8/25/2001

POWERBALL UPDATE: Now, of course, many ticket-buyers are experiencing depression and disappointment. That's OK -- they can douse those feelings by buying another ticket next week. Good thing there's nothing addictive about this stuff. In the words of Rev. Lovejoy from The Simpsons, "If the government does it, then it can't be immoral!"

APOCALYPSE SOON? By my watch, it's just under 30 minutes before the Powerball drawing. How many people are waiting to see if they win? How may of them realize they're more likely to be hit by an asteroid? (see below) But what you pay for with one of these tickets isn't the chance at winning -- which is incredibly minuscule. It's for the few minutes of fantasy about what you'd do if you won. The ticket just makes the fantasies seem realer. And, compared with other commercial fantasies-by-the-minute, it's pretty cheap, I suppose.

HOW'S THIS FOR A ROTTEN DEAL: First, you're abused by a priest. Then, when you sue the Diocese, you wind up having to pay its legal bills. Well, it's not quite that simple. By the time the boys were abused, he was an ex-priest, having been kicked out of the church for previous acts of abuse. The basis of the boys' claim, apparently, is that if they church had reported his abuse to the authorities, he would have been in jail and unable to have abused them. They lost, with the judge finding that too much time had passed. Hey, this is no dumber than the viral copyright infringement claim against MP3.Com!

ASTEROIDS JUST GOT BIGGER: This BBC report says that an asteroid has been discovered that is much, much bigger than Ceres, the previous record holder. Possible consequences: (1) Worried about a big asteroid hitting earth? Worry more: something this size would probably kill everything on the planet; (2) Pluto, which isn't all that much bigger than this asteroid, is more likely to lose its planet status. Boo, hiss. It was a planet when I was a kid, dammit, and it stays a planet!

AW SHUCKS, YOU'RE MAKING ME BLUSH: "Just found your website. It was mentioned in some posting at Declan Maccolough's (sp?) politech. Very nice. And you're a lawyer? Keep this up and you may give lawyers a good name." Hey -- it could happen! Well, conceivably.

BUMPER STICKER SLOGANS THAT DON'T MAKE SENSE: "Before I formed you in the womb, I knew you." Er, I know this is supposed to have an anti-abortion point. But if you take it the way it's intended, doesn't it argue that life begins before conception? (All together now: the "Every Sperm is Sacred/Every Sperm is Great/When a Sperm is Wasted/God Gets Quite Irate" song from Monty Python). I think it's from Jeremiah -- I'll look it up and see if I can add some contextual analysis.

DOUBLE-SECRET PROSECUTION: In Animal House it was a joke. For some in the federal government, it's a way of life: secret evidence in criminal cases. It's also UnAmerican, in my opinion. Invoking a rarely-used national security statute, federal prosecutors in the Scarfo case are still refusing to explain how their keystroke-logging software works. Great quote from David Sobel of EPIC: "The government elected to use this technique, and should not now attempt to hide its details under the guise of national security."

NOTE to federal prosecutors: because of all the scandals of the past decades, you don't have a big reservoir of trust to draw on. And strangely, back when federal prosecutors were highly trusted, they didn't do things like this. Say -- do you think there's a connection?

CAN A COMPANY BE LIABLE IF IT'S HACKED? Yes, says Peggy Radin a law professor at Stanford, in an article by the always-interesting Carl S. Kaplan at the New York Times. And it makes sense. If a bank routinely left the vault unlocked at night, wouldn't it be held liable? Sadly, the security at some companies isn't much better than that. That's probably one reason for the "shoot the messenger" approach to computer security warnings, as in the Brian K. West case (see below).

YOU HEARD IT HERE ALREADY: Compare InstaPundit, Sunday August 19: The big talking-point right now for Democrats is that the Bush tax-cut squandered the surplus, and that we'll have to raise taxes to make up for it. They're falling right into the trap, as Mitch Daniels let slip to Wolf Blitzer. The tax cut wasn't about fiscal management: it was about taking the money off the table so Congress couldn't spend it. That part isn't news. What's news is that they're willing to say it. with this article from the New York Times today. Key Quote: President Bush said today that there was a benefit to the government's fast-dwindling surplus, declaring that it will create "a fiscal straitjacket for Congress." He said that was "incredibly positive news" because it would halt the growth of the federal government. Advantage: InstaPundit! Also, as in his Tuesday budget speech, Bush stressed the likelihood that Congress would yield to "temptation." Expect him to hammer away at Congress's untrustworthiness, subliminally taking advantage of the damage done to Congress's reputation by you-know-who.

