The U.S. Supreme Court: Free Speech Trumps Public Accommodations Law

I contend as a matter of reasoned opinion rather than infallible fact that the Free Speech protection in the U.S. Constitution applies to not only human beings, rather than to non-human legal “persons” (e.g., corporations), but also to speech where the purpose is speech rather than something else. I have written elsewhere on the mistake in treating corporations as if they were human beings, so I treat only the second claim here. I reference the first claim only as context for my broader claim that the U.S. Supreme Court has tended to over-extend applications of the free-speech clause not only beyond its original intent, but also common sense. The latter violation is particularly astonishing. 

That clause, I submit, is oriented to forbidding the state from blocking or punishing what a person would otherwise say or write. The state compelling speech is a different matter, though that too ought to be prohibited in a free society. Also, where the purpose is business, standing up to the state in what a person says or writes is yet another matter. So if I open a business that sells ice-cream, for instance, I would be mistaken were I to view having chocolate ice-cream as a matter of free speech. I would not be selling chocolate ice-cream in order to say something, but to sell a product.

In Creative LLC v Elenis (2023), the U.S. Supreme Court decides in favor of an evangelical Christian whose business includes web-page design for weddings. She maintained that her religious belief against gay marriage should be an exception to the state’s public accommodations law, which bars discrimination against a protected class. Colorado, on the other hand, “argued that its Anti-Discrimination Act regulates sales, not speech, to ensure ‘equal access and equal dignity.’”[1] In other words, making and selling a product (or service) in order to profit financially is not speech. 

So Gorsuch, who wrote for the majority, incorrectly refers to “speech like Ms. Smith’s conveyed over the internet.”[2] At the very least, it is misleading to characterize Smith as conveying speech on the internet, for her purpose and the contours of her activity was to make and sell a product. She was not posting essays, for instance, or constructing her own website (her company’s website too was oriented to selling products rather than conveying “speech”). For a bit of context, the Russian bloggers posting essays online on the Ukraine war at the time would have shaken their heads in disbelief had someone told them that the website of a business engaged in selling products is really about speech rather than business. Even Target, an American retail company, did not put gay Pride flags for sale on the company’s website to make a statement; rather, the company was selling a product. Were the company making a political or ideological statement by adding gay Pride colors to the website, then that would fall under free speech. Smith was not making a political or ideological statement; rather, she was selling a product—webpages for weddings.

Gorsuch attempts to hold the ruling back from enveloping business in its entirety by carving out the production of a product that is "expressive" of the person who makes the product. But a web-page is not a piece of art unless that is the purpose. Also, virtually any product could be said to be "expressive," for product-design itself expresses the work of a designer. Put another way, Smith's own personal website, or even the website of of her business, can be said to express herself in a way qualitatively different from the websites she makes for clients. Gorsuch conflates the two and thus ignores the distinction. He thus unwittingly set up a slippery slope by which virtually anyone in business can obviate public-accommodations law simply by arguing that one's work expresses oneself in some way. Locke, after all, argues that a person mixing one's labor with a piece of land is sufficient to turn it into private property. 

The real tension associated with public-accommodations law is not free-speech; rather, the right of private property is that which is circumscribed by the government mandating that protected classes be served. Smith could have argued that her business’s niche was Biblically-based weddings, based on the fact that the business was her private property. For she was using her property for productive rather than speech purposes, and the substance of her enterprise was making and selling products rather than publishing speeches or essays, or even making a political or ideological statement.

Public accommodations law is not absolute. A store manager of a Starbucks coffeeshop had demonstrated this in having two people removed because they had refused to purchase anything and then ignored the manager’s authority, which in turn is rooted in the right of private property. That those two people were of the Black race is besides the point; anyone, protected class or not, who sits at a table in a restaurant but refuses to order anything is subject to the right of private property. Insecure, Starbucks’ upper management capitulated to the unfair criticism by showing the public that the company could discriminate against Caucasian employees, including a regional manager, who had won her case in court less than a month before the Supreme Court’s decision on “free speech.”

Unfortunately, the dissenting opinion of the court obsesses over discrimination, and President Biden said the court’s decision was unthinkable. The opposition missed an opportunity to point to the jurisprudential mistake in the majority opinion, wherein selling a product is itself characterized as free speech. This rather basic category mistake was missing from the dissent, given the salience of ideology on the court, which in turn is another problem.  I submit that public discourse in the U.S. too often skirts or overlooks underlying problems, while obsessing on flash-point ideological agendas. I write in large part to uncover depth such that it might be more highly valued and sought after.

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1. Andrew Chung, “US Supreme Court Deals Blow to LGBT Rights in Web Designer Case,” Reuters, June 30, 2023.

2. Ariane de Vogue and Devan Cole, “Supreme Court Limits LGBTQ protections with Ruling in Favor of Christian Web Designer,” CNN.com, June 30, 2023 (accessed same day).

