20120614

Why Elites Fail

Christopher Hayes|

In 1990, at the age of 11, I stood in a line of sixth graders outside an imposing converted armory on Manhattan’s Upper East Side, nervously anticipating a test that would change my life. I was hoping to gain entrance to Hunter College High School, a public magnet school that runs from grades seven through twelve and admits students from all five boroughs. Each year, between 3,000 and 4,000 students citywide score high enough on their fifth-grade standardized tests to qualify to take Hunter’s entrance exam in the sixth grade; ultimately, only 185 will be offered admission. (About forty-five students, all from Manhattan, test into Hunter Elementary School in the first grade and automatically gain entrance to the high school.)

I was one of the lucky ones who made it through, and my experience there transformed me. It was at Hunter that I absorbed the open-minded, self-assured cosmopolitanism that is the guiding ethos of the current American ruling class. What animates the school is a collective delight in the talent and energy of its students and a general feeling of earned superiority. In 1982 a Hunter alumnus profiled the school in a New York magazine article called “The Joyful Elite” and identified its “most singular trait” as the “exuberantly smug loyalty of its students.”

That loyalty emanates from the deeply held conviction that Hunter embodies the meritocratic ideal as much as any institution in the country. Unlike elite colleges, which use all kinds of subjective measures—recommendations, résumés, writing samples, parental legacies and interviews—in deciding who gains admittance, entrance to Hunter rests on a single “objective” measure: one three-hour test. If you clear the bar, you’re in; if not, you’re out. There are no legacy admissions, and there are no strings to pull for the well-connected. If Michael Bloomberg’s daughter took the test and didn’t pass, she wouldn’t get in. There are only a handful of institutions left in the country about which this can be said.

Because it is public and free, the school pulls kids from all over the city, many of whom are first-generation Americans, the children of immigrant strivers from Korea, Russia and Pakistan. Half the students have at least one parent born outside the United States. For all these reasons Hunter is, in its own imagination, a place where anyone with drive and brains can be catapulted from the anonymity of working-class outer-borough neighborhoods to the inner sanctum of the American elite. “I came from a family where nobody went to college. We lived up in Washington Heights. We had no money,” says Jennifer Raab, who as president of CUNY’s Hunter College oversees the high school as well. “It was incredibly empowering.” When she surveys the student body, “it gets me very sappy about the American dream. It really can come true. These kids are getting an education that is unparalleled, and it’s not about where they come from or who they are.”

But the problem with my alma mater is that over time, the mechanisms of meritocracy have broken down. In 1995, when I was a student at Hunter, the student body was 12 percent black and 6 percent Hispanic. Not coincidentally, there was no test-prep industry for the Hunter entrance exam. That’s no longer the case. Now, so-called cram schools like Elite Academy in Queens can charge thousands of dollars for after-school and weekend courses where sixth graders memorize vocabulary words and learn advanced math. Meanwhile, in the wealthier precincts of Manhattan, parents can hire $90-an-hour private tutors for one-on-one sessions with their children.

By 2009, Hunter’s demographics were radically different—just 3 percent black and 1 percent Hispanic, according to the New York Times. With the rise of a sophisticated and expensive test-preparation industry, the means of selecting entrants to Hunter has grown less independent of the social and economic hierarchies in New York at large. The pyramid of merit has come to mirror the pyramid of wealth and cultural capital.

How and why does this happen? I think the best answer comes from the work of a social theorist named Robert Michels, who was occupied with a somewhat parallel problem in the early years of the last century. Born to a wealthy German family, Michels came to adopt the radical socialist politics then sweeping through much of Europe. At first, he joined the Social Democratic Party, but he ultimately came to view it as too bureaucratic to achieve its stated aims. “Our workers’ organization has become an end in itself,” Michels declared, “a machine which is perfected for its own sake and not for the tasks which it could have performed.”

Michels then drifted toward the syndicalists, who eschewed parliamentary elections in favor of mass labor solidarity, general strikes and resistance to the dictatorship of the kaiser. But even among the more militant factions of the German left, Michels encountered the same bureaucratic pathologies that had soured him on the SDP. In his classic book Political Parties, he wondered why the parties of the left, so ideologically committed to democracy and participation, were as oligarchic in their functioning as the self-consciously elitist and aristocratic parties of the right.

Michels’s grim conclusion was that it was impossible for any party, no matter its belief system, to bring about democracy in practice. Oligarchy was inevitable. For any kind of institution with a democratic base to consolidate the legitimacy it needs to exist, it must have an organization that delegates tasks. The rank and file will not have the time, energy, wherewithal or inclination to participate in the many, often minute decisions necessary to keep the institution functioning. In fact, effectiveness, Michels argues convincingly, requires that these tasks be delegated to a small group of people with enough power to make decisions of consequence for the entire membership. Over time, this bureaucracy becomes a kind of permanent, full-time cadre of leadership. “Without wishing it,” Michels says, there grows up a great “gulf which divides the leaders from the masses.” The leaders now control the tools with which to manipulate the opinion of the masses and subvert the organization’s democratic process. “Thus the leaders, who were at first no more than the executive organs of the collective, will soon emancipate themselves from the mass and become independent of its control.”

All this flows inexorably from the nature of organization itself, Michels concludes, and he calls it “The Iron Law of Oligarchy”: “It is organization which gives birth to the dominion of the elected over the electors, of the mandataries over the mandators, of the delegates over the delegators. Who says organization says oligarchy.”

* * *

The dynamic Michels identifies applies, in an analogous way, to our own cherished system of meritocracy. In order for it to live up to its ideals, a meritocracy must comply with two principles. The first is the Principle of Difference, which holds that there is vast differentiation among people in their ability and that we should embrace this natural hierarchy and set ourselves the challenge of matching the hardest-working and most talented to the most difficult, important and remunerative tasks.

The second is the Principle of Mobility. Over time, there must be some continuous, competitive selection process that ensures performance is rewarded and failure punished. That is, the delegation of duties cannot simply be made once and then fixed in place over a career or between generations. People must be able to rise and fall along with their accomplishments and failures. When a slugger loses his swing, he should be benched; when a trader loses money, his bonus should be cut. At the broader social level, we hope that the talented children of the poor will ascend to positions of power and prestige while the mediocre sons of the wealthy will not be charged with life-and-death decisions. Over time, in other words, society will have mechanisms that act as a sort of pump, constantly ensuring that the talented and hard-working are propelled upward, while the mediocre trickle downward.

But this ideal, appealing as it may be, runs up against the reality of what I’ll call the Iron Law of Meritocracy. The Iron Law of Meritocracy states that eventually the inequality produced by a meritocratic system will grow large enough to subvert the mechanisms of mobility. Unequal outcomes make equal opportunity impossible. The Principle of Difference will come to overwhelm the Principle of Mobility. Those who are able to climb up the ladder will find ways to pull it up after them, or to selectively lower it down to allow their friends, allies and kin to scramble up. In other words: “Who says meritocracy says oligarchy.”

Consider, for example, the next “meritocracy” that graduates of Hunter encounter. American universities are the central institution of the modern meritocracy, and yet, as Daniel Golden documents in his devastating book The Price of Admission, atop the ostensibly meritocratic architecture of SATs and high school grades is built an entire tower of preference and subsidy for the privileged:

At least one third of the students at elite universities, and at least half at liberal arts colleges, are flagged for preferential treatment in the admissions process. While minorities make up 10 to 15 percent of a typical student body, affluent whites dominate other preferred groups: recruited athletes (10 to 25 percent of students); alumni children, also known as “legacies” (10 to 25 percent); development cases (2 to 5 percent); children of celebrities and politicians (1 to 2 percent); and children of faculty members (1 to 3 percent).
This doesn’t even count the advantages that wealthy children have in terms of private tutors, test prep, and access to expensive private high schools and college counselors. All together, this layered system of preferences for the children of the privileged amounts to, in Golden’s words, “affirmative action for rich white people.” It is not so much the meritocracy as idealized and celebrated but rather the ancient practice of “elites mastering the art of perpetuating themselves.”

A pure functioning meritocracy would produce a society with growing inequality, but that inequality would come along with a correlated increase in social mobility. As the educational system and business world got better and better at finding inherent merit wherever it lay, you would see the bright kids of the poor boosted to the upper echelons of society, with the untalented progeny of the best and brightest relegated to the bottom of the social pyramid where they belong.

But the Iron Law of Meritocracy makes a different prediction: that societies ordered around the meritocratic ideal will produce inequality without the attendant mobility. Indeed, over time, a society will become more unequal and less mobile as those who ascend its heights create means of preserving and defending their privilege and find ways to pass it on across generations. And this, as it turns out, is a pretty spot-on description of the trajectory of the American economy since the mid-1970s.

* * *

The sharp, continuous rise in inequality is one of the most studied and acknowledged features of the American political economy in the post-Carter age. Paul Krugman calls it “The Great Divergence,” and the economist Emmanuel Saez, who has done the most pioneering work on measuring the phenomenon, has written: “The top 1% income share has increased dramatically in recent decades and reached levels which had not been seen…since before the Great Depression.”

One of the most distinctive aspects of the rise in American inequality over the past three decades is just how concentrated the gains are at the very top. The farther up the income scale you go, the better people are doing: the top 10 percent have done well, but they’ve been outpaced by the top 1 percent, who in turn have seen slower gains than the top 0.1 percent, all of whom have been beaten by the top 0.01 percent. Adjusted for inflation, the top 0.1 percent saw their average annual income rise from just over $1 million in 1974 to $7.1 million in 2007. And things were even better for the top 0.01 percent, who saw their average annual income explode from less than $4 million to $35 million, nearly a ninefold increase.

It is not simply that the rich are getting richer, though that’s certainly true. It is that a smaller and smaller group of über-rich are able to capture a larger and larger share of the fruits of the economy. America now features more inequality than any other industrialized democracy. In its peer group are countries like Argentina and other Latin American nations that once stood as iconic examples of the ways in which the absence of a large middle class presented a roadblock to development and good governance.

So: income inequality has been growing. What about mobility? While it’s much harder to measure, there’s a growing body of evidence that, at the same time income inequality has been growing at an unprecedented rate, social mobility has been declining. In a 2012 speech, Alan Krueger, chair of President Obama’s Council of Economic Advisers, coined the term “The Gatsby Curve” to refer to a chart showing that over the past three decades, “as inequality has increased…year-to-year or generation-to-generation economic mobility has decreased.”

