“Fear was a big part of it”


I’m watching the PBS American Experience episode “Ruby Ridge”. Sara Weaver, the daughter of Randy Weaver, is describing how her parents were preparing to move from their Iowa farm to living on a mountain in Idaho. She says they were adhering to the Biblical passages of “an apocalyptic future” and says

“Fear was a big part of it.”

As the episode draws to a close, she adds

“When you operate out of misinformation and fear, things can go wrong.”

These are words worth remembering – not just in the tragic and volatile 1992 “Ruby Ridge” case, but in our society in general today, and in the language that we hear from those who are responsible for guiding us forward as a nation.

Fear is a big part of it.

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Private transactions: you, me and the rest of the world

The Supreme Court is hearing arguments today on the case of Sorrell v IMS Health, arguing the merits of a law in some New England states to prohibit dissemination (selling) of prescription records to pharmaceutical marketeers. These records, purged of patient identifying information under HIPAA, contain the specific identity of prescribing physicians and dispensing pharmacists. The marketeers want to mine for information about who is dispensing what so they can direct marketing campaigns promoting their pharmaceutical alternatives. The doctors and pharmacists are demanding privacy protection.

This is an important case in the whole business of data selling — a critical, and presumed legitimate, use of your private transaction data by marketers to "personalize" your advertising experience.

I trust that, if the marketers lose and the states prevail, that this same principle can and should be extended to other areas — marketing certainly, but more importantly consumer credit reporting which is the scaffolding upon which the credit industry stands. Imagine what happens if credit bureaus are prohibiting from selling, or even collecting, your transaction data (billings and payments) from your mortgage firm, your auto loan company, Visa/Master Card/Amex, department stores and so on. Those credit reports — and the mysterious "credit score" — make the credit industry work. What happens if the flow of data is cut off?

What about those loyalty cards that stores use to offer you "discounted" prices? They are collecting personalized data about your shopping habits, and probably selling that info to product makers (Proctor & Gamble, Kraft, Coke, Purina, etc.) for their marketing. This "360-degree view of the customer" has been in play for several decades, but it depends on the flow of your personal shopping data out to the world. What you think is a private transaction between you and Target  and Visa turns into a transaction shared with most of the product suppliers. You buy a 10-pound bag of Purina Puppy Chow at Pet Smart and you are suddenly inundated (at home and by email) with ads for dog products from Purina, its competitors and other unrelated suppliers and merchants. How did they know?

This may turn out to be an important case if the states prevail. My guess is that they will not, given the current court makeup and tendency to give for-profit business plaintiffs the advantage over private individuals. Still, I am curious about the nature of the arguments to be made.

The governing principle here lies in the answer to the question: who owns the data about me? When I enter into a private transaction with a store, does information about that transaction belong to me? to the store? to the credit card vendor? I believe the answer is "Yes" to all of these, but the answer is a clear "No" to each of these individually. Here’s what I mean.

Current practice is for the merchant to assert complete and independent ownership of this data. In line with this assertion, the merchant believes that it can do as it wishes with the data — publish it on the internet, sell it (as a non-rival product) or exchange it for money or data in kind,  destroy it, re-use it internally. All of those actions can be taken with no permission from you, and with no notice to you.

But what are your rights to that data? Did you surrender this data — who you are, where you shopped, what you bought, how you paid, what you paid — did you surrender this data to the merchant with full license to do with as it wishes?

As case can be made — and perhaps, is being made in Sorrell v IMS Health —  that the data is, in whole or in part, as much your property as it is the merchant’s. And because you have ownership in the data, as property, the merchant cannot do anything with it without your permission.

This is not a viewpoint that has traction in the business community. The data mining industry is huge, and every business is or wants to be a player in that industry. But the industry cannot continue if there is a constraint on the data.

Suppose, for example, that the merchant needed your permission for each piece of data it transferred to someone else? The sheer logistical burden would be overwhelming. And imagine if the data collector needed your permission to mix your data with others and then to sell the results? They wouldn’t do it. The cost would exhaust all possible benefit.