Pittsburgh Businesses Encroach on Public Property with Impunity

Private property, competition, and the market-mechanism have come to be assumed to be integral to the economic system of Capitalism. The assumption that this cluster of attributes is necessary is faulty though, as, for example, the state can own some or all of the “means of production” (i.e., firms) that are subject to market competition, especially if privately-owned enterprises also exist. China had a mix of private and state-owned enterprises compete in several industries when the state opened the economy to competitive forces setting supply and demand. In Wisconsin, the Green Bay Packers, an NFL football team, is owned by the residents of that city, such ownership being Socialism, and yet that team has competed not only to win, but also in the hiring of players and managers. A competitive market does not require that the property of the means of production be privately owned. Even in the case of private ownership of companies, the widely accepted custom wherein the owners receive the residual profits after expenses is dogmatic in the sense of being arbitrary. Alternatively, creditors or employees/managers could receive any excess revenue after expenses have been paid. In short, Capitalism as it has come to be known and exercised is more arbitrary than capitalists may realize. Even the taken-for-granted distinction between public and private property is not as stark as may be typically supposed. This is no excuse, however, for businesses that knowingly encroach on public property as if it were their own private property. A Capitalist economic system predicated on private property may contain not only the seed of monopoly, as Marx claimed, but also a tendency of private enterprises to over-reach on the public domain. If so, government has a responsibility to prune back the overweening tentacles. Two examples make this point.

Once while walking on a narrow sidewalk, I glanced down at my phone and was instantly startled as I ran into and tumbled over a metal chair in the middle of the sidewalk. A restaurant’s employees had set up tables on the side of the sidewalk with chairs out into the middle of the sidewalk, and a bit beyond a table had been placed in the middle of the sidewalk, with a potted plant placed making it even more difficult to navigate around the tables and chairs. Who would want to eat in the middle of a sidewalk, with people passing by at close range? The manager of that restaurant was guilty not only of missing this rather basic point, but also of the incredible presumption that the public sidewalk was essentially part of the business’s private property, which astonishingly placed the public at a disadvantage on public property!

A month earlier, I had called the zoning department of the city. I had been assured that a restaurant cannot obstruct a sidewalk. However, the city then failed to act, perhaps capitulating to the business interest (and wealth). So, after I nearly fell from running into the chair, I called the city again. The employee who answered insisted that the city gives permits allowing businesses to permanently block or obstruct public sidewalks. So, I called again and spoke with another person who had more of a sympathetic ear when I explained that I had almost fallen, and that a hazard exists because numerous pedestrians walk into the street because of the obstruction. Two weeks later, with Franks Bar and Grill still interlarding on public property, I left a phone message for the code enforcement person. Two weeks after that, as the photo below demonstrates, the restaurant was still blocking the sidewalk. 

I know that the city had opened an investigations months earlier, so I surmise that the restaurant's owner or manager knew of the complaints and dismissed them. Additionally, I suspect that the city of Pittsburgh had bowed to the business interest at the expense of the public good. This is as much of a problem as is the presumptuousness and dismissiveness of a business that can take advantage of a corrupt municipal government.

Another example of companies encroaching on public "space" is the overreaching of security guards and private police employees presuming that their turf extends beyond a company's private property. When I lived temporarily in Pittsburgh, while I was walking on a public sidewalk along a hospital that was part of the University of Pittsburgh, I stopped at a food-truck only to realize that a security guard was perched on a small hill from which he seemed to have been presumptuously patrolling the sidewalk. In the distance was another security guard. 

Initially, I thought he was in line to order food from the food truck as I was. So I held back. Strangely, he likely viewed my standing position with suspicion, or, more likely, dislike as I was looking generally in his direction. Not all subtle, he strategically walked past me up close and stopped further along on the sidewalk, presumably there to talk to another food vender, yet his body position reveals his real orientation. 

The presumptuousness of that university-affiliated hospital was visible in the choice of the security guard’s uniform mimicking that of the police—including with a silver “badge” and handcuffs. If the hospital was breaching the state's monopoly of police powers, which in general is a larger problem, I submit that the visible artifacts added to the possible presumptuousness of the wearers that company security hyper-extends "off campus" even if the state permits it. The artifacts also misled the public into supposing that the company's police were the same as the city police. At the very least, a company's private security or "police" employees do not necessarily receive the same training as the regular police receive. There is also the problem of legitimacy from a democratic standpoint once the state's monopoly of police powers, as per the U.S. Constitution, is violated by companies. 

Just a public property is distinct from private property, a company's employees are distinct from a government's police force (and power). Encroachment onto a government's use of force puts a company in a conflict of interest in that its security employees are not in an even-handed position in disagreements between a company's management and its stakeholders. Human nature being what it is, we should not assume that the employees would be fair in cases in which a management oversteps its own authority ethically or legally. 

I contend that business managers have a tendency to overreach, even perceiving public property as fair game to be captured for the private, narrower, interest of a business as the public interest suffers. This tendency on the microlevel is the same as that which fuels a company in a competitive industry to become a monopoly. John D. Rockefeller, for example, pressured competitors unwilling to be bought by his Standard Oil company. The titan had the audacity to view himself as a Noah saving the drowning competitors from being ruined by the destructive competition especially in the 1860s, and as a Christ-figure saving them. Unlike Rockefeller, Jesus in the Gospel stories does not kill off people who are unwilling to accept his help. Rockefeller even pressured the railroads to pay Standard Oil a “drawback” when they carried the oil of his competitors. Such encroachment breached what was thought to be ethical business conduct at the time, which in turn included some practices that would come to be regarded as unethical. The titan’s presumptuousness thus extended to treating the railroads as akin to his own property. By such means of encroachment, Rockefeller built his company into a monopoly in the refining industry. Fortunately, the U.S. Supreme Court broke up Standard Oil in 1913, but made the mistake of keeping in tact the same ownership in all of the resulting companies. The managements thereof were even allowed to be in the same building! A willingness to stand up to powerful businesses and competency as to how to break up their excessive market power from previous encroachments are both important if the private-property attribute of modern Capitalism is not to eviscerate the attributes of competition and the market-mechanism. Given the tendency of business managers to shirk the public interest, society needs some means of protecting public property from the inevitable encroachments.