The most comprehensive attempt at divining the long-term trends in social mobility over several generations is presented in “Intergenerational Economic Mobility in the US, 1940 to 2000,” a complex paper by economists Daniel Aaronson and Bhashkar Mazumder of the Federal Reserve Bank of Chicago. After a series of maneuvers that qualify as statistical pyrotechnics, they conclude that “mobility increased from 1950 to 1980 but has declined sharply since 1980. The recent decline in mobility is only partially explained by education.”

Another pair of economists, from the Boston Federal Reserve, analyzed household income data to measure mobility over a period of three decades rather than intergenerational mobility. They found that in the 1970s, 36 percent of families stayed in the same income decile; in the 1980s, that figure was 37 percent; and in the 1990s, it was 40 percent. In other words, over time, a larger share of families were staying within their class through the duration of their lives.

This is evidence that the Iron Law of Meritocracy is, in fact, exerting itself on our social order. And we might ask what a society that has been corrupted entirely by the Iron Law of Meritocracy would look like. It would be a society with extremely high and rising inequality yet little circulation of elites. A society in which the pillar institutions were populated and presided over by a group of hyper-educated, ambitious overachievers who enjoyed tremendous monetary rewards as well as unparalleled political power and prestige, and yet who managed to insulate themselves from sanction, competition and accountability; a group of people who could more or less rest assured that now that they have achieved their status, now that they have scaled to the top of the pyramid, they, their peers and their progeny will stay there.

Such a ruling class would have all the competitive ferocity inculcated by the ceaseless jockeying within the institutions that produce meritocratic elites, but face no actual sanctions for failing at their duties or succumbing to the temptations of corruption. It would reflexively protect its worst members; it would operate with a wide gulf between performance and reward; and it would be shot through with corruption, rule-breaking and self-dealing, as those on top pursued the outsized rewards promised for superstars. In the same way the bailouts combined the worst aspects of capitalism and socialism, such a social order would fuse the worst aspects of meritocracy and bureaucracy.

It would, in other words, look a lot like the American elite in the first years of the twenty-first century.

* * *

Of all the status obsessions that preoccupy our elites, none is quite so prominent as the obsession with smartness. Intelligence is the core value of the meritocracy, one that stretches back to the early years of standardized testing, when the modern-day SAT descended from early IQ tests. To call a member of the elite “brilliant” is to pay that person the highest compliment.

Intelligence is a vitally necessary characteristic for those with powerful positions. But it isn’t just a celebration of smartness that characterizes the culture of meritocracy. It’s something more pernicious: a Cult of Smartness in which intelligence is the chief virtue, along with a conviction that smartness is rankable and that the hierarchy of intelligence, like the hierarchy of wealth, never plateaus. In a society as stratified as our own, this is a seductive conclusion to reach. Since there are people who make $500,000, $5 million and $5 billion all within the same elite, perhaps there are leaps equal to such orders of magnitude in cognitive ability as well.

In Liquidated: An Ethnography of Wall Street, anthropologist Karen Ho shows how the obsession with smartness produces “a meritocratic feedback loop,” in which bankers’ growing influence itself becomes further evidence that they are, in fact, “the smartest.” According to one Morgan Stanley analyst Ho interviewed, those being recruited by the firm “are typically told they will be working with ‘the brightest people in the world. These are the greatest minds of the century.’” Robert Hopkins, a vice president of mergers and acquisitions at Lehman Brothers, tells her of those who inhabit Wall Street: “We are talking about the smartest people in the world. We are! They are the smartest people in the world.”

And just as one would suspect, given the fractal nature of inequality at the top, hovering above those who work at big Wall Street firms is an entire world of hedge-fund hotshots, who see themselves as far smarter than the grunts on Wall Street. “There’s 100 percent no question that most people on Wall Street, even if they have nice credentials, are generally developmentally disabled,” a hedge-fund analyst I’ll call Eli told me, only somewhat jokingly, one night over dinner. Hedge funds, according to Eli and his colleagues, are the real deal; the innermost of inner rings. “I was surrounded my whole life by people who took intelligence very seriously,” Eli told me. “I went to good schools, I worked at places surrounded by smart people. And until now I’ve never been at a place that prides itself on having the smartest people and where it’s actually true.”

That confidence, of course, projects outward, and from it emanates the authority that the financial sector as a whole enjoyed (and in certain circles still enjoys). “At the end of the day,” Eli says with a laugh, “America does what Wall Street tells it to do. And whether that’s because Wall Street knows best, whether Wall Street is intelligently self-dealing, or whether it has no idea and talks out of its ass, that is the culture in America.”

This is the Cult of Smartness at its most pernicious: listen to Wall Street—they’ve got the smartest minds on the planet.

While smartness is necessary for competent elites, it is far from sufficient: wisdom, judgment, empathy and ethical rigor are all as important, even if those traits are far less valued. Indeed, extreme intelligence without these qualities can be extremely destructive. But empathy does not impress the same way smartness does. Smartness dazzles and mesmerizes. More important, it intimidates. When a group of powerful people get together to make a group decision, conflict and argumentation ensue, and more often than not the decision that emerges is that which is articulated most forcefully by those parties perceived to be the “smartest.”

It is under these conditions that destructive intelligence flourishes. Behind many of the Bush administration’s most disastrous and destructive decisions was one man: David Addington, counsel and then chief of staff to Dick Cheney. Addington was called “Cheney’s Cheney” and “the most powerful man you’ve never heard of.” A former Bush White House lawyer told The New Yorker’s Jane Mayer that the administration’s legal framework for the “war on terror”—from indefinite detention, to torture, to rejection of the 1949 Geneva Accords, to denial of habeas corpus—was “all Addington.”

Addington’s defining trait, as portrayed in numerous profiles, is his hard-edged, ideologically focused intelligence. “The boy seemed terribly, terribly bright,” Addington’s high school history teacher told Mayer. “He was scornful of anyone who said anything that was naïve, or less than bright. His sneers were almost palpable.” A US News and World Report profile of Addington observed that “his capacity to absorb complex information is legendary.” Co-workers referred to him as “extremely smart” and “sublimely brilliant.”

What emerges in these accounts is a figure who used his dazzling recall, razor-sharp logical ability and copious knowledge to implacably push administration policy in a rogue direction. Because he knew the law so well, he was able to make legal arguments that, executed by anyone else, would have been regarded as insane. He would edit briefs so that they always reflected a maximalist interpretation of presidential power, and his sheer ferocity and analytic horsepower enabled him to steamroll anyone who raised objections. Pentagon lawyer Richard Schiffrin described Addington’s posture in a meeting just after 9/11 to Mayer this way: “He’d sit, listen, and then say, ‘No, that’s not right.’… He didn’t recognize the wisdom of the other lawyers. He was always right. He didn’t listen. He knew the answers.”

This is a potent articulation of the dark emotional roots of the Cult of Smartness: the desire to differentiate and dominate that the meritocracy encourages. Ironically, in seeking to stand apart, the Cult of Smartness can kill independent thought by subtly training people to defer to others whom one should “take seriously.”

* * *

But fractal inequality doesn’t just produce errors of judgment like those we saw during the run-up to Iraq; it also creates a system of incentives that produces an insidious form of corruption. This corruption isn’t the obvious quid pro quo of the Gilded Age—there are precious few cases of politicians taking satchels of cash in exchange for votes. What’s far more common is what Harvard Law professor Lawrence Lessig calls “institutional corruption,” in which an institution develops an “improper dependency,” one that “conflicts with the dependence intended.”

This kind of corruption is everywhere you look. Consider a doctor who receives gifts and honorariums from a prescription drug company. The doctor insists plausibly that this has no effect on his medical decisions, which remain independent and guided by his training, instincts and the best available data. And he is not lying or being disingenuous when he says this: he absolutely believes it to be the case. But we know from a series of studies that there is a strong correlation between gifts from pharmaceutical companies and doctors’ willingness to prescribe their drugs.

This basic dynamic infects some of our most important institutions. Key to facilitating both the monumental housing bubble and its collapse was the ratings agencies’ habit of giving even extremely leveraged, toxic securities a triple-A rating. The institutional purpose of the rating agencies (and their market purpose as well) is to add value for investors by using their expertise to make judgments about the creditworthiness of securities. Originally, the agencies made their money from the investors themselves, who paid subscription fees in exchange for access to their ratings. But over time the largest agencies shifted to a model in which the banks and financial entities issuing the securities would pay the agencies for a rating. Obviously, these new clients wanted the highest rating possible and often would bring pressure to bear on the agencies to make sure they secured the needed triple A. And so the ratings agencies developed an improper dependence on their clients, one that pulled them away from fulfilling their original institutional purpose of serving investors. They became corrupt, and the result was trillions of dollars in supposedly triple-A securities that became worthless once the housing bubble burst.

We see a similar destructive example of this dynamic at work in two groups we entrusted to guard the public interest when it comes to the economy: federal regulators and elite economists. In a paper about the financial crisis, Rob Johnson and Thomas Ferguson tracked the salary trends for those working in finance and those in the federal agencies tasked with regulating them and found a striking divergence between the two. The authors note:
At some point after incomes in the financial sector took off, lifetime earnings of the regulated far outstripped what any regulator could ever hope to earn. Rising economic inequality was translating into a crippling institutional weakness in regulatory structure. Not surprisingly, as one former member of a U.S. regulatory agency expressed it to us, regulatory agencies turned into barely disguised employment agencies, as staff increasingly focused on making themselves attractive hires to the firms they were supposed to be regulating.
In his film Inside Job, Charles Ferguson documents the insidious ways in which consulting fees and moonlighting gigs with financial companies created systematic conflicts of interest for some of the nation’s most prominent economists. Ferguson’s film parades through a number of the most admired names in the field, from Larry Summers to Martin Feldstein to Frederic Mishkin, who all had lucrative sidelines working for business interests with stakes in their academic work. Mishkin even took $124,000 from the Iceland Chamber of Commerce to write a paper endorsing the country’s economic model, just a few years before it collapsed.