TERRIFIC REVIEW OF FUGITIVE DAYS, Bill Ayers' self-serving memoir of the Weather Underground, by Tim Noah in Slate. It so happens that I grew up in that milieu, around Black Panthers, White Panthers, SDS, and even the occasional Weatherman. (My father was a moderately famous antiwar protester, but that's another story). Noah is absolutely right about the moral cluelessness of these people. That was apparent to me at the age of eight (probably moreso than to many adults at the time). Another interesting memoir of the crunchier, deadhead side of the counterculture, Sarah Beach's Curse of the Hippie Parents appeared in Salon earlier this week. Although my childhood was less free-range than Beach's, I recognized a lot of the players, the milieu, and the unattractive view it presented from below. I don't agree with the full-tilt hostility toward the counterculture that many of Slate's "Fray" writers expressed, though. As one of my friends says, if the Fifties were as great as they say, why did we have the Sixties? The counterculture was waiting to happen, and it happened not just in the United States, but pretty much throughout the Western world, making it not just an American phenomenon. (One can hardly blame Paris '68 on LBJ and Vietnam).

What I can't understand (because I wasn't raised in the 1950s, I guess) is how so many people couldn't seem to relax the old rules on things like sex without relaxing all the rules -- not just the stupid ones. Nihilistic freedom is, however, a great test of character. It took character to rebel against conventional morality in the 1950s. It took character to act morally in the late '60s and -- especially -- in the decadent phase of the counterculture from '71-'74. And to be a (successful) revolutionary, one must be especially moral. There weren't many of those. The folks raised in the conformist Fifties tended to conform even in rebellion, getting divorced, experimenting with drugs and (almost always disastrous) "open marriage" arrangements in a weird sort of lockstep. Most of them did these things without thinking them through, and paid the price. So did a lot of their kids. I came through it okay, but I know a lot who didn't.

8/24/2001

BRIAN K. WEST UPDATE: Apparently, all sorts of people read InstaPundit. I got the email set out below this evening from Sheldon Sperling, the U.S. Attorney involved in the case, which involves a computer tech who reported a security problem and then was treated like a criminal. The attached press release does not mention the report that West's attorney was contacted by someone in the U.S. Attorney's office who tried to get him to accept a felony conviction and five years probation -- which, frankly, sounds too severe even for a conviction based on the facts we know. Perhaps, however, this is an indication that the U.S. Attorney is bringing this matter under some sort of rational control. (Note, however, that my commentary was on Sunday the 19th, not Wednesday the 22d) Read on:

[Begin message from Sheldon Sperling]
As per your commentary on Wednesday, August 22, 2001, you may wish to factor in the following. Thanks for your consideration. sjs

NEWS
RELEASE

U.S. Department of Justice
Sheldon J. (Shelly) Sperling
United States Attorney
Eastern District of Oklahoma

(918) 684-5100
________________________________________________
For Release: August 24, 2001

For Further Information Contact: Sheldon J. (Shelly) Sperling, United States Attorney

MUSKOGEE, OKLAHOMA - An article posted on the internet last Friday reported that an internet service provider employee is alleged to have penetrated a hole in the comparative security of a newspaper's website, employed a userid and a password, and downloaded a valuable computer program. The employee reported the penetration to the website owner to include site insecurity, access using user names and passwords, and downloading the program, but claimed his intrusion accidental. The website owner reported the alleged intrusion to law enforcement authorities.

Pursuant to a complaint to law enforcement officers, an application was made for a search warrant. A United States Magistrate-Judge ordered a search of the employee's place of business. A website's computer program was found on the employee's laptop. A copy of the search warrant was left with the employer as provided by law. The employee was not arrested and has not been charged.

Investigation into the allegations is pending. A very substantial portion of the investigation, to include interviews with witnesses, is not yet public and is ongoing. The question under investigation is whether valuable intellectual property has been improperly converted.

More particularly, the purpose of the investigation is to determine: (1) whether the employee intentionally accessed a computer without authorization or exceeded authorized access (to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter), (2) whether the employee thereby obtained information from a protected computer (a computer which is used in interstate or foreign commerce or communication), and (3) whether the conduct involved an interstate communication. 18 USC 1030. Only if all three questions are answered in the affirmative has a criminal offense been committed.