American Businesses as Police-States: The Case of Hilton Hotels

Days before Christmas in 2018, Jermaine Massey was on a phone call with his mother. It being personal, he was in a remote area and was thus not disturbing anyone—that except for Earl, Doubletree’s security guard. Massey subsequently accused Earl of harassment. While the video that Massey took of the guard during the altercation shows Earl to be quite calm, the passive aggression was doubtless off the charts. The incident points to a growing problem at the time as American businesses were increasing their security presence, at the very least in terms of exposure, and last but not least, with considerable discretion and thus power. The incident shows that guards were well aware of how to mask personal power with the air of staid professionalism.  This only makes the latent authoritarian mindset more dangerous to the public.

After Massey had relocated to another hotel (without a refund from Hilton/Doubletree as of that time), he wrote on social media that while he had been talking with his mother, Earl approached. “He said that I was a safety threat to the other guests and that I was trespassing and said that I was a disturbance because I took a personal phone call from my mom in a more remote area of the lobby.”[1] Even if Massey had been too loud in his phone conversation, considerable overkill is involved in stretching noise to a safety “issue.” Additionally, Earl presumed that Massey was trespassing even though the latter had his room key (with the envelop indicating the room and date!) visible. That Earl refused even to admit the possibility that the key might be valid points to a serious lapse in Earl’s mind. What could prompt such a distortion well in the scope of Earl’s duty?

Friedrich Nietzsche would say that the pleasure of power is the underlying culprit. Earl was simply too weak to resist his over-extended need for power, and his tendency to assume the worst in people—common, I suspect, among police—only fed his need. That Earl had handcuffs and a metal “badge” that doubtless had been designed to mimic a police badge only enabled his predisposition to act even beyond the functions of a guard. For instance, a guard does not have the authority to arrest—so why the cuffs?

Making the problem of the over-extended guard worse, the hotel’s manager on duty enabled Earl by taking Earl’s decision that the police should be called on Massey as something that should and cannot be overridden. Earl used a walkie-talky to communicate his decision to the manager, then told Massey that the police would be there to escort him off the property. Even though Massey insisted that he had a room at that hotel, Earl countered with a tone of being the person in charge there, “Not anymore.” Even though the manager followed Earl’s instruction to call the police, Massey claimed that the manager only asked him—after having called the police!—what had happened. Luis, the young manager, was derelict in subordinating his authority to a guard—taking the guard’s side as the full story. And yet Luis and Earl would presume to call the customers guests. After being a customer of Hilton Hotels (Doubletree), Massey would be well within proper behavior to laugh out loud at the sheer presumption, for who treats a guest as Earl and Luis had treated Massey?  

In conclusion, this case strongly suggests that managers should not just take the word of their respective security guards, who likely have their own agendas (i.e., power-trips). It is the absolute power that businesses allow or enable guards to have that is so dangerous. What if the police had arrested Massey? A bad situation could have gotten much worse (with a police record). Significantly, the Portland, Oregon police did not even talk to Massey; they too took the guard’s side for objective truth. An axis can be drawn from Earl to Luis to the local police: the axis of absolute power that businesses enable. At the very least, businesses should not permit their guards to wear handcuffs or police-like badges. Once I saw this in a Target store and asked a cashier about it. “I know; it is over the top. They can’t even use those cuffs.” I asked why the show. “To intimidate customers,” she answered matter-of-factly. Target would go on in following the other herd-animal retailers to call customers guests. Intent to intimidate guests—nice!


For more on Nietzsche applied to managers, see On the Arrogance of False Entitlement, available at Amazon. For more on business ethics, see Cases of Unethical Business.

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1. Keith Allen, “Hotel Employees Who Asked Black Guest to Leave Fired,” Cnn.com (December 29, 2018).

Deaf-Signing at Mandela's Memorial and Kavanaugh's Confirmation FBI Probe: Cover-Ups?

