks, and he's mostly right, that it's because the fantasy/science fiction genre is still faintly disreputable. Some writers have managed to escape - Kurt Vonnegut, and more recently Jonathan Lethem come to mind - both of them are pretty widely read by people who don't think of themselves as genre readers. But they appeal to a different audience - their air of raffish genre disreputability means that they sell in truckloads to hip college students. Crowley, whatever else he has going for him, isn't hip. He's elegaic, melancholy, but with a surprisingly sharp edge. The theme that he returns to time and again is that there was once a time when a Golden Age was possible (or at least when we thought that a Golden Age was possible), but it has slipped away; it's irrecoverable. And how that bites. I recommend everyone and anyone to read him; there's a criminally expensive paperback import of Little, Big available on Amazon that I refuse to link to; it's much cheaper in the UK. He also has an extraordinary non-genre short story in the most recent issue of Conjunctions; "The Girlhood of Shakespeare's Heroines."

2003-03-25T08:33:00.000-05:00

Anywhere but here

Well, two of the participants in next week's CFP panel on traffic data retention are in Brussels this morning, at a seminar being held by the Citizens' Freedoms & Rights, Justice & Home Affairs Committee. Cedric Laurent of EPIC will be speaking, and I can only presume that Marco Cappato, who's the Committee's point person on electronic surveillance, will also be in the building.

The seminar is called "Data protection after September 11, 2001: what strategy for Europe ?". It's a public seminar, but I didn't hear anything about it till yesterday, so I wonder how quickly it was put together and how many actual members of the public will be able to attend. It looks like an outpouring of criticism for the total disdain that the Third Pillar has for the European data protection regime. Many of the issues I've moaned about on this blog will be dealt with; information-sharing by EUROPOL, airline passenger data, delegating of tricky public policy issues to private actors, Third Pillar powers, etc. The programme asks if we will have to wait for the new treaty (which is still being negotiated) to be up and running before we can hope for any coherence on data protection in the Third Pillar and any clarification as to the Commission's role and competence in security issues.

I wish I was there finding out what's happening, and not stuck in an office waiting for email circulars to tell me 3rd hand. The usual suspects will probably say the usual things, but there's an intriguing reference to a German data protection proposal relating to security that I'd love to hear more about. One things the Germans are good at and that's data protection.

I'm in a pretty cynical mood anyway, but I don't have much hope that the seminar will do anything, except maybe keep the issue in the public eye and rake EUROPOL over the coals a bit. It looks like the chair of the Article 29 Working Party (the statutory committee of European data protection authorities) will be making most of the running. And for this self-referential crowd to make any criticism of the untransparent and unaccountable working methods in the Third Pillar..... Let's just say; pot, kettle, black.

Anyway, we should hear all about it next week at CFP.

2003-03-24T23:04:00.000-05:00

Strangeways Here We Come

I'm in the final throes of putting together our panel for CFP, and have had difficulties in communicating with one of the participants, Italian Radical MEP, Marco Cappato, who's been the main man leading the European Parliament charge against data retention. I found out why today; turns out that he just spent a week in chokey after toking up to protest Britain's drug laws. I never thought that conference organizing would be like this ...

2003-03-24T20:17:00.000-05:00

Economics and development

I've been reading two interesting books over the last couple of weeks; both about economics and development, neither of which was quite what I was expecting. They're Hernando de Soto's The Mystery of Capital, and Bill Easterly's The Elusive Quest for Growth. I'm half-inclined to do some sort of extended book-review of the two for one of the left-of-center policy journals, but wanted to jot down some ideas while they were fresh in my mind. Both books are interesting as representatives of a third generation of the new institutional economics. They build on Coase's initial insights, as well as the efforts of North, Williamson, and others to apply transaction cost theory to economic and political institutions, but have their own new - and intriguing - insights to offer. I note for the record that my academic crowd has a somewhat different take on all of this. It sees economies as fundamentally political, and driven by inequalities of power and the desire of self-interested actors to maximize their distributional gains. Doug North sometimes veers into this kind of analysis, but with embarrassed qualifications and hedging.