Even where there is probable cause to believe that a person has committed a criminal offense in the Eastern District of Oklahoma, a prosecutor must consider whether to: (1) request or conduct further investigation, (2) commence or recommend prosecution, (3) decline prosecution and refer the matter for prosecutorial consideration is [in] another jurisdiction, (4) decline prosecution and initiate or recommend pretrial diversion or other non-criminal disposition, or 5) decline prosecution without taking other action.

A suspect's intent, the amount of loss occasioned by the behavior, and the context of the alleged offense are among many factors that are within the scope of the investigation and weighed in such prosecutorial decisions. Only after all these standards and issues have
been considered would the United States Attorney's Office for the Eastern District of Oklahoma prosecute an individual for a criminal offense.

Pursuant to the employee's telephone call to our office, we sent him a letter containing an invitation to appear before the grand jury to answer questions concerning this matter, written advice of his rights, the option and importance of retaining counsel, and the prospect of an agreed plea. No final decision has been made or agreement reached to resolve this matter.

Because of the public interest in this matter based on hundreds of individuals who have written me about this matter and the publicity which has been generated, I am providing limited comments on this matter during the investigation. The purpose of the investigation is to determine whether the allegations warrant further action in a criminal setting.

Thank you for your interest.

--

Shelly

RAVE FOLLOWUP: As an article by Gwen Filosa in the Times Picayune reports, federal District Judge G. Thomas Porteous, Jr. has ordered the federal government to drop its prohibition on glowsticks, pacifiers, bottled water, etc. at raves at the historic State Palace Theater. The prohibition was found to violate the First Amendment. It's nice to see some common sense (and constitutional law) finally being brought to bear on this situation, which is a tremendous waste of taxpayer money -- not to mention fundamentally unfair. The suit was brought by the ACLU, which deserves credit for fighting the good fight here. Unlike the promoters, who could challenge the government's face-saving plea bargain only at the risk of ridiculously long jail sentences (potentially 20 years), the ACLU was free to make the case. Bravo.

SOFT-PEDALING CHINA: SmarterTimes is reporting two interesting facts: the New York Times is the only major American paper on the Web not blocked by the Chinese government. It's also soft-pedaling treatment of China, and especially Jiang Zemin. Coincidence?

MORE BAD FBI NEWS: I don't mean to run so many of these items, it's just that there are so many to run. The Washington Post has a story by Joe Stephens on the FBI's long-standing vendetta against Al Gore, Sr. J. Edgar Hoover was apparently ticked off by Gore, Sr.'s denunciation of Bureau rumor-mongering. The result was a decades-long policy of stalking Gore and gathering information on him. The reports cited in the story are just pathetic, not least in their transparent sucking-up to Hoover. The important thing about this story is that it's not an aberration: we've seen so many stories like this that it's obviously a pattern.

Now I have mixed feelings: a few of my former law students are now FBI agents. They're smart and honest, and as best as I can tell they're being treated pretty well -- even one who is openly gay. But that's of a piece with the FBI tradition: excellent worker bees and horrible management. The question is what to do about it. When you recognize that the FBI's history -- from its vice-cop role in selectively enforcing the Mann Act at its outset, to the Palmer Raids against suspected thought criminals in the 1920s, to the Hoover era, to COINTELPRO, to the FBI Crime Lab scandals, to Ruby Ridge and Waco (not to mention the Hanssen spy affair, the O'Neill data-loss incident, etc.) -- you just have to wonder if the FBI should exist at all. Perhaps it should be dismantled, with its lower-level people shared out to other federal law enforcement agencies and its upper-level people retired.

Will this happen? Not likely. A lot of politicians are still afraid of the Bureau. Though the FBI's ability to tar people with scandal would seem to have diminished a lot given the scandals it has suffered.

UPDATE: Oh, the FBI does plan to extend its "Carnivore" program to wireless communications. Oh yeah. I trust 'em.

GOT DICK? According to political reporter Tom Humphrey of the News-Sentinel, rumors are swirling around Nashville that embattled Republican Governor Don Sundquist has hired political wizard Dick Morris to help revive his sagging fortunes. According to Humphrey, the rumors are false. God knows Sundquist needs the help.

Another tidbit from Humphrey: Former Presidential candidate, and former UT President, Lamar Alexander is thinking of running for Fred Thompson's Senate seat if Thompson doesn't run. Naturally.

THE PARASITES TAKE A BYTE: There have been a lot of hoaxes about Internet taxation, but this is no hoax. As Dave Kopel and Jennifer Holder report in the National Review Online, there are serious proposals to impose a global bandwidth-based "byte" tax, with the money used to support bloated and corrupt international bureaucracies -- er, I mean to help the disadvantaged. The article contains copious links to primary sources in the form of U.N. & E.U. documents, etc. Disturbing reading. Is Jack Valenti somehow behind this?