Watching U.S. President Barak Obama speak of his hero, Nelson Mandela, on December 10, 2013, something was distracting me; the rather large man signing for the deaf used such exaggerated gestures I had trouble concentrating on what Obama was saying. Little did I know that the interpreter was a “fake,” according to the Deaf Federation of South Africa. “It was horrible; an absolute circus, really, really bad, Nicole Du Toit, an official sign language interpreter, told the AP. “Only he can understand those gestures,” she added.[1]  I suspect that labeling the fiasco a “circus” skates over the underlying mentality in over-reaching and lying to cover it up. Years later, I wondered the same thing concerning Brett Kavanaugh's nomination to the U.S. Supreme Court. Are we, the public, out of the loop concerning what really goes on inside governments? 
As soon as I read that the interpreter is a fake, I suspected that the South African government fronted the man so to appear sophisticated to the world. I recalled how just hours after Nelson Mandela died, “spontaneous” dancers in formal black dresses preformed outside Mandela’s house. I had the sense of self-aggrandizing people behind the scenes taking advantage of the obvious publicity for South Africa.
To be sure, the interpreter would explain that he had been in a schizophrenic episode while he was signing and that he could not even remember having signed afterward. Hearing this “explanation,” I suspected that with so much on the line, powerful players behind the scene may have pressured the man to lie. One American news network showed footage of the signer using strange signs at yet another occasion. Perhaps with so many schizophrenic episodes while signing, the man might have picked another profession. I suspect the mental health explanation is a fake on top of a fraud, both indicative of a broader attempt by government officials or other power brokers in South Africa to “cash in” at the nearest opportunity, regardless of any sense of solemnity at such a momentous occasion.
In 2018, the quick FBI investigation of Brett Kavanaugh's past sexual behavior was closed to the public even as U.S. senators relied on the findings, at least in part, before voting on whether to confirm him as a justice of the U.S. Supreme Court. The private nature of the report opened up the possibility that a cover-up between the Republican Party and the FBI was in the works. According to an opinion-piece at CNN, numerous sources who could have confirmed Kavanaugh's sordid behavior at a party at Yale were excluded from the interview list by the White House.[2] A lot was on the line; the high court stood to be conservative-leaning for decades. That such an outcome should pivot on a politicized nomination "circus" ought to raise enough concern; that the court's leaning could be due to a private report being a charade ought to make frustrated blood boil.
Both of these cases raise the unhappy possibility that what happens inside governments is effectively shielded from the public eye such that democratic accountability cannot function. The cases also raise the specter of outwardly nice public officials being in government anything but. Are we, the public, too gullible, or is it simply the case that people in positions of great power are not wielding it responsibly and able to get away with it? 

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Sources:

1. Kim Hjelmgaard and Marisol Bello, “Interpreter For Deaf Branded a Fake,” USA Today, December 12, 2013.
2. Frida Ghitis, "Kavanaugh Probe Was a Cover Up," CNN.com. (accessed October 5, 2018)

Foreign Policy in International Business: BP Trading a Libyan Terrorist for Libyan Oil

Senator Kirsten Gillibrand, D-NY, claimed in July of 2010 that the UK government should investigate what role BP played in Britain’s decision to free Abdel Baset al-Megrahi in August 2009. Al-Megrahi is the only person convicted of carrying out the 1988 bombing of a Pan Am airliner in which 270 people were killed over Lockerbie, Scotland. This is not to say that he acted alone. In February, 2011, Gadhafi's justice minster, Mustafa Abdel-Jalil, who resigned in protest against Gadhafi's massacre of unarmed protesters, told a Swedish newspaper that Gadhafi had ordered the attack. Abdel-Jalil also claimed that Megrahi threatened to "spill the beans" unless his return to Libya were secured. It would appear that BP, a publically-traded stock corporation, played a vital role between Gadhafi and the British government. If so, then aside from Gadhafi's sordid role, this case presents us with an issue of business ethics. Specifically, does a corporation, which is essentially private wealth but with responsibility befitting the power that comes with such wealth, cross a line when its employees engage in foreign policy? The ethical problem inherent in interfering in a juridical sentence is troubling enough; if an unelected corporation becomes so powerful that it can affect international relations between (and foreign policies of) countries, then the issue involves not only business ethics, but also democratic governance. As the line between private and public blurs, the respective bases of legitimacy can become conflated or transposed.

In May 2007, BP signed a $900 million exploration agreement with Libya. Also that month, Britain and Libya signed an agreement that paved the way for al-Megrahi’s release from a Scottish prison. A spokesman for BP has admitted that people at the company lobbied the British government over the prisoner transfer deal with Libya in late 2007, but the company’s spokesman denied that the lobbying played any role in the government’s decision to release al-Megrahi nearly two years later. Senator Charles Schumer, D-N.Y., argued that ”the whole thing has deep circumstantial evidence that points to the fact that there was a trade-off — release the terrorist in exchange for an oil contract.” Schumer and three other US senators — Kirsten Gillibrand, Robert Menendez and Frank Lautenberg — wrote to Secretary of State Hillary Clinton asking that the State Department investigate whether BP had a hand in the release. “Evidence in the Deepwater Horizon disaster seems to suggest that BP would put profit ahead of people — its attention to safety was negligible and it routinely underestimated the amount of oil gushing into the Gulf,” they wrote. “The question we now have to answer is, was this corporation willing to trade justice in the murder of 270 innocent people for oil profits?” The answer appears to be “yes.”

In an interview with the Daily Telegraph (September 4, 2009), Jack Straw admits that when he was considering in 2007 whether the bomber should be included in a prisoner transfer agreement (PTA) with Libya, Britain’s trade interests were a crucial factor. When asked in the interview if trade and BP were factors, Mr Straw admits: “Yes, [it was] a very big part of that. I’m unapologetic about that … Libya was a rogue state… . We wanted to bring it back into the fold. And yes, that included trade because trade is an essential part of it and subsequently there was the BP deal.” In short, BP employees have admitted to the lobbying and Jack Straw has admitted that BP’s contract was a factor—the two sides meet and the knot is tied.