What we are left with is the confusion that arises from an ambiguity of roles: are our regulators attempting to rein in the excesses of those they regulate, or are they auditioning for a lucrative future job? Are economists who publish papers praising financial deregulation giving us an honest assessment of the facts and trends, or courting extremely lucrative consulting fees from banks?

In her book Shadow Elite, about the new global ruling class, Janine Wedel recalls visiting Eastern Europe after the fall of the Berlin Wall and finding the elites she met there—those at the center of building the new capitalist societies—toting an array of business cards that represented their various roles: one for their job as a member of parliament, another for the start-up business they were running (which was making its money off government contracts), and yet another for the NGO on the board of which they sat. Wedel writes that those “who adapted to the new environment with the most agility and creativity, who tried out novel ways of operating and got away with them, and sometimes were the most ethically challenged, were most rewarded with influence.”

This has an eerie resonance with our predicament. We can never be sure just which other business cards are in the pocket of the pundit, politician or professor. We can’t be sure, in short, just who our elites are working for.

But we suspect it is not us.

In Japan, National ID Proposal Spurs Privacy Concerns

EFF has been monitoring governmental proposals for national identification schemes, with an eye toward evaluating the privacy implications of these new systems. In Japan, where an existing program issues unique ID numbers to citizens at the municipal level and shares information on a national network, a bill is under consideration that would create a new ID framework. Submitted by the Japanese Cabinet in February of 2012, the “My Number Bill” would issue new unique ID numbers to participating citizens. The stated purpose is to streamline information sharing between governmental bodies administering tax, social security, and disaster mitigation programs. If the law is enacted, the My Number system will begin operating in 2015.

So far, there are no signs that Japan's government will follow the increasingly common trend of requiring citizens to submit biometric data, such as fingerprint or iris scans, in order to enroll. Nevertheless, it’s clear that data submitted by participating citizens will be subject to greater information sharing than under the prior system. This planned expansion gives rise to serious questions about whether individuals’ personally identifiable information will be adequately protected. While the existing ID framework is highly controversial due to privacy concerns, this proposal will disseminate personal data farther and wider, making it even harder for individuals to exercise control their own information.

Japan’s current unique ID system

Under the mandatory Basic Resident Register program, every Japanese citizen must provide his or her name, birthdate, gender and physical address to municipal governments. With the implementation of the Resident Basic Register Network System in 2002, these four types of information began to be fed into a nationwide computer network, the Juki-net, set up to share data between government agencies. The new system combined the resident registration databases of 3,200 municipal governments, and assigned every Japanese citizen an ID number. [1] Under this framework, citizens may also opt to obtain ID cards, which contain integrated circuit chips.

When an individual moves to a new city, or changes his or her name following marriage or divorce, the informational updates are logged in the Juki-net. The practice of logging such updates afforded government for the first time the ability to instantly obtain information about personal histories and to track individuals' movements over the course of multiple years, according to the analysis of Midori Osagawara, a former journalist who reported on the Juki-net for national Japanese newspaper Asahi Shimbun. “In the past, [a government] official could barely track [an individuals’] data by looking at the paper-based Resident Basic Registry, because the registry was discretely stored in the municipal office,” Osagawara noted in her thesis on Japan ID systems. “By removing the constraint of a stored location, the government could transcend the constraint of time, too. Now, personal data on Juki-net are automatically updated with references to the past.”[2]

The Juki-net became a major source of controversy in Japan when it was launched. A newspaper opinion poll conducted just before implementation found that 86 percent of respondents were afraid of data leakage or improper use of information, while 76 percent thought implementation should be postponed. Several lawsuits challenged the new system, charging that it constituted a violation of the right to privacy guaranteed by Article 13 of the Japanese Constitution. Protests were mounted as well; 70 municipal assemblies and 29 mayors passed resolutions demanding the government postpone Juki-net’s implementation. In one city, whose mayor made it possible for citizens to opt out, 839,539 citizens went to city offices to register for non-participation.[3] Following a Supreme Court ruling that found Juki-net to be constitutional, the citizens who’d requested to opt out were enrolled anyway.

In 2008, the Juki-net withstood a legal challenge when Japan’s Supreme Court ruled that it was constitutional, reversing a lower court’s 2006 ruling that the system violated privacy rights guaranteed by Article 13 of the Japanese Constitution.

Plaintiffs had argued that Juki-net illegally subjected citizens to risks of personal information leakage, and that it infringed upon rights guaranteed under Article 13 of the Japanese Constitution, which states, “all of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” Yet the court rejected these arguments when it found the Juki-net system did not violate Article 13.

The court determined that there was a low risk that information could be leaked due to the technical system design, and highlighted the absence of a centralized database that would enable consolidated control over personal information by any single governmental agency. It also found that the nature of the collected data was not highly confidential.

While Japan’s decision to prevent the creation a centralized database places it ahead of the curve on privacy when compared with many other countries that have implemented national ID systems, it’s important to remember that any digital collection of personal information opens the door to potential data breaches. Meanwhile, the court’s assertion that the data is not of a highly sensitive nature fails to take into consideration the fact that reliable inferences can be made about highly sensitive data by building upon multiple categories of non-sensitive data. For instance, Carnegie Mellon researchers Alessandro Acquisti and Ralph Gross published an article in 2009 demonstrating how social security numbers could be easily predicted by combining various kinds of widely available data, such as individuals’ birthdates and places of birth.

Expanded information sharing

The My Number Bill would essentially take the Juki-Net a step farther, by generating new unique ID numbers and allowing information sharing between the agencies that administer social security, tax, and disaster mitigation programs. The newly generated unique ID numbers would be used as a "key" to link records of individuals' income and payments, and benefits for pensions, health care and other services.

The My Number Bill also seems to be envisioned as a first step toward an increasingly networked system that would integrate highly sensitive information and could be opened up to private-sector use.

The bill was drafted based on a policy outline that won Cabinet approval in June of 2011. The policy outline hints at plans to formulate special statutes around highly confidential personal information, such as medical records. It also describes the possibility of linking unique ID numbers to medical data for research purposes, as long as patients’ anonymity is maintained. Yet this sets a dangerous precedent; researchers Arvind Naravayan and Vitaly Shmatikov, among others, have shown that attempts at “de-identification” are not always effective.

Under the bill, the lack of a centralized database is designed to prevent single governmental body from storing personal information, and an independent monitoring body will be created to ensure personal information is adequately protected. Nevertheless, these measures against data leakage can never be guaranteed to be 100 percent effective.

According to the policy framework paper, the program would be launched in January 2015 in the spheres of social security, tax, and disaster mitigation; by around 2018, the government will evaluate progress and consider expansion to other areas, such as the medical field. Taking into account political controversy currently surrounding Japan’s consumption tax increase, which is tangentially linked to the unique ID proposal since the program aims to streamline tax administration and processing, it’s still too early to say whether the My Number Bill will win approval.

Reactions from the Japanese public

The Japan Federation Bar Association has publicly opposed the My Number Bill, criticizing the program for failing to respect the right to control one’s own personal information.

A number of nongovernmental organizations, such as Japan’s Privacy Action and the Anti Ju-Ki Net Association, also came out against Japan’s proposed unique ID system in public comments submitted to the Cabinet Secretariat in July and August of 2011. They argued that the national ID isn’t really necessary to reform social security and tax programs, and that human rights and personal privacy will be jeopardized no matter what, since it’s impossible to guarantee 100 percent safety when it comes to technology and the potential for human error or active exploitation. Others argued that statutory protections of personal information are ineffective, and that not enough consideration has been given to the shortcomings of the Ju-ki Net. Some NGOs expressed doubts that the ID system would protect citizens’ rights, and called for a cost-benefit analysis prior to implementing the new program.

The Japan Medical Association has voiced concerns about the idea of linking unique ID numbers to medical records. At a press conference in March, the organization noted that highly sensitive patient information could be leaked.

Osagawara, the Japanese journalist and surveillance scholar, offered a sharp critique of the Juki-net, focusing on the expanding requirements for information sharing. “Even in a short-term observation, Juki-net’s development shows how a computer network inevitably expands for data sharing,” she wrote. “Once it is established, it increases the scope of data, engages in multiple tasks, and escapes from legal constraints and democratic transparency.”

We have concerns that the unique ID proposal seems to be moving Japan in a worrisome direction of expanded information sharing that is more sensitive in nature. As we have seen in places such as the UK, where leaks of everything from medical histories to criminal records were attributed to the very government agents entrusted with overseeing a database administered by the UK government’s Department for Work and Pensions, serious challenges arise when digital records of sensitive personal information are created and incorporated into a national network.

[1] Graham Greenleaf, "Comparitive Study on Different Approaches to New Privacy Challenges in Particular in the Light of Technological Developments," Country Studies, B.5 - Japan, Directorate-General Justice, Freedom and Security, European Commission [online], available at http://ec.europa.eu/justice/policies/privacy/studies/index_en.htm


[2] Midori Ogasawara, "ID Troubles: The National Identification Systems in Japan and the (mis) Construction of the Subject" (Master’s Thesis, Queen’s University, 2008), 103 [online], available at http://qspace.library.queensu.ca/handle/1974/1222


[3] Ibid.

20120611

The Defensive Patent License and Other Ways to Beat the Patent System

Let's start with the obvious: The patent system is broken. Inventors are shutting down their businesses, small developers are removing their products from the U.S. market to avoid bogus legal threats, and industry groups are warning members that obvious technological improvements might draw lawsuits.

Last year, Congress passed patent reform legislation; it didn’t help. The courts, too, have failed to pick up the slack. The result? A chill on innovation. American inventors—especially those who don’t often engage with the patent system until they’re facing a lawsuit—want to dedicate their resources to building the next great product or service, not fighting patent wars.

Now, here's the less obvious: We keep learning of more and more ways innovators can navigate the system and hack it to serve its original purpose. We’re particularly excited about the newest, the Defensive Patent License. Below we explain that and some other self-help options we’ve seen lately. Of course, some are better than others, but it’s fair to say that there’s an option for everyone.

The Defensive Patent License: Defensive patenting—acquiring patents to deter future litigation—is not a new idea. In fact, companies have been doing that for some time. Unfortunately, the practice has encouraged companies to seek patents for anything and everything, which—thanks to an overburdened Patent Office—has resulted in a generation of overbroad patents that, if the company folds, often end up in the hands of a patent troll.