But cost aside — what’s the right thing to do here? Do you get real benefit from all this back-room data transacting that started with you? Could you live without getting personalized advertising in the mail? Could you shop just by making your own choices, without the merchant guiding you to "your" preferences? I’m betting you can.

So, cui bono? Who benefits? You started a transaction, gave up information about yourself in doing so (often without realizing it — any credit card transaction or loyalty card gives it all up), and got nothing back. Yet you started a chain of events that results in benefits and profits for companies and services you’ve never heard of.

Under good government, the question of ownership of data about me would be asked — and answered — openly. And if data is property, to be bought and sold, and I created the data by participating in the transaction, then the data is my property and cannot be sold without my permission.

It will be an interesting decision to watch.

Special thanks to Joanne for positing the ownership question in the first place. And acknowledgement to Seth Godin, whose "Permission Marketing" arguments got me started thinking about this 10 years ago.



If you don’t like the law, just wait

We now face the prospect of seeing the Patient Protection Act of 2010 being repealed. The Republican party leaders, following the lead of the Tea Party insurgents, promises to repeal the act less than one year after it was enacted and 3 years before its major benefits and controls take effect.

Is this a rational way to govern? Are there other laws that we can just wait out?

I would think that, under good government, once a law is passed the citizenry should make the appropriate adjustments to conform to the law. What we see instead is a concentrated effort to nullify the law — the political leaders are encouraging people to ignore the law in the expectation that it will be repealed in its entirety in only a few more months.

Is that leadership? Is that good government? Is that government at all?

In any given year, hundreds of laws may be passed by Congress, by state legislatures, by local municipalities and councils. We now see the major national leaders of a major national party declaring that any law passed by any governing body can be overturned before it takes effect. They let everyone believe that, rather than plan for the law’s effects, people and businesses should continue with business as usual, as if the law had not been passed at all.

This is a dangerous principle to instill. It suggests that government isn’t serious — that, at the end of the day, any law passed, however closely or legitimately, can be treated as "just kidding".


On Alberto Gonzales’ Resignation (Part 1)

Some initial thoughts on the resignation of Alberto Gonzales from his position as Attorney General of the United States:

Why wasn’t he fired? The President needs to make it clear that he fired Gonzales, not that Gonzales chose to resign. If the decision is left to Gonzales, then the President is not the "decider" that he says he is. The President shows himself to lack the courage to make the hardest — and most noble — decision: the decision to separate himself from the incompetence of Gonzales, and the invalidity of his perception of government in the United States, despite years of close friendship.

No doubt in my mind that the President lacks this courage.

Who will replace Gonzales as AG? Who cares?! The news heads are all talking about who will be replacing Gonzales. This is wrongly focused. And the Democrats who run the Senate must not focus on who the replacement is. Rather, they must — today, now — set the criteria by which they will decide their confirmation.

These criteria must, at minimum, be:

  1. Reject the principle of the unitary executive that Gonzales (and Ashcroft before him) propounded. This principle is antithetical to the Constitution and must be rejected by the nominee. If not, reject the nominee.
  2. Reject the validity of torture of prisoners of war that Gonzales famously embraced. The President has said that "the United States does not torture", but that same President embraced and defended an AG who says torture is legitimate. Torture as a practice must be something the AG nominee must agree to prosecute vigorously; the Gonzales "torture memo" must be rejected explicitly by the nominee. If not, reject the nominee.
  3. Accept the legal constraints imposed by the Geneva Conventions, which Gonzales characterized as out-of-date and "quaint". Under Gonzales’ tutelage, the President adopted practices that violate the Conventions and, in so doing, violate US law. The AG nominee must reject Gonzales’ characterization, and must embrace the validity and applicability of the Geneva Conventions to our current and future war. If not, reject the nominee.
  4. Reject the "war tribunal" practices that Gonzales promoted and the President put into effect in Guantanamo. These practices violate criminal process and Constitutional protections. The AG nominee must accept the primacy of the Constitution over such extra-legal, extra-judicial practices. If not, reject the nominee.
  5. Endorse the singular authority of Congress to declare war and raise armies, as the Constitution provides. By endorsing the Constitution, the AG nominee rejects the claim that the President may, under any circumstances, declare war or raise armies. If the AG nominee cannot endorse this Constitutional provision, reject the nominee.
  6. Reject the principle that the President can enforce part of, but not all of, a law passed by Congress. Gonzales has endorsed and encouraged the President to issue signing statements declaring that he will not enforce singular provisions of a law, most notably, any portion of a law that requires the Executive branch to report regularly to Congress on the implementation of the law. This is not a valid authority of the President and the AG nominee must reject that principle. If not, reject the nominee