Analysis:

Even BP’s lobbying effort was not decisive in the exchange agreement, the involvement of BP managers even as they and BP stood to gain from an oil exploration contract evinces a conflict of interest that should have been barred by ethics guidelines at the company. Moreover, the company had no standing in the prisoner exchange matter such that it had any business in lobbying. At most, the legal person legal doctrine and the associated “money as free speech” doctrine pertain to a company’s main business. The doctrines ought not give a company all rights of citizens because corporate charters are delimited to particular domains or functions. Furthermore, to expect a company to put ethics ahead of profits is to conflate a firm with a human being.  To be sure, a company is made of people (and capital). However, the association is focused rather pointedly on one thing: maximizing shareholder value through profits. Accordingly, managers know legal requirements, whereas ought and should are more difficult to translate into cost-benefit analyses. In other words, a company is like a shark in that both are single-minded feeding machines. To expect a machine to obviate its next feeding because of an ought is to treat it as something other than what it is.  I suspect that as onlookers we tend to project our own values onto company managements—even companies themselves—instead of coming to terms with what a company is.  It is a feeding machine with one directionality and an expansive appetite, which includes venturing into other domains such as (hypothetically)  lobbying for an exchange of prisoners in exchange for a lucrative oil contract. In other words, companies are designed to transgress even their own charters. They are like Hal in the film 2001—the computer that took on a life of its own. Ideally, a company would convert anything in a given society into a commodity, with price being the universal measure. The US senators are objecting, in effect, to the commodization of the prisoner exchange, and to the “boundary issues” of BP.

The “so what” of this analysis is the following: it is particularly dangerous for a company or industry to be so powerful that it can unduly influence a government both in terms of a judicial sentence and in relation to other countries. Given the expansive nature of a company, society must have a means of keeping corporations within their proper domain of providing goods and services.  In a plutocracy (rule by wealth),  private wealth is the basis of government. This is not the case in republics, which are characterized by representative democracy.

Sources:
http://www.msnbc.msn.com/id/38256677/ns/world_news-africa/
http://www.heraldscotland.com/news/home-news/megrahi-threat-to-reveal-truth-over-lockerbie-1.1087516?utm_source=twitterfeed&utm_medium=twitter

Apple’s iPhone and the FBI: Recalibrating the Right-to-Privacy

On February 29, 2016, a federal judge rejected the FBI’s request to unlock the work-issued iPhone 5c of Syed Rizwan Farook, who with his wife killed 14 people at a 2015 holiday gathering of county workers. The FBI and DEA cited the All Writs Act, a law passed in 1789 that authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”[1] The U.S. Justice Department was demanding that “Apple create software to bypass security features on the phone.”[2] In other words, Apple was to “write code that overrides the device’s auto-delete security function.”[3] In response, Apple’s lawyers argued that the statute does not give the court the right to “conscript and commandeer” the company into defeating its own encryption, thus making its customers’ “most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents and unwarranted government surveillance.”[4] Tim Cook, Apple’s CEO at the time, said the FBI “was asking his company to create a ’back door’ that could be used to unlock other phones, exposing customer data. Agreeing to the FBI's demand would set a dangerous precedent that could lead to other calls for Apple's help to obtain private information, Cook said.”[5] Only weeks later, the FBI abruptly dropped the case because the bureau had found an outside company with technology that could serve as a master key. The FBI could use the “key” to unlock any iPhone. This left customers fearful that their data was now less than private even though Apple had promoted the iPhone product as not having a “back door” In the end, “(t)he iPhone fight exposed a rift between the FBI and Silicon Valley technology companies over encryption, and sparked a debate about the right balance between privacy and national security.”[6] I suspect that although a trade-off, or tension between the right of privacy and the national-security interest of the United States existed at the time, electronic privacy would become harder and harder to protect as a result of the FBI’s tactics.  

No doubt focused entirely on national security, the U.S. government cannot be expected to protect an individual right to privacy when it is in the way. The FBI “sometimes loses sight of what is important to corporations . . .  and privacy is incredibly important," Jack Bennett, a key figure in the FBI’s iPhone hack, said after the fact.[7] Even so, he was unapologetic about the FBI being able to access the phone. “We were trying to get on one phone because we had 14 murdered people."[8] As it turned out, investigators did not find anything of significant value on the phone.[9] Even so, the damage was done as far as privacy is concerned.

Even though Bennett “disputed that the FBI was asking Apple for a tool that could access other iPhones, calling it a ‘one-shot deal,’”[10] the bureau could be expected to extend the one-shot deal the next time phone data might serve a useful purpose in preventing or prosecuting a terrorist-attack or even a lesser crime. "What's comfortable for a private corporation that will still provide an investigator the ability to stop or prevent a terrorist attack, a missing child or a national security incident?" Bennett asked.[11] The list could easily be extended; hence, some legal limitation on the FBI’s access would be necessary lest the bureau resort to clandestine data-swooping on a massive scale not limited to particular crimes and people related to them in some way.

Apple’s iPhone was supposed to be hack-proof; the company promoted the product as not having a “back door.” Even so, this turned out not to be so. It may be, therefore, that there’s no such thing as a completely secure system. Privacy may simply be an illusion marketed by the company and valued by the customers. Customers of any smart phone could feel vulnerable, moreover, as a result of the FBI successfully getting into the iPhone.[12]

Furthermore, a court can put a gag rule on a tech company, such that customers may be oblivious to any personal data being extracted. This only exacerbates the insecurity to be felt by customers regarding the privacy of their information. Microsoft had sued the Justice Department over the gag-order practice in April, 2016, “arguing that law enforcement was relying on these orders too often. Specifically, the software giant said the gag orders violate the Fourth Amendment right of its customers to know if the government searches or seizes their property and also the company’s First Amendment right to speak to its customers.”[13] Yet the gag orders could continue. To be sure, a company’s First Amendment right seems a bit of a stretch here.