The idea behind not-yet-operational Defensive Patent License (“DPL”) takes the good from defensive patenting (attempts to stem litigation) and removes the bad (the risk that patents obtained defensively will be used downstream by a troll). The license would work like this:
  • Patent holders must offer anyone who requests a nonexclusive, royalty-free license to its patents dedicated to the DPL.
  • In exchange, the licensee must also dedicate its patents to the DPL and offer the same license to anyone in the community.
  • The licenses remain in effect throughout the patent's life, even if it is later sold.
  • As part of the license, the DPL members agree to not use their patents offensively against any other member; in fact, doing so will void the license it has to use the other patents in the DPL.
The DPL borrows heavily from the ethos surrounding the free and open source software community, honoring the important freedoms to operate and innovate openly. As such, it is those communities who will most likely use, and benefit from, the DPL.

The DPL represents an important answer to the fundamental problems with the patent system, but it’s not for everyone. For example, the DPL contemplates that a company will dedicate its entire patent portfolio to the license to avoid the problem of members only contributing their “junk” patents and holding on to their “crown jewels.” For various reasons, some companies may not be in a position to do that.

Luckily, the DPL is not the only self-help tool out there.

Twitter’s Innovator’s Patent Agreement: Earlier this year, Twitter announced its Innovator’s Patent Agreement (“IPA”), an important tool for companies looking to do right by their engineers. The IPA, currently up on GitHub for comments, is simple: if you assign your patent to Twitter, Twitter promises it won’t use that patent to sue anyone, except for defensive purposes.

Because the IPA doesn’t give any third party a license to the patents, it does not go quite as far as the DPL. Also, a party who adopts the IPA can chose to do so on a patent-by-patent basis. Importantly, however, the terms of the IPA will run with the patent, no matter to whom it gets sold. This means that if a patent ends up in the hands of a troll, that troll will be prohibited from using it offensively.

Open Source Licenses: The GNU General Public License (“GPL”), the most widely-used free software license, covers both copyright and patent rights. Its terms allow developers to use covered software for free, so long as those developers dedicate, free-of-charge, any changes or improvements to the public, also under GPL terms. The GPL is often cited as a crucial element in the successful rise of Linux.

Other open source licenses, such as BSD licenses, the Apache License, and the Mozilla Public License, for example, cover various types of open source software. These licenses, each in its own way, ensure that important developments in open source software remain open. They do this job well, but unfortunately are limited to the software they specifically cover.

Private Companies: Private, for-profit companies also provide various ways to navigate the patent system. For example, RPX allows companies to buy into its large patent portfolio, which it promises to never use offensively against its customers. Moreover, RPX constantly grows its portfolio to cover its members’ particular needs.

Article One Partners offers a different service, providing a platform for the award of cash prizes to those who provide prior art that may be used to invalidate patents. Article One’s clients request research, which third parties provide. The third party who provides the highest quality research wins a $5,000 reward, and may form a relationship to further work with the Article One client. (Peer to Patent is Article One’s important non-profit analog.) This type of service streamlines the process of invalidating bad patents, something we’ve long supported.

This list is just the tip of the iceberg; other non-profit and for-profit organizations provide tools to help navigate a patent system gone awry, and we look forward to more joining the fray. None of these solutions is perfect, but each offers inventors of different sizes different ways to focus on innovating, and not fighting wasteful patent battles. The real solution is systemic: if software patents are here to stay, then the time to create a system that works for them is long overdue. EFF is working hard to make that happen. In the meantime, we encourage innovators to adopt one of these solutions that works best for them.

Don't listen to what G4S say. Look at what they do

The security company will be patrolling the London Olympics with more than 10,000 agents

Laurie Penny

Branding can be horribly misleading. The official logo of the Salvation Army, a charitable organisation that these days deals mainly in jumble sales, involves crossed swords and the slogan "Blood and Fire". Meanwhile, G4S, the world's largest private security company, whose operatives provide hired muscle to asylum detention centres in the UK, private prisons in America and government facilities in West Bank settlements, has just a neat black-and-red slash and the words "Securing your world". It even has a jolly theme tune, an apparently unironic track called "G4S: securing your world", which involves pounding synths and teeth-clenching rhymes like "let your dreams unfurl". It's hard to say whether this has done more damage to the company's reputation than the case of Jimmy Mubenga, an Angolan asylum-seeker who died while being deported by G4S employees in 2010.

I mention all this because G4S will shortly be patrolling the London Olympics with more than 10,000 private security agents. The British-based company, billing itself as the "world's leading international security solutions group", will be the main provider of all manner of surveillance services to the Games, which will all cost hundreds of millions to the British taxpayer – a bill which has tripled from original estimations. Questions are being asked in Parliament about G4S's human rights record, but the biggest question has yet to be raised: are we really happy for global security, from prisons to police, to be in the hands of private firms that turn immense profits from the business of physical enforcement and are accountable almost exclusively to their shareholders?

The first thing you need to know about G4S is that it's enormous. It has 657,000 employees – more than the population of Glasgow – and is the world's second-largest private employer, after the American retail giant WalMart. It's also booming, with profits up 39 per cent in 2011. In Britain, G4S is the recipient of hundreds of millions of pounds' worth of government contracts, which go way beyond the Olympics. G4S operates prisons and asylum centres across the UK, and will be moving into policing as more and more public services are cut. The company is, in fact, one of the main financial beneficiaries of the Coalition Government's privatisation drive as the state seeks to divest itself of various expensive responsibilities.

The Government has continued to hand out lucrative contracts to G4S, despite the fact that it lost one contract following complaints, though G4S said the reason was cost. Complaints about G4S's deportation service culminated in the arrest of three employees over the death of Jimmy Mubenga. G4S whistleblowers had already given secret evidence to a parliamentary select committee about potentially lethal techniques they said were being used to restrain asylum-seekers, including so-called "carpet karaoke" – stuffing a deportee's face towards the floor to contain them.

This is the new face of the global for-profit security business. Outside the UK, G4S operates in 125 different countries, including Iraq, Afghanistan and Israel, where its paid agents operate checkpoints and provide security at jails for Palestinian prisoners, including child detainees. Israel, where the company's turnover is £120m, will be the subject of the question to be raised in Parliament on Monday regarding whether the presence of operatives in occupied Palestinian territories, including in prisons that hold children, violates the terms of the Olympic charter. Palestinian prisoners and terrified asylum-seekers do not appear on any of G4S's promotional material, but there is lots of footage of smiling people in uniform standing near sporting events.

Technically, we are not allowed to call these people mercenaries. "Mercenary" has a specific definition under the terms of the Geneva Convention, including technical conditions like being born outside the country of operation, which happens to exclude nearly everyone working for a for-profit security firm. Instead of the more loaded term, we must call them private security employees, but we could call them the Happy Fun Henchman Club and there still wouldn't be enough national or international law holding them to account.

Nor does there seem to be any great anxiety to put those laws in place. In Britain, private security agents might be hired to do the same jobs as police officers and prison guards, but they're not accountable to the public in the same way – at least, not yet. The Independent Police Complaints Commission still has no power to investigate private security staff, and the Government is prevaricating over the watchdog's request to extend its remit – which was supported by G4S – while extending the outsourcing of policing to for-profitcompanies. G4S was recently awarded a £200m contract to take over half of the civilian duties of Lincolnshire police force. Policing employees helping protect the public in Grimsby and Scunthorpe will now wear G4S's company logo – that discreet sharp slash of red and black.

What difference does it make if the men and women in uniform patrolling the world's streets and prison corridors are employed by nation states or private firms? It makes every difference. A for-profit company is not subject to the same processes of accountability and investigation as an army or police force which is meant, at least in theory, to serve the public. Impartial legality is still worth something as an assumed role of the state – and the notion of a private, for-profit police and security force poisons the very idea.

The state still has a legal monopoly on violence, but it is now prepared to auction that monopoly to anyone with a turnover of billions and a jolly branding strategy. The colossal surveillance and security operation turning London into a temporary fortress this summer is chilling enough without the knowledge that state powers are being outsourced to a company whose theme tune features the line: "The enemy prowls, wanting to attack, but we're on to the wall, we've got your back." If that made any sense at all, I doubt it would be more reassuring.

US argues it shouldn't have to give Megaupload user his legit files

Property wasn't forfeited because US didn't seize servers—it only copied data

by Jon Brodkin

Out of all the Megaupload customers who used the file sharing service for perfectly legitimate reasons, one has become a poster boy for those who lost access to data when the federal government shut Megaupload down. Kyle Goodwin, an Ohio videographer who runs a business taping high school sporting events, went to court seeking return of his files. The Electronic Frontier Foundation backed him, and even the Motion Picture Association of America said it would be OK with seeing files returned to users if they weren't illegally downloaded copyrighted material.

But in the case's most recent development, US attorneys and the US Department of Justice argued in a brief on Friday (Scribd link) that Goodwin has no right to demand his files back from the government. The government never actually seized his property, the US argued in a brief filed in US District Court in Eastern Virginia.

"The government did not seize any of the Megaupload-leased servers. Instead, pursuant to the warrants, the government copied certain data from the servers," the US brief states. "While the search warrants were being executed, servers belonging to Carpathia and leased by Megaupload were taken offline so that they could be properly forensically imaged."

The US government does not possess any of Goodwin's property, and it would be impractical to retrieve all user data from Megaupload servers, the brief argues. "Because of the large number of servers leased by Megaupload, not all of the servers were imaged by the government (based on estimates provided by Megaupload, imaging all 1,103 servers would have taken approximately 22,000 person-hours)," the government said.

Since the servers themselves weren't seized, Goodwin's property was never actually forfeited to the government; thus US law doesn't allow the relief requested by the Megaupload user, the US argued. The business-related monetary loss he claims doesn't count as "irreparable harm," and his request would impose too great a burden, the brief states.

"Mr. Goodwin does not argue that the actual search violated his rights—he actually argues the opposite," the brief states. "Mr. Goodwin claims that the government’s failure to seize his information led to its abandonment 'under circumstances in which it was both inaccessible and potentially subject to destruction.'"