Great conclusion: "Want to broaden the beneficent global network of e-commerce, and enable billions more people to join the digital revolution? Want to protect American prosperity? Then ensure that the United Nations -- and the rest of the international parasite class -- are kept as far from the Internet as possible."

UPDATE: Sharp-eyed reader Richard Riley points out that there is an important distinction here: between taxation of the Internet, and the application of, say, sales or value-added taxes to things sold over the Internet. The former is just plain bad. You might oppose the latter, say on "infant industry" grounds, but it's fundamentally different: a question of treating the Internet like everything else, rather than of taxing it directly. He's right.

THE SPACE PROGRAM is probably worth it just for the entertainment value alone. Not that there aren't lots of better reasons, but these pictures of the Jovian moon Callisto are amazingly cool. And at a cost to taxpayers of what, probably about a quarter each? Great stuff. Though I still want my vacation on the moon.... Or at least some less expensive form of space tourism. Perhaps, one day, we'll have submarines on Europa.

GREAT NEWS -- well, for me at least. With the economy slowing and the dot-com bubble deflated, people are going to law school in increasing numbers. As someone in the business of selling law degrees, I approve. Actually, I have several students who cashed out of dotcoms last year and who are congratulating themselves on their wisdom. Next year I'm sure I'll have several who didn't cash out, and who wished they had. That's okay: we'll teach 'em either way.

YOU HEARD IT HERE FIRST: But here's Robert Reich in the Los Angeles Times today: "By centering their criticism on the likelihood that Bush will unbalance the budget, Democrats are springing a fiscal trap on themselves." Yep.

ACADEMIC SATIRE IS DEAD: Mostly because the academic world has become its own best, if unconscious, satirist. One need look no further than a book entitled Our Monica, Ourselves: The Clinton Affair and the National Interest (NYU Press), a collection of ruminations on Bill Clinton as -- no, really, -- the first gay President..

Toni Morrison, of course, once called our Bill the "first Black President." But two queer theorists (note to non-academics -- this is not a slur, but the name of the field) and the authors in their volume are claiming Bill for themselves. Best quote: "[T]he bestowal of a copy of Walt Whitman's Leaves of Grass by William Jefferson Clinton on Monica Lewinsky and a rim job by Monica Lewinsky on William Jefferson Clinton. Any queerly enculturated gay man will recognize the acts and the objects." Also present: a defense of the "lookism" employed to marginalize Linda Tripp. Lookism is bad, we're told, but sometimes ugliness genuinely reflects the soul. Which I suppose means that Tripp's soul is in a lot better shape after all that plastic surgery.

8/23/2001

A CONUNDRUM: Why does America produce the world's best scientists, but a scientifically illiterate populace? This article in Technology Review asks that question. One answer: bad teachers. Elementary education, author David Goodstein says, is one of the few majors that will get you out of college without taking any science classes. Thus it's attractive to science-phobes. Also, an undergraduate science degree is still seen mostly as a path to graduate school and a Ph.D. Thus, we don't get that many people who major in sciences and then go on to non-science fields. (From my own observations, though, undergraduates are beginning to see the possibilities of a science major in moving them to fields like patent law and biotech business).

Some of the fault, as Goodstein admits, lies with professors in the sciences who see teaching non-major undergraduates as a burden, dumping the work off on teaching assistants (often foreign and heavily accented), which tends to turn off students. If they treated science education for nonscientists as important, so would many nonscientists.

LABOR'S LOVE LOST: In a valiant but doomed effort, David Moberg tries to defend John Sweeney's tenure at the AFL-CIO. But despite all the sweetening, the cup is still bitter: organized labor is increasingly marginalized and unimportant -- not just to the nation, and the political scene, but to workers. Organized labor is still set up to represent people who plan to be meatcutters their whole lives. But the modern workplace doesn't work that way. People change jobs a lot. Most floor workers in industry expect to move up -- and a lot do. Employers -- and employees -- have little patience with rigid work rules and tight seniority systems, which seem stupid and counterproductive. Work, as Andrew Sullivan pointed out in an item I noted a few days ago, is an American civic religion. Things that get in the way of getting the work done are disfavored, not just by bosses, but by workers. The unions haven't caught on to that yet. Until they do, they'll continue to shrink in relation to the work force, and to flourish mostly in places where people care less about the work. Which, perhaps, is why public-employee unions are the AFL-CIO's main source of growth.