There are many more criteria…but the point is, it doesn’t matter who the nominee is. It matters what the nominee believes about the authority of the Constitution as the supreme law of the land.

…more to come…


Fruits of the Poisonous Tree

You only have to watch Law & Order for a month to hear the words "fruits of the poisonous tree". Apparently — I’m no lawyer, but I watch L&O — this is a doctrine in US law that says that evidence discovered through information gathered by illegal or unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. The theory is that the "tree" (original illegal means) is poisoned and therfore poisons anything that "grows" from it.

I came to think of this as I listened to those who argue for amnesty for illegal aliens. They argue that many illegal aliens have been here in the US for years, held jobs, built homes, raised families and otherwise been contributing to our society. 

While all of this is laudable behavior, isn’t all of it — the job, the prosperity — "fruit of the poisonous tree"? None of that would have happened had there not been a series of "poisoned" acts. First, the illegal alien would have entered the country without appropriate documentation or permission. Second, the illegal alien would have been hired by an employer who did not validate the alien’s right to hold a job. Third, the illegal alien and/or employer may have used false identification — Social Security numbers, driver’s licenses — to report payroll, pay payroll and income taxes, and so forth.

Without having engaged in these illegal acts, the illegal alien would not be held up as one who has held the job, would not be able to build a home, could not afford to raise a family.

A principle of Good Government would hold, properly, that one should not profit from illegal activities. That principle underlies other laws. Drug enforcement is permitted to seize homes, cars, boats and other assets gained through drug sales. Likewise, the IRS seizes assets in cases of tax fraud. And, of course, the "fruits of the poisonous tree" blocks prosecution when the prosecutor proceeds illegally.

So this is not a new principle. Nor is it one to be abandoned when we consider what to do about illegal aliens. When we look for a resolution to the problem of illegal aliens, we would be wise to dismiss the argument that these illegal aliens have been here for a long time, prospered and contributed to the community. All of that, however laudable, must be labeled "fruits of the poisonous tree" and rejected.



Immigrants, Nonimmigrants and Illegal Aliens

A few weeks ago, I read — for the first time — the rules and laws related to US immigration. I learned:

  • Immigrants are those who have (or are seeking) permanent residence in the US
  • Nonimmigrants (visitors) are those who are here temporarily, for example to visit or work in the US

I probably should have known this already, since I have worked with both Immigrants and Nonimmigrants over the last many years.

If you are here on an H-1B visa, you are a nonimmigrant — for example, a temporary worker. The visa is only good for up to 3 years, renewable up to 6 years. There are many other classifications for visas.

If you have, or are applying for, a "green card", you are an immigrant — also know as "lawful permanent resident" (LPR). The green card must be renewed every 10 years, and renewal can be denied.

So what does "illegal immigrant" mean? My guess is that an "illegal immigrant" is someone who is behaving like a permanent resident but doesn’t have a green card.

If you are just here to work temporarily — seasonal work, for example — but don’t have a visa, you would be an "illegal alien".

The public discussion of the "immigration problem" has so tangled itself in using the words "immigrant", "illegals", "illegal alien" and so on that it’s hard to have a meaningful debate. And the mobs in the street are chanting for the rights of immigrants, which no thoughtful person disagrees with.

So here’s my contribution to the noise: a proposal for the "comprehensive immigration reform" that I’ve sent to my congressional representatives….you can download the file in PDF or …


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