Instead of asking the government to bear the cost of retrieving information, Goodwin could "hire a forensic expert to retrieve what he claims is his property and reimburse Carpathia for its associated costs," or "sue Megaupload or Carpathia to recover his losses" if the site's terms of service were violated when Megaupload went offline.

That would obviously be a cumbersome process for Goodwin, and one that would have to be repeated en masse by every Megaupload user who wants legitimate files back.

"When the government shut down Megaupload three months ago, it made it impossible for innocent third parties, like our client Kyle Goodwin, to access their data stored on that site," the EFF says. "Others—like service provider Carpathia—have also voiced legitimate complaints about their property getting caught up in the government’s dragnet. But the government has tried to wash its hands of all responsibility, insisting it doesn’t control the property anymore and that the court has no authority to intervene."

US District Court will have to make a decision here—if it sides with the US government, people like Goodwin will be out of luck. But if Goodwin were to win, users might be able to get their data without the cumbersome steps of "hir[ing] a forensic expert" or suing Megaupload or Carpathia. While Goodwin's case covers only one person, its ultimate result could set a precedent for all remaining Megaupload users.

20120610

The IP Lobby's Post-Bill C-11 Playbook: ACTA, SOPA, Warrantless Search and the Criminalization of IP

The Canadian intellectual property's lead lobby group, the Canadian IP Council (itself a group within the Canadian Chamber of Commerce) released a new policy document yesterday that identifies its legislative priorities for the coming years. Anyone hoping that the SOPA protests, the European backlash against ACTA, and the imminent passage of Bill C-11 might moderate the lobby group demands will be sorely disappointed. Counterfeiting in the Canadian Market: How Do We Stop It? is the most extremist IP policy document ever released in Canada, calling for the implementation of ACTA, SOPA-style rules including website blocking and stopping search results from resolving, liability for advertisers and payment companies, massive surveillance at the border and through delivery channels including searching through individual packages without court oversight, and spending hundreds of millions of tax dollars on private enforcement.

This long post reviews the report, focusing on the case it makes for addressing counterfeiting concerns in Canada and on the resulting recommendations. The recommendations are divided into five main groups:
  1. Introduce a Canadian SOPA
  2. ACTA Implementation
  3. New Search Powers Without Court Oversight
  4. The Criminalization of Intellectual Property
  5. Massive Increase in Public Spending Creating an IP Enforcement Subsidy
The report is the third from the same groups (Canadian Recording Industry Association, Motion Picture Association - Canada, software groups, and large pharmaceutical companies) in the past five years. In 2007, the Canadian Anti-Counterfeiting Network released A Roadmap For Change (endorsed by the Chamber) and in 2009, the IP Council issued A Time for Change. I covered the copyright policy laundering strategy that involves multiple reports with similar recommendations by related groups here.

The Case for Canadian Counterfeiting: What the Report Says

The report unsurprisingly begins by trying to make the case that Canadian counterfeiting has become a major concern, relying heavily on European and U.S. numbers. There are some references to RCMP seizures, but the data is limited.  Indeed, the report admits that "the lack of clear and credible data makes it difficult to drive policy makers to action and can compound the problem."

The most credible number comes from the OECD, which has estimated global counterfeiting at $250 billion. This represents a huge decline from previous estimates as the Canadian share of this figure, based on 2% of world trade, would be $5 billion. That obviously isn't insignificant, but it pales in comparison to the 2009 IP Council report which claimed the cost could be $22 billion. Last year, the IP Council suggested that the number could actually be $30 billion. Canadian counterfeiting data has long been the source of speculative numbers without evidence or reliable methodology. In 2007, I used RCMP Access to Information requests to reveal that prior estimates were based on nothing more than a single article found on the Internet. The RCMP and government officials no longer cite these unreliable figures.

In fact, the widespread use of unreliable counterfeiting claims has been repeatedly debunked. The CATO Institute did a nice job of taking U.S. claims to task earlier this year, while the world's most comprehensive study on media piracy, Media Piracy in Emerging Economies thoroughly dismantles numerous piracy claims (the study was partially funded by Canada's IDRC).  Perhaps the most authoritative debunking comes the U.S. government, whose General Accounting Office conducted a comprehensive study into the claims and concluded that they could not "be substantiated or traced back to an underlying data source or methodology."

The report also claims that there are significant links between counterfeiting and organized crime, citing a 2009 Rand Corporation study on the issue. Yet that study was also debunked by the IDRC funded report which noted:

Arguing that piracy is integral to such networks means ignoring the dramatic changes in the technology and organizational structure of the pirate market over the past decade. By necessity, evidentiary standards become very loose. Decades-old stories are recycled as proof of contemporary terrorist connections, anecdotes stand in as evidence of wider systemic linkages, and the threshold for what counts as organized crime is set very low. The RAND study, which reprises and builds on earlier IFPI and Interpol reporting, is constructed almost entirely around such practices. Prominent stories about IRA involvement in movie piracy and Hezbollah involvement in DVD and software piracy date, respectively, to the 1980s and 1990s. Street vendor networks in Mexico City—a subject we treat at length in the Mexico chapter— are mischaracterized as criminal gangs connected with the drug trade. Piracy in Russia is attributed to criminal mafias rather than to the chronically porous boundary between licit and illicit enterprise. The Pakistani criminal gang D-Company, far from “forging a clear pirate monopoly” in Bollywood, in RAND’s words, plays a small and diminishing part in Indian DVD piracy—its smuggling networks dwarfed by local production.

The report also points to a single death in 2007 reportedly due to the ingestion of counterfeit medicine. That is obviously a tragic and unacceptable incident, but the report might note that in the broader context, death due to legitimate prescription drugs are the fourth leading cause of death in Canada and the United States with tens of thousands of deaths in Canada every year due to the wrong drug, dosage errors, or adverse reactions. At the same time, Canadian Internet pharmacies serve millions of patients every year.

The report unsurprisingly cites criticism from the U.S. and Europe on Canadian practices. The U.S. placement of Canada on the Priority Watch list receives the usual mention, even though the placement on the list is the result of lobbying from the same groups who are behind this report. The Canadian government position on the U.S. complaints, as described to a House of Commons committee in 2007 (and repeated regularly in internal government documents), sees this for what it is:

In regard to the watch list, Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

The same could be said for this report.

The Case for Canadian Counterfeiting: What the Report Doesn't Say

Just as important as what the report says, is what it doesn't say. The report doesn't mention that
the Business Software Alliance recently released its annual global software piracy report with new data that not only shows that Canada hit yet another all-time low but has the biggest percentage decline in the world over the past five years. For the past few years, the BSA report has repeatedly found that piracy is declining in Canada. In 2009, Canada was characterized as a "low piracy country", in 2010 the industry noted that Canada's piracy rate was at an all-time low, and last year it dropped further to another all-time low.The latest report says the Canadian piracy rate dropped further in 2011. In fact, over the past five years, the Canadian rate has dropped by 18% (from 33% to 27%), the sharpest decline in the world.

The report doesn't mention that the Entertainment Software Association of Canada's own data, as found in a commissioned a study last year on the major issues facing the industry, finds that piracy is not a major concern. The reference to copyright and piracy as a concern was so low - barely above concerns about an economic recession - that report did not discuss it further. Instead, it focused on the real risks to the video game industry, namely competitive issues, the need for talent (many in the industry recognize that focusing on education may be more important than copyright), and government support.

The report also doesn't mention that Canada stands among the global leaders in digital music sales. As I noted earlier this week, according to the IFPI data, Canadians purchased 94.2 million single track downloads in 2011, making it the third largest market in the world (trailing only the U.S. and UK). The Canadian numbers represented a 39% increase in sales, far ahead of the U.S. (8% growth) and U.K. (10% growth). The data shows Canadians purchased more single track downloads than Germany or Japan, and more than double the sales in France, despite the fact that each of those countries has far larger populations. In fact, Canadian sales were larger than all the sales from Austria, Belgium, Croatia, Finland, France, Greece, Ireland, the Netherlands, Portugal, Spain, and Sweden combined.

The report neglects the broader international developments in this area. If you're looking for references to the backlash against the Anti-Counterfeiting Trade Agreement by four European Parliament committees (and perhaps soon the full Parliament) you won't find it here. You also won't find references to the decision of the Dutch Parliament to reject ACTA, the announcement that Romania won't ratify it, and Switzerland's decision to place the agreement on hold. You will not find discussion of the backlash against SOPA that effectively killed the top legislative initiative of the copyright lobby earlier this year in the United States. There is no discussion of the Kenyan High Court's ruling that country's anti-counterfeiting statute is unconstitutional nor analysis of the criticism from the European Data Protection Supervisor or the United Nations Special Rapporteur on Freedom of Expression.

You also will not find references to what Canada has been doing in the area. For example, the Megaupload case is discussed but there is no disclosure that Canada participated in the case using existing law. There is also little discussion of the million dollar awards that Canadian courts have issued in IP enforcement cases in recent years.

The report contains virtually no discussion of Canadian companies that are implicated by counterfeiting in Canada. There is a case study of Canada Goose, but no evidence provided that it faces a serious counterfeiting problem in Canada. Further, most of the other major brands - luxury handbags and watches, brand name pharmaceuticals, movies and other copyright works - are rarely Canadian in origin. While this does not mean these products do not deserve protection (they do), the implications for Canadian companies is far less significant than the report suggests.  Given the demands (discussed below) for millions in public tax dollars to fund enforcement initiatives, it is worth noting that the expenditures would largely involve Canadian tax dollars providing an enforcement subsidy to foreign companies.

Best Practices and Recommended Reforms

The second half of the report is devoted to "best practices" and the IP Council's recommendations for Canadian law. I combine these two sections since they feed off each other with references to supposed best practices that later surface as recommendations for Canadian reform. I would have engaged in a deeper discussion of the supposed best practices, but there are two major shortcomings. 

First, there are multiple references to practices that do not include a citation or identification of a particular country that has adopted the policy. For example, the report states:

Both legislative and non-legislative projects view the ISPs as crucial players for their ability to block websites from the users or simply not “resolve” or complete the search query.

Is this a reference to the failed SOPA proposal or is there a country that has legislated that ISPs not resolve or complete search queries?

Second, there is virtually no evidence provided on the effectiveness of these measures. They are simply provided as a laundry list of extreme legislative initiatives that are designed to leave the reader with the impression that they are effective and should be matched in Canada.