MORE THUGGERY: Refreshingly, not from the MPAA or RIAA this time, but from the DC Police, who apparently ran an illegal towing scam in cahoots with some towing companies. The District of Columbia: not a showplace for good governance. QUESTION: In some cases, legally parked cars were towed, and owners were not told what had happened, meaning that their cars were never recovered. Why isn't the FBI investigating this as auto theft? Want to bet that the cops involved will mostly slide by with administrative punishments or none at all?

The Rolling Stones said every cop is a criminal. No, but in D.C. they're trying...

PUTTING IT INTO PERSPECTIVE: Great opening sentence in this oped by Dale McFeatters of Scripps-Howard: "You know the country must be in reasonably decent shape when President Bush and the Democrats are arguing over who is to blame for the second-largest budget surplus in U.S. history." Excellent point. Now let the gloom-and-doom resume.

WHAT, EXACTLY, IS PEDOPHILIA? Is it just having sex with someone under 18? Andrew Sullivan implies as much in an item on an article by David Klinghoffer in National Review Online. But Klinghoffer is writing about female teachers having sex with teenage boys. Pedophilia is having sex with children. Teenage boys -- who in Rome would at 14 have been old enough to marry, form contracts, and join the legions -- aren't children. (Neither are girls, though the Romans didn't treat them as well). The law, typically, distinguishes between child molestation (very, very bad) and consensual underage sex (somewhere between bad and naughty).

I expect that Klinghoffer is right when he says not much harm will come to these boys, and I imagine that Sullivan actually agrees. In our current weird mixture of permissiveness and hysteria, we seem resigned to the idea that teenagers will have lots of sex (and indeed build whole pop-music genres on jailbait sex appeal) while at the same time maintaining a censorious attitude that conflates naughty sex with genuine child abuse.

A hundred years ago, teenage sex was, well, sex: most people married in their teens. Now, teens mature much earlier, and marry later. Why, then, do we treat them like children? Is there some sort of baby-boomer thing going on here?

CAN LIDDY TAKE JESSE'S PLACE? Expect to see some unflattering stories about Dole's tenure at the Red Cross. Will it matter? Maybe, but probably not -- the Senate, to put it mildly, isn't an administrative position. I've never been terribly impressed with Dole's prior candidacies, but I don't know who would beat her. UPDATE: She apparently is switching registration to support a run. No big surprise, but there you have it.

MORE OF THE CORPORATE GUILTY-UNTIL-PROVED-INNOCENT ROUTINE: Claudia Rosett writes in Opinionjournal about her experience with AT&T.; One day her long-distance was shut down. Seems AT&T; claimed it never got the word when she switched to MCI, kept billing her, and then got her local phone company to shut off her service because it wasn't paid. Naturally, AT&T; considered this whole affair her problem. It's stuff like this that makes me more sympathetic to class-action suits than I otherwise would be. It's not that those are good -- it's just that they're almost the only thing that reins in this kind of behavior.

FROM THE MAILBAG: Reader Richard Riley suggests that Strom Thurmond may not be in good enough health to respond to Helms' retirement. Perhaps -- but surely he would have retired if he were too ill to serve properly? (Yes, I know that was a cheap shot).

Reader Martin Pratt, a solicitor in London, writes that my indignation over CCTV cameras is "tremendously overstated." He notes that police must have permission from the borough council to put up a camera, and can't do so on their own. He also shares a link to a streaming feed from one such camera in his neighborhood. I hope that he's right, but I must say that I don't view these developments with his equanimity. The camera link is cool, though. Pratt does make the important point that the European Convention on Human Rights now offers something of a check on these activities, and he is absolutely right about that. Nonetheless, from my none-too-positive perspective on bureaucracies, I find that information, once gathered by the government, is inevitably used in ways the government promised it would not be. (Witness the use of census data to track down draft-dodgers).

IF YOU CAN'T GET THROUGH TO THE SALON STORY on MPAA thuggery that I write about below, it's because it's been featured on Slashdot, which practically guarantees a server overload. Try again later. I also recommend clicking here to see what the always-informed Slashdot crew has to say.

THE AMERICAN EMPIRE: Tom Ricks had a very interesting piece in Tuesday's Washington Post (which I missed and only just read thanks to a ref. on NRO) about the yeas and nays on American global hegemony. Some parts are obvious (the Chinese and Russians don't like it) but the real debate is American. Great piece from a very smart and thoughtful guy: I just read his A Soldier's Duty, which I found chillingly realistic (I read some military email from time to time, and he got the tone just right). One interesting point: the Framers of our constitution were deadset against us becoming a global superpower. Many parts of the Constitution that are derided as "outdated" because they conflict with such a role don't conflict because they're out of date: they conflict because they were designed to conflict.