I'll start with De Soto, who has been getting a lot of attention recently, including a rave write-up in the Economist (I hope to blog about Easterly's book in the next day or two). Many interesting things in this book; and I have to admit that I'm impressed with anyone who can write big approving chunks about Marx, and still get enthusiastic back cover blurbs from Milton Friedman and Margaret Thatcher. Some annoyances too; the book is written in a faux-populist style which sometimes allows De Soto to glide over awkward facts. "The Mysteries of Capital" starts from Coase's basic argument that well specified property rights are all you need for to get to Pareto efficient outcomes in the absence of transaction costs, and radicalizes it. Coase is interested in static efficiency (and in showing the importance of transaction costs for real world economies; his key article is commonly misinterpreted). De Soto argues that well specified property rights are the underpinning for dynamic gains as well. His key claim: that the poor of the Third World are so poor because their informal property rights cannot be turned into capital. In the absence of well defined property rights that are fungible and protected by law, the poor can't use their property to obtain credit, or to produce surplus value. This leads, to what he describes in a lapidary phrase as "bell jar" economies in the developing world, in which the vast majority of the population operates extralegally, and is subject to exploitation, while a small, rich minority works within a bell jar of Western-style formal institutions. Further, certain social groups (lawyers, and petty civil servants), have an interest in keeping things the way they are. De Soto argues that the West's historical success can in large part be traced back to the successful transformation of informal property right regimes into nationally standardized formal ones. He goes on to provide a set of policy prescriptions to the effect that the developing world should do the same.

This is an important book. De Soto has done a lot of interesting research, and it shows (although the academic in me wishes that he presented it in a more rigorous fashion). And his arguments blaze the trail for an important new agenda for policy and research. However, he glides over several problematic facts for his thesis, two of which I want to highlight. First, he suggests that the way forward is to take existing informal structures of property rights, and to give them formal legal recognition. This is potentially problematic, unless you're a gung-ho Hayekian, who believes that spontaneous orders tend towards socially optimal outcomes. As De Soto implicitly acknowledges, informal institutions are very often based on deeply unfair divisions of property, in which marginal social groups do badly. Thus, in De Soto's account of the creation of informal property rights in 19th century America, it's clear that there were real losers: Native Americans, who were systematically excluded from the emerging informal systems of property allocation. When informal property rights were recognized by the US administration, it cemented these divisions. This is important, if you want to argue, as De Soto does, that your system will ease inequalities and lead to greater social stability. In some cases, the formalization of informal property rights is going to set inequalities in concrete; we have to be pretty careful in applying De Soto's prescriptions in a one size fits all manner. Specifically, I think we have to pay much more attention to power inequalities than De Soto does; they aren't merely a product of the gap between informal and formal property rights, and will have real consequences for political stability and social welfare.

Second, the fungibility of property rights is a lot more complicated in its effects than De Soto would have it (nb: for those who prefer their English plain, fungibility means exchangeability). De Soto uses the term for the degree to which property rights can be exchanged between individuals, something which is important to capital formation. As De Soto argues, it's pretty hard to get a bank to give you a mortgage or secured loan on your house, if your house can't be bought and sold on the open market. But there's a downside to fungibility which De Soto doesn't talk about. In many situations (including the quasi-formal schemes that De Soto talks about in 19th century America), fungibility was pretty limited; property could only be exchanged among a small community of individuals, who knew each other quite well, and could sanction each other easily. As De Soto says, these schemes mostly gave way over time to nationally based markets. However, his more or less explicit argument that the latter are always more efficient than the former is open to contention. Localized arrangements in which property can only be exchanged among a limited group of individuals have important economic advantages, which can in some cases trump the advantages of open markets.