As for the recommended reforms, they fall into five broad baskets:

1.  Introduce a Canadian SOPA

SOPA may be dead in the U.S., but the IP lobby is anxious to revive it in Canada. SOPA targeted ISPs with website blocking as well as measures focused on payment intermediaries and online advertising networks. In addition to the quote above that even targets resolving search queries, the report states:

The existence of remedies that include blocking orders, domain seizure and contributory liability are useful tools to encourage the cooperation of intermediaries who do not wish to be involved in the illicit activity.

It adds that:

positive relationships between rights holders and these intermediaries, including online payment processors, search engines, Internet service providers, online advertisers, online retailers, web auction sites, web hosting providers, domain name system (DNS) registries and social media platforms, can provide the basis for cooperation in the prevention of counterfeit distribution. This relationship requires the support of government.

To develop these remedies and relationships, the report features three recommendations:
  1. Amend Canadian law to introduce the ability to obtain injunctions against third-party intermediaries as suggested by Article 8.1 of ACTA.
  2. Introduce provisions of Canadian law to ensure that those who induce, jointly act with or materially aid and abet another person in committing an infringement of copyright or trade- mark are also infringing the law.
  3. Proactively engage in facilitating discussion, toward a memorandum of understanding, between rights holders and intermediaries in Canada, with a view to creating simple private remedies to combat counterfeiting and piracy.
If adopted, these recommendations would fundamentally reshape copyright law and the Internet in Canada. The vision is to create new liability for ISPs, block access to websites, and target a myriad of intermediaries. This is an Internet where websites are inaccessible to Canadians, search queries don't resolve, and individual online purchases are searched, all with the full cooperation of ISPs, search engines, and social networks. Even the U.S. discarded many of these proposals with the defeat of SOPA, but this report recommends that Canada implement the rejected provisions.

2.   ACTA Implementation

Despite the fact that ACTA has become widely discredited and is on the verge of being rejected by the European Parliament, the report recommends major changes under Canadian law in order to comply with the agreement:

This agreement introduces numerous provisions that will require amendments to Canadian law, including provisions which require the introduction of ex officio powers for border officials in order for this country to keep up with international best practices.

While ACTA raises numerous concerns (discussed in my report for the European Parliament's INTA Committee), many provisions are optional rather than mandatory. The IP lobby report is demanding changes that extend beyond those required by ACTA.

3.   New Search Powers Without Court Oversight

One of the most disturbing aspects of the report is its insistence on a massive expansion of search powers without court oversight. The Canadian Chamber of Commerce has argued for improving efficiencies at the border, yet now it wants to slow things down by increasing inspections, including small packages containing individual purchases. For example, the report expresses concern that Canadians can acquire counterfeit products through small shipments. It notes:

Mechanisms to address online infringement and the shipment of small quantities of counterfeit goods continues to be a problem for customs officials.

The IP lobby therefore wants new provisions to increase powers to conduct border searches of goods and intercepting small packages without a court order. Proposed reforms include:
  1. Introduce ex officio powers for border officials that give these officials the ability to detain, seize and destroy counterfeit products outside the normal channels of commerce.
  2. Identify new remedies and approaches that can address the challenge of small shipments of counterfeit goods that do not require the rights holder to obtain a court order to suspend each and every shipment.
  3. Develop a system for recordation of rights. Such a system will ensure that border officials have the information they need to effectively exercise ex officio powers.
The core of these proposals envision widespread searches and seizures without court oversight. Border guards would be empowered to increase their search activities and rights holders could provide more information on their products so that customs officials would be encouraged search and seize products in small packages without court oversight or review.

4.   The Criminalization of Intellectual Property

The report calls for multiple legislative reforms that would add new criminal provisions to Canada's intellectual property laws. These include:
  1. Introduce criminal provisions for wilful trade- mark infringement to make the Trade-marks Act consistent with the Copyright Act and international best practices.
  2. Introduce provisions to make it illegal to import counterfeit goods under the Customs Act.
  3. Introduce provisions in the Criminal Code that make wilful trade-mark counterfeiting a criminal offence.
These proposals are incredibly broad. For example, making it illegal to import counterfeit goods (without at least carve outs for de minimis amounts or importation without knowledge or intent) could be applied to individuals, resulting in long wait times at borders and the potential for criminal liability to individual travellers. Further, as noted below, the costs of enforcing criminal provisions will be borne by the public.

5.    Massive Increase in Public Spending Creating an IP Enforcement Subsidy

The report has several recommendations that would require the government to spend millions of dollars enforcing private rights. The criminalization of intellectual property discussed above is designed to increase public enforcement of private rights. Unlike the current system, which typically requires rights holders to assert their rights through civil litigation (an approach that has recently yielded million dollar awards), the move toward criminal provisions would require government prosecutors to act on behalf on rights holders. This represents a huge enforcement subsidy. Moreover, the report recommends:
  1. The government must encourage enforcement officials to seek strong remedies in the case of IPR infringements and ensure prosecutors exploit the full range of remedies available to them, including the proceeds of crime regime.
  2. Develop a team of properly funded and dedicated enforcement professionals in order to effectively face the challenges presented by counterfeiting in the digital age. In the absence of such a team, it will be impossible to respond to the challenges of small shipments of counterfeit product delivered online, and Canada will not be effectively positioned to partner with our international counterparts in tackling multinational operations.
  3. Create an interagency intellectual property council consisting of senior officials from various government departments, including the Department of Justice and the RCMP, with the mandate to develop public education programs, initiatives for law enforcement and policy.
  4. Establish a specialized IP crime task force to guide and lead anti-counterfeiting and anti-piracy enforcement efforts in Canada.
The creation of new agencies, task forces, enforcement teams, and education programs are all part of a systemic effort to shift costs to the public. Far more evidence on the likely effectiveness is needed before government should consider diverting millions from health care and education programs toward IP enforcement for predominantly foreign rights holders.

20120607

US Government Still Insisting It Can’t Be Sued Over Warrantless Wiretapping

Once again, the federal government is trying its hardest to prevent the courts from determining whether it has broken (or is still breaking) the law through the NSA’s wiretapping program.

For nearly four years, the Obama Administration has followed in the Bush administration’s footsteps, invoking national security and a variety of procedural hurdles to shield itself from accountability in courts. In three separate lawsuits that have been churning in the federal courts, the government has used a menu of procedural dodges to block the courts from considering the key underlying question — have they been breaking the law and violating the constitution by warrantlessly surveilling American citizens — over and over again.

And now the Obama Administration wants Congress to extend the broader surveillance powers passed by Congress in 2008.

Al-Haramain v. Obama

The latest example occurred last Friday, in a hearing before the 9th Circuit Court of Appeals in Pasadena, CA during a government appeal of the long running case al-Haramain v. Obama. In 2009, a federal court awarded the two plaintiffs—American lawyers who represented the now defunct Islamic charity, al-Haramain—$20,000 each and $2.5 million in legal fees, in what remains the only warrantless wiretapping case decided on the merits.

The plaintiffs in al-Haramain originally filed suit when the government accidentally provided them with a classified document that showed they had been subject to warrantless surveillance. Despite the government convincing the court to declare the document a “state secret” and exclude it from evidence, Judge Walker granted judgment in favor of al-Haramain based solely on publicly available evidence.

Yet on appeal, as Wired’s David Kravets reported, DOJ claims the court should dismiss the case outright because the government is immune from being sued for breaching the Foreign Intelligence Surveillance Act under a concept known as “sovereign immunity.” Sovereign immunity generally prevents the federal government from being sued unless an act of Congress authorizes it. Through it's a complex, technical argument, the government is essentially asserting the only way to hold anyone accountable for future illegal national security wiretapping is to sue them in their individual capacities (and apparently requiring them to pay any damages out of their own pocket). Given that the FISA was written in the midst of the uproar over rampant official government surveillance, this outcome would be outrageous.

And even assuming the government wins on its argument, would it then let the case go forward against FBI Director Robert Mueller, the one federal official named in his individual capacity? No way. After a question from one judge, the government admitted to the Court that it would then invoke the “state secrets” privilege to stop even that case and also raised the specter of other immunities that would then apply to protect the individual defendants. The Justice Department essentially told the Court, “heads we win, tails they lose.”

The fact remains that the district court sided with plaintiffs – holding that FISA waives sovereign immunity, has national security protective procedures that overwrite the state secret privilege here, and that plaintiffs had established a case, based purely on publicly available evidence, to satisfy their burden. We hope the 9th Circuit agrees.

Jewel v. NSA and Hepting v. AT&T

The state secrets privilege is also the first legal maneuver the government will likely try to use to prevent EFF’s own lawsuit against the government over warrantless wiretapping, Jewel v. NSA. In Jewel, based on evidence given to EFF by AT&T whistleblower Mark Klein, Congressional admissions, and countless media investigations, EFF has argued the NSA violated federal surveillance laws and the Constitution by acquiring untold numbers of Americans’ emails, phone calls, and communications records.

After a recent procedural victory at the 9th Circuit revived the case, Jewel is back before a federal district judge in San Francisco. However, in proceedings over the next few months, the government will likely try to again wall itself off from accountability by asserting that the state secrets privilege requires the case to be dismissed without a determination of whether the government’s actions are legal. Yet, in passing FISA, Congress expressly created a secure process by which the legality of surveillance must be determined by a court. We expect the next round of the fight will be, as previous ones were, a set of arguments by the government about why, despite that carefully considered (and never amended) process, the case should still be dismissed immediately regardless of whether the government is actually illegally surveiling millions of Americans.

Separately, in March, EFF filed a petition asking the Supreme Court (pdf) to hear Hepting v. AT&T – EFF’s lawsuit against AT&T for their role in the government’s warrantless surveillance program, where the companies and the Executive branch strong-armed Congress into granting the President the right to dismiss cases against the telecom companies. The government has asked for several extensions to reply to EFF’s petition, but the Supreme Court will likely decide whether or not it will hear the case by this Fall.

Amnesty International v. Clapper

The ACLU is also challenging the legality of the FISA Amendments Act – the 2008 law which broadly expanded the government’s spying powers – in a separate suit, Amnesty International v. Clapper. Two weeks ago, the Supreme Court agreed to hear that case after the government appealled an appeals court decision ruling in the ACLU's favor.