Lastly, the FBI could be expected to continue to go wherever private data useful in uncovering a crime exists. For example, Open Whisper Systems, a maker of a widely used encryption app called Signal, received a subpoena in the first half of 2016 “for subscriber information, including web browsing histories, telephone numbers, methods of payment, internet providers, and data stored in the tracking “cookies” of the web browsers associated with two phone numbers that came up in a federal grand jury investigation in Virginia.[14]  Interestingly, “one of Signal’s biggest draws is that it does not collect most of that information.”[15] Civil liberties lawyers argued nevertheless that “the Justice Department request fell well outside the bounds of what is typically covered by a subpoena, including basic subscriber information.”[16] Particularly upsetting, the subpoena arrived with a court order that said Open Whisper Systems was not allowed to tell anyone about the information request for one year. Technology companies contend that court-imposed gag orders are being used too often by law enforcement and that they violate the Bill of Rights. The companies also complain that law enforcement officials are casting a wide net over online communications — often too wide — in their investigations. Justice Department officials, for their part, argue that these gag orders are necessary to protect developing cases and to avoid tipping off potential targets. The officials say that they are simply following leads where they take them.”[17]

In conclusion, even wealthy companies like Apple are no match for the FBI and the courts in protecting customer privacy. Just as companies pursue profits often single-mindedly, the FBI can be expected to attempt to uncover any lead. Furthermore, the electronic means of storing personal information may simply be too susceptible—too easily accessed by a government (and hackers)—for privacy to be at all realistic. Smartphone technology, as well as social media such as Facebook pages, is causing us all to come to terms with a recalibrated acceptance of privacy-risk and even loss. It is asking too much, I submit, for a company to be tasked with defending an increasingly antiquated expectation of privacy. As a result, we might expect people to recalibrate what personal information we are willing to put on a phone (or social-media page). The Apple case can be interpreted as one of the triggers of the societal recalibration, rather than settling the matter.

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1. Jim Stavridis and Dave Weinstein, “Apple vs. FBI Is Not About Privacy vs. Security—It’s About How to Achieve Both,” The World Post, March 8, 2016.

2. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

3. Jim Stavridis and Dave Weinstein, “Apple vs. FBI Is Not About Privacy vs. Security—It’s About How to Achieve Both,” The World Post, March 8, 2016.

4. Jim Stavridis and Dave Weinstein, “Apple vs. FBI Is Not About Privacy vs. Security—It’s About How to Achieve Both,” The World Post, March 8, 2016.

5. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

6. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

7. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

8. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

9. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

10. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

11. The Associated Press, “New FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.

12. Arjun Kharpal, “Apple vs FBI: All You Need to Know,” CNBC.com, March 29, 2016.

13. Nicole Perlroth and Katie Benner, “Subpoenas and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.

14. Nicole Perlroth and Katie Benner, “Subpoenas and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.

15. Nicole Perlroth and Katie Benner, “Subpoenas and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.

16. Nicole Perlroth and Katie Benner, “Subpoenas and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.

17. Nicole Perlroth and Katie Benner, “Subpoenas and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.

What Fabricating Dumb Lies Says about a Corrupt Public Official and Corruption Itself

You would think that a prime minister of a country would not cover an accusation of corruption with ludicrous lies. For one thing, the lies easily made transparent by fact-checking journalists would reflect back on the statement of innocence itself. Just being accused in public should prompt carefully thought-out lies because the failure to sustain the lies would naturally cause people to conclude that the corruption charge is valid. The connector here is bad character, plus the assumption that it is easy to obviate charges of corruption. This assumption itself may indicate that the office-holder believes that corruption is widespread—and from this belief can come the assumption that it is easy to get away with taking money benefitting the office-holder and spouse. The conduct of Malayia’s prime minister Razak Najib and his wife Mansor Rosmah between 2008 and 2015 bear out my thesis.

 During the seven years, Mansor racked up $6 million in credit-card debt on purchases of clothing, shoes and jewelry. At the time, she had no income other than her husband’s $100,000 a year as prime-minister pay.[1]  After all this became public knowledge, she “said she saved that money since she was small,” but that is impossible, an organizer of an anticorruption protest said.[2] Mansor is the only child of school-teachers and she had not had a regular-paying job in years. Even so, Mansor wrote in her autobiography that she had a habit of saving, and that she bought jewelry and dresses with her own money. The prime-minister’s office commented in 2015 that Mansor’s spending is commensurate with Razak’s inheritance from his father, a former prime minister. Nevermind that Razak’s four brothers subsequently “denied that their father had left a big estate.”[3] So the prime minister was lying about his inheritance and his wife was claiming that she had saved $6 million of her own money.