Or at least, that's the main conclusion of an important body of research on common pool resources, pioneered by Lin Ostrom at the University of Indiana. Ostrom has amassed an extraordinary database on thousands of common pool resources (forests, rivers, dams and the like) across the world, and comes to some counter-intuitive conclusions. The traditional argument has been that collective pool resources either need to be governed by hierarchy (government), or privatized; otherwise they're subject to the tragedy of the commons, in which everyone has an incentive to overuse the resource in question. Ostrom shows that these claims just aren't supported by the empirical record. There are multitudes of empirical cases of common pool resources that are managed rather well by local communities. Thus, in some circumstances, "limited" and informal schemes of collective property management are better than formal, impersonal markets based on the exchange of private property. Ostrom's argument is too complex to be summarized easily; its main point is that collective overuse problems are best solved when there exists a relatively coherent community of individuals who know each other, and who have created a set of local rules to govern resource use that they can themselves enforce. The creation of truly national markets, and genuinely fungible property is likely to undermine these conditions; markets prize impersonality over personal identity, with unfortunate consequences for the enforceability of community rules, and thus for the management of common resources. (I note, however, an important qualification to my argument: many of these informal arrangements will be subject to the egalitarian critique that I've already outlined).

This suggests, I think that De Soto's one-size-fits-all prescription for economic development needs to be qualified in two important ways. First, before formalizing informal property rights, you should examine whether these informal rights themselves involve a highly unequal distribution of property. Otherwise, you run the risk of perpetuating inequalities that are not only bad in themselves, but are likely to undermine social cohesion over the long run. Second, it may not always be a good idea to make property rights fully exchangeable on impersonal national (or international) markets. This undermines local community rules and institutions that may sometimes allow for more efficient management of common resources than private property based schemes.

2003-03-23T23:58:00.000-05:00

And the award ...

For Best Non-Supporting Director goes to Pedro Almovadar. After bluster and sermonizing from Michael Moore, and a standard anti-war spiel from the bloke in Y Tu Mama Tambien (whose name I can't remember), Almovadar gave a model speech opposing war in Iraq; quiet, understated, and compelling. Like Calpundit and Patrick Nielsen Hayden, I'm sorta pleased in the abstract that the Academy gave the award to Moore; it did poke a finger in the eye of gung-ho conservatives. But I just wish that the North American left had had a better representative last night than a self-promoting, self-satisfied idiot who seemed much more interested in grandstanding than in convincing the unconvinced. It would have been great if Susan Sarandon had had the opportunity to give a proper speech, or Tim Robbins. I think this goes to the heart of what Timothy Burke and to hammer home its sense of innate moral superiority. This isn't going to win people over in the longer war - to make sure that Iraq isn't just the first in a series of neo-con adventures abroad, and to stop the administration from messing up the peace.

(note) - I've added on a big chunk to this post, which last night consisted only of the first two sentences.

Update: Via the Volokhs, this Time article which makes the same basic point.

2003-03-23T20:21:00.000-05:00

elsewhere on the web ...

Via Chris Bertram, two good links.
Item (1) - a good article by Brendan O'Leary, who recently left LSE for an endowed professorship in Penn.
Item (2) - a new political theory blogger, with an interesting series of posts on why the left is losing on the battleground of ideas. Good stuff.

2003-03-23T20:13:00.000-05:00

Eminent Victorians

Am reading A.N. Wilson's "The Victorians" in bits and pieces at the moment, and came across a quote about 19th century Britain with considerable contemporary relevance. "Meanwhile, disguising beneath a genuine moral self-belief the venality of their commercial interests, the British took on the role of global policemen." (p. 52) Wilson is talking about Britons' opposition to slavery, which dovetailed quite nicely with British interests in the sugar trade. A nice illustration of how moral fervour and commercial self interest can batten on each other.

2003-03-22T00:22:00.000-05:00

Questions and Answers

Good news for William Sjostrom, even if he's naturally a bit nervous about it; he'll be one of the guests on Irish TV's main political discussion show, "Questions and Answers." People familiar with the BBC's "Question Time" should have a good idea of what's involved - it's four talking heads, politicians and pundits of one variety or another, sounding off in response to questions from members of the audience. It's a slightly artificial format, but works pretty well when you have good people on it. It's also pretty high profile in the (admittedly small) world of Irish public discussion. RTE, the TV station in question, streams the show - so interested parties in the US and elsewhere should be able to see Dr. Sjostrom in action on the WWW. And good luck to him.