The government has argued that the case should be dismissed completely on yet another procedural argument. It claims that because plaintiffs—a group of lawyers, journalists and human rights activists who reasonably expect their emails are being unconstitutionally monitored—don’t have “standing.” Like the government’s sovereign immunity argument in al-Haramain, the government is using a catch-22 argument in Amnesty: they say that plaintiffs have to prove they’re being monitored under the program for the suit even to begin, but, simultaneously, the only way they can prove this is if the government intentionally admits that it is surveilling them. Since the government refusing to admit or deny the surveillance, plaintiffs cannot have standing to decide whether the surveillance is legal or, more importantly, to stop it.

Despite the government’s arguments, the Second Circuit held that plaintiffs had established standing to sue based on their reasonable belief that they are being surveilled and the chilling affect that this illegal surveillance has on their communications. We hope the Supreme Court agrees.

President Obama and FISA Amendments Act Renewal

What makes the administration’s stances in these cases particularly heartbreaking is that Senator and then candidate Obama was a vocal critic of warrantless wiretapping, yet once in office has chosen to reverse himself on all counts. Even before he was elected, he reneged on his promise to filibuster telecom immunity in the FISA Amendments Act in the midst of a presidential race. As a candidate, he also promised to curtail the use of the “state secret” privilege, only to turn around and claim it in all of the wiretapping cases —along with many other lawsuits alleging constitutional violations.

All this serves as a backdrop to the current debate about whether portions of the FISA Amendments Act should be renewed by Congress when it expires at the end of the year. As we reported, a House Judiciary Committee recently held a hearing on the subject, where witnesses and members of Congress alike pointed to the fact that the law appears to allow for dragnet surveillance of Americans’ phone calls and emails without a warrant, something that has never been held to be constitutional by any court.

Unfortunately, Obama, who once insisted he would reform the law in the name of civil liberties as president—even after voting for it—has gone back on that promise as well. Renewing the Act with no changes is now his administration’s “top priority,” even as he continues his aggressive resistance to any judicial review.

It will be EFF’s top priority to oppose it.

Ohio school withholds diplomas for excess cheering

By DAN SEWELL

CINCINNATI (AP) — A suburban Cincinnati high school held onto four graduates' diplomas and required community service as punishment for what it describes as overly boisterous cheering by their families during the graduation ceremony.

The mother of one of the graduates, who was one of the leading tacklers on the Mount Healthy school football team, doesn't think he should get flagged for excessive celebration.

"What does that have to do with him?" Traci Cornist told Cincinnati radio station WDBZ.

She doesn't dispute there was a lot of loud cheering for Anthony Cornist. Cornist also said she teaches her children to be accountable for their own actions, but she doesn't think he should be punished for what other people do.

"It took away so much from how happy I was," she said. "It makes absolutely no sense."

Schools Superintendent Lori Handler said Wednesday the problem wasn't the loudness of the yells, but their long duration, which she said halted the ceremony.

After past disruptions, a new policy was implemented this year aimed at making sure that all parents can hear their children's names called and celebrated. When they ordered graduation tickets, parents agreed that "any disruptive behavior" would result in their child's diploma being held until 20 hours of community service is completed, she said.

"Our whole push for this was to make sure that every single student's name is heard and recognized," Handler said, adding that that most parents are pleased with the new rules. "Everybody understands that upfront."

Four seniors, of the 205 who went through graduation May 23, were denied their diplomas, she said. When they went to school to pick them up, they got a letter from the principal informing them it was being withheld because of "excessive cheering" by their guests.

The students are considered legal graduates, and are free to use their transcripts as they apply for college or jobs, Handler said.

Local school boards in Ohio have policymaking powers governing such things as guests' graduation ceremony conduct, and schools also sometimes hold diplomas until fees are paid, books returned or other issues are resolved.

Handler said the school was "very flexible" about how the students can complete the service, whether it's helping other students, cleaning up around the school or doing something for their communities. Also, other family members can perform service on behalf of the student.

She said the other penalized students aren't resisting, and that one had already completed community service to receive a diploma. She declined to release names or other information on them.

Cornist said Anthony is the second of her seven children to graduate from Mount Healthy, and she has another daughter due to graduate next year, so she's not looking for a big fight with the school. But she's very proud of her son and thinks he deserves his diploma.

"I want him to have it, and he shouldn't have to do anything," she told WDBZ on Tuesday. "He's a good kid. ... We'll see. I'm praying on it."

20120605

South Korea surrenders to creationist demands

Publishers set to remove examples of evolution from high-school textbooks.
Soo Bin Park

The evolution of Archaeopteryx will be excluded from some South Korean high-school textbooks after a creationist campaign.

Mention creationism, and many scientists think of the United States, where efforts to limit the teaching of evolution have made headway in a couple of states1. But the successes are modest compared with those in South Korea, where the anti-evolution sentiment seems to be winning its battle with mainstream science.

A petition to remove references to evolution from high-school textbooks claimed victory last month after the Ministry of Education, Science and Technology (MEST) revealed that many of the publishers would produce revised editions that exclude examples of the evolution of the horse or of avian ancestor Archaeopteryx. The move has alarmed biologists, who say that they were not consulted. “The ministry just sent the petition out to the publishing companies and let them judge,” says Dayk Jang, an evolutionary scientist at Seoul National University.

The campaign was led by the Society for Textbook Revise (STR), which aims to delete the “error” of evolution from textbooks to “correct” students’ views of the world, according to the society’s website. The society says that its members include professors of biology and high-school science teachers.

The STR is also campaigning to remove content about “the evolution of humans” and “the adaptation of finch beaks based on habitat and mode of sustenance”, a reference to one of the most famous observations in Charles Darwin’s On the Origin of Species. To back its campaign, the group highlights recent discoveries that Archaeopteryx is one of many feathered dinosaurs, and not necessarily an ancestor of all birds2. Exploiting such debates over the lineage of species “is a typical strategy of creation scientists to attack the teaching of evolution itself”, says Joonghwan Jeon, an evolutionary psychologist at Kyung Hee University in Yongin.

The STR is an independent offshoot of the Korea Association for Creation Research (KACR), according to KACR spokesman Jungyeol Han. Thanks in part to the KACR’s efforts, creation science — which seeks to provide evidence in support of the creation myth described in the Book of Genesis — has had a growing influence in South Korea, although the STR itself has distanced itself from such doctrines. In early 2008, the KACR scored a hit with a successful exhibition at Seoul Land, one of the country’s leading amusement parks. According to the group, the exhibition attracted more than 116,000 visitors in three months, and the park is now in talks to create a year-long exhibition.

Even the nation’s leading science institute — the Korea Advanced Institute of Science and Technology — has a creation science display on campus. “The exhibition was set up by scientists who believed in creation science back in 1993,” says Gab-duk Jang, a pastor of the campus church. The institute also has a thriving Research Association for Creation Science, run by professors and students, he adds.

Antipathy to evolution

In a 2009 survey conducted for the South Korean documentary The Era of God and Darwin, almost one-third of the respondents didn’t believe in evolution. Of those, 41% said that there was insufficient scientific evidence to support it; 39% said that it contradicted their religious beliefs; and 17% did not understand the theory. The numbers approach those in the United States, where a survey by the research firm Gallup has shown that around 40% of Americans do not believe that humans evolved from less advanced forms of life.

“The ministry just sent the petition out to the publishing companies and let them judge.”

The roots of the South Korean antipathy to evolution are unclear, although Jeon suggests that they are partly “due to strong Christianity in the country”. About half of South Korea’s citizens practice a religion, mostly split between Christianity and Buddhism.

However, a survey of trainee teachers in the country concluded that religious belief was not a strong determinant of their acceptance of evolution3. It also found that 40% of biology teachers agreed with the statement that “much of the scientific community doubts if evolution occurs”; and half disagreed that “modern humans are the product of evolutionary processes”.

Until now, says Dayk Jang, the scientific community has done little to combat the anti-evolution sentiment. “The biggest problem is that there are only 5–10 evolutionary scientists in the country who teach the theory of evolution in undergraduate and graduate schools,” he says. Having seen the fierce debates over evolution in the United States, he adds, some scientists also worry that engaging with creationists might give creationist views more credibility among the public.

Silence is not the answer, says Dayk Jang. He is now organizing a group of experts, including evolutionary scientists and theologians who believe in evolution, to counter the SRT’s campaign by working to improve the teaching of evolution in the classroom, and in broader public life.

EFF Tells CA Supreme Court Warrantless DNA Collection Unconstitutional

DNA is the most intimate and revealing part of the human body, with the potential to reveal a person -- and their family's -- medical history and predisposition to disease. Because it's so sensitive, we've filed an amicus brief (PDF) in the California Supreme Court urging it to rule that the Fourth Amendment prohibits the warrantless collection of DNA from individuals presumed innocent who are not yet convicted of a crime.

Over the last few years, the federal government has been building up a massive DNA database called CODIS that stores DNA samples collected by local, state, and federal law enforcement officials investigating crimes. While CODIS was initially concerned only with the collection of DNA of convicted felons, the government is quickly expanding its reach to cover two more populations: individuals entering the immigration system, and arrestees. There are now over 10 million DNA samples in CODIS from all over the country, and 17% of them are from California.

We recently published a white paper explaining in detail biometric collection in the immigration system. And we've repeatedly warned courts across the country in numerous amicus briefs that the government's warrantless collection of DNA from arrestees -- individuals who have not yet been convicted of a crime -- is unconstitutional. While federal courts have upheld the practice, last summer the California Court of Appeal ruled in People v. Buza (PDF) that California's warrantless DNA collection, and the placing of the samples into CODIS, is unconstitutional. And earlier this year, the Maryland Court of Appeal found in King v. State (PDF) most warrantless arrestee DNA collection unconstitutional.

With the Buza decision now on review to the California Supreme Court, our amicus brief urges the affirmance of the lower court's decision. We note that advances in technology have made DNA collection cheaper, and thus easier and more widespread. And while the Fourth Amendment acknowledges that privacy rights of individuals convicted of a crime are diminished, expanding warrantless DNA collection to individuals merely arrested for a crime -- along with individuals in the immigration system who have no criminal record -- are steps on a course towards a future where everyone's DNA is collected and maintained by the government, whether they were ever suspected of anything at all.