The allegations are very serious, hence not easily brushed off, at least ideally. They include the claims that 1) the prime minister received hundreds of millions of dollars between 2009 and 2015 from 1Malaysia Development, a state investment fund that he had set up, 2) large amounts of which wound up in the prime minister’s personal account via intermediaries, and 3) at least $1 million of his wife’s spending were paid for by her husband using credit cards that drew on 1MDB funds.[4] The prime minister’s attorney general counter-claimed that the money from 1MDB was a legal political donation from Saudi Arabia, and the prime minister had returned most of the money.[5] So the prime minister had not returned at least $1 million, and his wife had not used her own savings to pay for all her purchases as she claimed.

Taking a step back, it looks like the couple encapsulated themselves in a web of faulty lies, which in itself is audacious considering what the couple were up against. Why would the two think that such terrible lies would proffer the sort of defense that would put the corruption allegations to rest? Wouldn’t the two be especially careful in crafting a defense, given the money involved in the alleged corruption? They must have thought that simply making statements would be sufficient, and this in turn is based on the assumption that it is easy to get away with corruption. This is an indictment not only on the corruption itself, but on the couple’s character and their perception of corruption itself—as being easy to get away with either because the enforcers are not doing a good job or corruption is so widespread that chances are slim that even most of it will face prosecution. Just because modern society has progressed in some ways, such as in technology and medicine, does not mean that we have progressed against corruption. Perhaps we do not allocate enough money to enforcement, or corruption has been getting worse.

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1. Tom Wright, First Lady Draws Scrutiny in 1MDB Affair, The Wall Street Journal, September 12, 2016.

2. Ibid.

3. Ibid.

4. Ibid.

5. Ibid.

Corporate Money in Politics: Undue Influence and Conflicts of Interest

Indications of “the pervasive influence of corporate cash in the democratic process, and the extraordinary lengths to which politicians, lobbyists and even judges go to solicit money” can be seen in sealed but leaked court documents in Wisconsin.[1] This glimpse in to the real money-game in business and government shows just how much corporate money is in play. “The files open a window on a world that is very rarely glimpsed by the public, in which millions of dollars are secretly donated by major corporations and super-wealthy individuals to third-party groups in an attempt to sway elections.”[2] In addition, the files show just how easy it is for public officials to deny having been subject to conflicts of interest. The combination of a lot of money and the ability to get away with exploiting a conflict of interest is toxic to a viable representative democracy (i.e., a republic).

The full essay is at Institutional Conflicts of Interest, available in print and as an ebook at Amazon.

On the Pretentiousness of Senior Water Rights in California

California water regulators proposed a record $1.5 million fine on July 21, 2015 against the Byron Bethany Irrigation District (BBID) in the Sacramento-San Joaquin River Delta. The agency claimed that the district had defied cutbacks that the California Water Resources Control Board had ordered by diverting water from June 13 through June 25. The complaint said that Byron Bethany had consumed an estimated 2,056 acre-feet of water[1] in spite of the fact that the agency had imposed a 25 percent mandatory cutback in urban water use and cuts to major agricultural interests.[2] I contend not only that the district’s board put the interest of a part ahead of the good of the whole (i.e., the common good), but also that the board did so out of a sense of entitlement based on the sheer longevity of the water rights in the district.

The district’s diversion of water up-stream was at the expense of the farmers down-stream. Due to difficulties overall in obtaining water, farmers in California fallowed an estimated 542,000 acres (220,000 hectares) of land in 2015.[3] Almond growers planted new trees nonetheless; almonds are a premium cash-crop there. Even so, both those growers and the siphoning water-district put their own private interests above competing private interests (i.e., other farmers) as well as the good of the whole. 

California’s government was managing water overall in the fourth year of a severe drought. The task was difficult even without self-aggrandizing water-users, and the actions of the latter made it even more difficult, and thus detracted from the public good. Accordingly, the government’s decision that the fine could be as high as $5.1 million if the case goes to a hearing is justified even though the threat is manipulatory in nature.

The mandated water-cuts pertained even to farmers with water rights going back nearly a century. The Byron Bethany district fell into that category.[4] This point played a significant role in the district board’s decision to keep the spigots open for a week. Russell Kagehiro of the BBID reacted to the proposed fine by stating, “The state board is choosing to make an arbitrary example out of B.B.I.D. at the expense of our customers and the communities their hard work supports.”[5] Significantly, he added that the district “will vigorously defend its right to water and due process. The landowners and others that rely upon B.B.I.D.’s senior water rights deserve no less.”[6] That he emphasizes the district’s rights to water—indeed, senior water-rights—says quite a bit about his rationale in taking the water. In short, the underlying mentality is that of presumed superiority over not only other districts, but also the republic of California.

That California is a semi-sovereign republic in the U.S. means that the member-state has the authority to manage the water within its borders unless the U.S. Government claims preemption. Whether or not the California Government can legally override long-held water-rights is a matter for a court to decide. If that government granted the rights, then it could retract them unless doing so would violate the California or U.S. constitution. Absent such a violation, a right is a function of government or else natural. In this case, the rights are presumably contractual and thus rest on a governmental rather than a natural basis. It is in virtue of sovereignty that a government can unilaterally cancel even a contracted right, for sovereignty itself means that no higher authority exists. In modern federalism, governmental sovereignty depends on the domain in question.