We're optimistic that with the decisions in Buza and King, courts are beginning to fully grasp the ability of technology to shrink privacy -- and see that DNA collection should be narrowed, not expanded.

Attached Documents

EFF Amicus Brief in Support of Buza

20120602

Profit-Driven Surveillance and the Spectrum of Freedom: “We will offer electronic monitoring services in every state.”

Matt Stoller

The question of civil liberties versus privacy carries with it an entire set of tired arguments and predictable political posturing. The debate, however, is changing radically, because the capabilities to invade and control privacy have become extremely granular, and the profit motive has now changed the traditional actor in surveillance from the state to the private corporation.

Last year, the Wall Street Journal reported on new facial recognition technology to be used by police, in which a cop can use an iPhone to snap a photo of someone and cross-check that against a criminal database. Developed to deal with insurgents in foreign wars, this technology applied domestic is predictably making civil liberties groups queasy. But there’s a new wrinkle – the company that makes this technology says that “it will be sold only to law-enforcement agencies, although it is considering building applications for the health-care and financial industries.”

Health care and financial industries. That is interesting.

Meanwhile, in Houston, two school districts are requiring students to wear electronic tagging badges formerly used on cattle. The badges “improve security and increase attendance rates, a figure that’s important because some school funding is tied to attendance.” Students are often attending a different school, while marked absent, and these devices allow funding models to more accurately flow funds. These devices impose a novel degree of surveillance on young adults, observing where they go, with whom they spend time, for budgetary reasons.

Profit-driven surveillance does not starts and stop with young adults. It is, in fact, becoming pervasive. The main theme of a recent IBM consulting document on the future of the insurance industry is how much more money an insurance company can make if it tracks and tags its customers. This is particularly true for auto insurance companies, some of whom like Allstate and Progressive are experimenting on new technologies. For instance, IBM suggests that “A “pay-as-you-live” product would trade some location and time-of-day privacy data for lower insurance bills overall.”

IBM is recommending these companies stick a sensor in your car, measure where you go and when, your speed, acceleration and deceleration, etc. The progression over time could be to withdraw traditional insurance products, so that you won’t be able to get an insurance product without sensors attached. As this presentation offers, “The aforementioned rising tide of technology also empowers insurance underwriters to bring their products closer to realtime interaction via sensor networks and enlightened privacy regulations.”

As Michael Lewis has noted in articles and books on Wall Street and sports, you can slice and dice a mortgage into its component interest rate segment and principal. You can build a baseball team based on aggregating and disaggregating statistics. This kind of analysis is relatively new, a reconstruction of the world based on atomistic level quantitative attributes. For instance, you can track geographic areas based on cell phone relationships rather than borders. Financial engineers believe they can pretty much put a price on anything (whether those prices are any good over time is another matter). So what is your freedom worth? You need air, water, food, and relationships to survive. You want to go shopping, to the movies, to see friends. You have kids, romantics attachments, familial obligations. You like being able to travel, to explore, to watch TV. You need medical care. What are each of these worth? It’s a question that analysts are thinking about.

It’s not just sensors in your car – insurance companies are modeling tighter and tighter risk chunks. IBM goes on, saying that new products “will facilitate “just-in-time insurance” as a person moves through a set of “spaces.” Each step of the journey represents a different risk such as car-to-train-station, train-to-city-station, station-to- office, and so on. Each leg of the trip truly represents a varying amount of risk.” Tracking these movements could require nothing more than downloading an app on a smart phone, or some other device. But it is literally the application of financial engineering to your very liberty, or the toll-boothing of your life.

There are innovations in injustice that could accompany these products. Traditional illicit corporate profit-taking has been about denying certain products to segmented groups of people – segregation in housing, lower quality of medical care for ethnic and gender groups, predatory lending etc. But technology has now opened up a new model of profit-taking – if a company knows where you go, who you talk to, what you buy and eat, and your medical history, then it can charge you premium pricing by denying you exactly what *you* want. It can bypass your ethnographic group, and focus on tolling off component parts of what you as an individual want.

Imagine a new financial product targeted at people who have defaulted on debt and have a history of avoiding debt collectors. It’s a new kind of credit card, by a bank, which offers a reasonable rate of interest. You don’t have to put up cash or collateral. You don’t have to pay on time. The catch is that the financial institution requires that you wear a small tracking device on your ankle, so that their debt collection department knows where you are at all times. And if you violate the terms of service, the device blares out messages from debt collectors, wherever you are. The device could also be set up to blare out messages whenever you enter a “restricted zone”, say, a shopping mall or a store that the bank has put off limits to you.

Or imagine that a corporation decides that new employees must wear one of these for the first 30 days of employment, to ensure that he or she isn’t tardy, and to more accurately clock people in and out of work. The technology exists, and is being marketed, by private corporations. And it is being used by private corporations everywhere in America, to track tens of thousands of people. I drew this example from a specific device that could do this is called the ExacuTrack One) – the web page describing its technology leaves open all sorts of chilling possibilities. The reason you haven’t noticed is because these products are tracking prisoners, ex-felons, and people on parole.

This specific technological application is an outgrowth of a part of the for-profit prison industry, the for-profit parole segment. This industry, by design, is based on profiting by denying freedom to groups of people. And the more freedom denied, the more profit. Prisons are a blunt instrument in terms of restricting movement; parole is more like quasi-freedom. Sensors to track parolees can blur into sensors used by insurance companies to lower your premium or cattle tags to track students for better school district accounting. And selling tracking gear is the strategy pursued by the multi-billion dollar for-profit prison company Geo Group to differentiate itself from the more traditional “lock ‘em up and profit” competition. The Geo Group doesn’t just own and operate “beds” for prisoners, it has done what any good management consultant would tell a company to do in an expanding market with a lot of different customer needs: diversify its product offerings.

Prominent in the Geo Group’s annual report is what the company calls its “Continuum of Care Services” strategy. In December of 2010, Geo Group bought an electronic tagging company called BI Incorporated. Here’s how the company explained the deal.

Founded in 1978, BI is the largest provider of comprehensive electronic monitoring services with a full complement of technologies, including radio frequency and global positioning system equipment, voice identification, and remote alcohol detection systems, which track more than 60,000 offenders on behalf of approximately 900 federal, state, and local correctional agencies located in all 50 states.
It is tracking 60,000 people. And in the company’s 10K, the company wrote that, “following the BI Acquisition,” it “will offer electronic monitoring services in every state”. So it’s everywhere in the US. Its business solutions are unique. For instance, BI has an “exclusive contract with U.S. Immigration and Customs Enforcement, which we refer to as ICE, to provide supervision and reporting services designed to improve the participation of non-detained aliens in the immigration court system.” This means that the company is in a regulatory role over the behavior of large groups of people, who are not in prison. The Geo Group can now “offer turn-key solutions to our customers in managing the full lifecycle of an offender from arraignment to reintegration into the community, which we refer to as the corrections lifecycle”. Again, this is the language of a bureaucracy of management, transmuted as easily from one industry to another.

Check out BI’s website; it is selling to State Departments of Corrections, parole departments, sheriffs, county executives, pretrial and probation officials, and judges. That’s a lot of customers. The company has a blog which answers such helpful questions as “What type of criminal defender should be on GPS tracking?” (every type of offender, as it turns out, including “juveniles”). There’s a products page, which looks like a demented Sharper Image catalogue.

The Geo Group now operates a whole host of corrective services, including prisons, youth prisons, psychiatric hospitals, electronic tagging, parole services, and secure airborne and ground transportation of prisoners. It also has facilities in the UK, South Africa, and Australia.

Mike Konczal picked up a 2007 report from the American Legislative Exchange Council (ALEC) on the push to privatize parole, or “community reentry services”. It’s not a surprise that privatization advocates would want to do to parole what they did to prisons. The question, though, is why a for-profit prison industry seek to push people out of prison?

The answer is, it depends on how much money you can make money by tagging and tracking people. The embedding of the profit motive into the criminal justice system is a profound shift in how we govern ourselves. That a private corporation has better data on tracked offenders than the 900 Fed and local jurisdictions it serves is potentially a threat to sovereignty. It means that traditional powers held by the state are now being moved into a whole host of actors, a kind of soft authoritarianism in which you can vote for politicians but the corporate entities that track and tag your freedom are impervious to social pressure.

It’s not too hard to imagine these services and products being sold to private actors to track employees, debtors, dissidents or anyone else. The plans are already laid out. Corporations are already tracking Facebook accounts, have extremely detailed information on financial and web usage, and frequently use credit checks before hiring someone. This is all an increase and broadening of coercive techniques in managing human resources.

This shouldn’t be shocking to those who have studied real American history -American corporations used to have their own quasi-military forces. Congress even set up an anti-Pinkerton law; Pinkerton was the Blackwater of the 19th century, and was used to break strikes back when that meant gun battles, rather than showing anti-union video tapes to new employees.

In fact, whether you are tracked because you get a discount on your auto insurance or whether you have broken some arbitrary rule or fit in a non-mainstream class of person, innovation in technology and autocratic organizational forms means that there will be a whole new category of constraints on freedom.

It is very much like the plain vanilla loan, which could be held by banks, being disaggregated into its component parts and sold to investors with varying degrees of risk. This then led to investors demanding more exotic loan products whose risk attributes they wanted to own. This can happen with human freedom. Based on what you are willing to pay, how much power you have, and your desires, our culture will begin offering extremely granular freedom zones.

Many people think that the current Supreme Court and political arrangement means that America is heading back to a 19th century political economy, with 21st century technological possibilities. Thinking about for profit prison and parole companies combined with GPS is a way to imagine what this might look like. When you layer on the clear trend of insurance companies that seek to track you with sensors, and school districts who want to track kids for accounting purposes, it’s becoming increasingly clear that the systems we’ve set up to run our society are increasingly, well, running our society.

The financial engineering of component parts of freedom, and the removal from the state of the monopoly rights to track and/or restrict movement, represents a novel form of social organization. It could be nothing less than a new form of authoritarianism, a soft version in which there are political choices and a measure of openness, but a jello-like network of corporate cartels holding power. In this society, you’ll get whatever zone of freedom you can pay for, and if you can’t afford any freedom, you won’t get any.