Because California’s government was dealing with a drought-crisis, a strong state-interest is satisfied in overriding even long-standing water-rights within California. Moreover, given the water-crisis, the cuts had a rational basis. According to this analysis, the California Government was on solid—indeed, parched—ground in fining the district. Complementing this conclusion is the more damning observation that the district’s unilateral diverting-action based on senior water-rights reflects not only a sordid selfishness, but also a related lack of concern for the welfare of others and even for the public good. Put another way, from the severity of the water-shortage as the context, a presumptuous mentality can be derived.

By analogy, had the first-class passengers on the Titanic insisted on extra room on the limited number of small boats at the expense of the men without such senior rights (i.e., passengers not in first class), the captain would have been well-justified in stepping in to order that the boats be filled to capacity for the good of the whole. That the sense of entitlement of some might actually sabotage not only the livelihoods of others, but also the good of the whole is a testament to just how squalid the mentality is.

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[1] An acre-foot is the amount of water that would cover a square acre up to a foot high.

[2] Adam Nagourney, “California Farm District Accused of Diverting Water,” The New York Times, July 21, 2015.

[3] Reuters, "California's Drought Will Cost the State $2.74 Billion This Year, Report Finds," The Huffington Post, August 18, 2015.

[4] Nagourney, "California Farm District."

[5] Ibid.
[6] Ibid.

Beyond Facebook’s Impact on Political Polarization in the U.S.

Any time “scientists” at a company purport to have done a study involving said company in any way, the public has good reason to be suspicious of the reported conclusions. Were the folks running the company really intent on providing credible information, they would use independent scholars (i.e., not being compensated by the company). Such a management would want to obviate even the appearance of a conflict of interest—their desire to provide the public with an answer being so strong. So the management at Facebook may not have been very invested in providing the public an answer to the question: how much influence do users actually have over the content in their feeds? In May 2015, three “Facebook data scientists” published a peer-reviewed study in Science Magazine on how often Facebook users had been “exposed to political views different from their own.”[1] The “scientists” concluded that if users “mostly see news and updates from friends who support their own political ideology, it’s primarily because of their own choices—not the company’s algorithm.”[2] Academic scholars criticized the study’s methodology and cautioned that the risk of polarized “echo chambers” on Facebook was nonetheless significant.[3] I was in academia long enough to know that methodological criticism by more than one scholar is enough to put an empirical study’s findings in doubt. Nowadays, I am more oriented to the broader implications of the “echo-chamber” criticism.

Although the study’s primary question concerned how much what users see on their feeds is due to the company’s algorithm, the question of whether Facebook was a contributing factor in the increasing political polarization in the U.S. was at issue. “What we do show, very definitively,” Eytan Bakshy, who worked on the study, said, “is that individuals do have diverse social networks. . . . The majority of people do have more friends from the other side than many have speculated. We’re putting facts behind this.”[4] Facebook users who self-report a liberal or conservative orientation had, on average, 23% of their friends with an opposing political ideology; and 28.5% of the hard news that such users encountered on the News Feed cut across ideological lines, on average.[5] We know from neuroscience that the human brain privileges people who are similar, so these low percentages do not necessarily mean that Facebook’s algorithm has a contributing impact. That it could be is perhaps of more significance.

According to the 2014 Political Polarization in the American Public study by the Pew Research Center, political polarization increased from 1994 to 2014; the emptying out of a “middle” is especially pronounced among the politically engaged.[6] The proliferation of news networks specializing on particular political market-segments and the ability of social-network users to pick what they encounter are arguably contributing factors, and subtle leanings from a giant company’s algorithm could play a significant role too on an aggregated scale.

The potential in terms of political influence on a mass scale with a usership as large as Facebook’s warrants consideration, however. At the time of the study, Mark Zuckerberg, founder and CEO of Facebook, had the wherewithal to subtly push a political point by carefully amending the company’s algorithm (as well as by using his public platform). Imagine Starbucks' Howard Schultz, who had felt free to use his company (and its employees) to further political issues (and positions) he values, in Zuckerberg's position at Facebook. Would users appreciate being manipulated, subtly or not, into discussions on race that tilt to Schultz's position?[7] The impact on public policy could be astounding simply on account of the proportion of Americans who actively use Facebook. The mining of user-data would give such a CEO even more power not only over particular users, but also on a societal level.[8] The problem, in other words, is that of an unelected person having such massive political power in a viable representative democracy. Similar to the rationale of anti-trust laws, limits on the size of social-media companies in terms of usership could therefore be justified with some degree of precedent.

See also "Taking the Face Off Facebook."

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1. Alexander B. Howard, “Facebook Study Says Users Control What They See, But Critics Disagree,” The Huffington Post, May 12, 2015.

2. Ibid. I put the quotes around “scientists” to make the point that the conflict of interest renders the label itself controversial in being applied to the study’s investigators.

3. See, for example, Christian Sandvig, “The Facebook ‘It’s Not Our Fault’ Study,” Multicast, Harvard Law School Blogs, May 7, 2015.

4. Howard, “Facebook Study.” See Eytan Bakshy, Solomon Messing, and Lada Adamic, “Exposure to Diverse Information on Facebook,” Facebook Blog, May 7, 2015.

5. Ibid.

6. Ibid. See “Political Polarization in the American Public,” U.S. Politics & Policy, Pew Research Center, June 12, 2104.

7. Skip Worden, Starbucks: A Shaky Management Wading into Social Issues (Amazon, 2015).

8. Skip Worden, Taking the Face Off Facebook: Strategic and Ethical issues (Amazon, 2015).