Personally, I think that all this "national greatness" conservatism has what Ricks properly calls a "return-to-the-raj" kind of air to it. Which raises the question: what, exactly, did Britain get out of its Empire? Not a hell of a lot, as far as I can tell. It was a losing proposition economically, and when it receded it left Britain in many ways worse off on the world stage than it had been a century earlier. I can't help but notice that most of the enthusiasts for American empire are middle-aged men with no military background. My advice: get a sports car, guys. They make you feel powerful, but they're cheaper than empires. Safer, too -- at least for everyone else.

WHAT'S MISSING FROM THE COVERAGE OF JESSE HELMS' RETIREMENT: A reaction quote from Strom Thurmond! I've looked, and haven't found one anywhere. (If you have, email me and let me know!) Thurmond must wonder why Helms is retiring at such a youthful age, and how he plans to fill the empty decades to come.

TERRIFIC COLUMN IN SALON about one innocent party's (the writer, Amita Guha's) run-in with the Motion Picture Association of America's "Piracy" Thugs. Yeah, I know, I keep calling the MPAA and the RIAA "thugs," but it's the most accurately descriptive word available. The ability of these outfits to conscript others into a system of extralegal enforcement without due process needs more examination. (It is, I think, a rich potential lode of lawsuits for tech-savvy plaintiffs' lawyers, too.) In Guha's case it was obvious that she wasn't guilty of anything, but the MPAA's approach was to get her boyfriend's (and her) Internet service shut down and then demand that they prove themselves innocent. Tarring and feathering is too good for these guys. (Great line from one of the MPAA's people: "Kutner then said that if my friend were truly innocent, he wouldn�t have anything to hide." -- This from someone who had just refused to answer questions on how he'd gathered data about people's Internet usage).

Her conclusion: "This article does have a point, but it�s not about piracy. It�s about a flawed piece of legislation that allows a person to be penalized for an alleged action before he has the chance to defend himself. The moral of the story is that the DMCA allows you to be tried and judged guilty before you even know what has happened. The MPAA could have my account shut down immediately -� or yours -� and there�s nothing any of us could do to stop it."

A recent profile of Record Industry Association of America lobbyist Hillary Rosen reveals that her organization has become so unpopular that staffers won't admit who they work for, or wear RIAA t-shirts in public. Say, isn't that a bad position for a lobbying organization to be in? Maybe there's a reason why people hate these guys so much. Maybe it's because they're UnAmerican Thugs who trample on privacy, free speech, and due process! Oh, and they screw the artists six ways from Tuesday, too.

The more they're hated, the bigger the percentage for the Bush Administration in taking these industries on for the violations of antitrust, fraud, and racketeering laws that they're almost certainly guilty of. And why not -- they're a Democratic fund-raising stronghold anyway! Take it away, John Ashcroft!

CHARACTERISTICALLY SANCTIMONIOUS OPED by George Annas in today's New York Times. After reviewing the progress of Robert Tools' artificial heart experience -- with which Tools himself seems very happy, Annas concludes: "The limits of what doctors can do to human beings in the name of science are a matter for public decision and public accountability. It is too early now to declare the AbioCor either a success or a failure. But before this device is implanted in anyone else, we need full disclosure, objective observers and a realistic assessment of the way it has worked for Mr. Tools."

Why exactly is this a matter for "public discussion and accountability"? Perhaps (call me a cynic) because if the matter is left to patients and their doctors there would be no role for professional ethics-mongers like Annas? Remember: ethicists have conflicts of interest too, one of which is a natural tendency to frame questions in ways that require the services of an ethicist in reaching an answer.

And what's this about doing to human beings? From what I've read, it seems to me -- and to Tools, which is more important -- that the doctors have done something for Tools. Thanks, George, for demonstrating the intellectually lame, question-begging nature of most professional bioethical discussion today.

IS THERE A PLOT to kill Saturn? (The car company; the planet is safe for now). Mickey Kaus has argued that there is, more than once. But now, according to the New York Times Saturn is "flourishing" by becoming more like the rest of GM. To me, this sounds like propaganda from within the GM machine -- but hey, I could be wrong. Though as I noted below, Hyundai is making cars with a lot better fit-and-finish than lots of GM's products.

I will say that a recent experience with a Saturn dealer did suggest that they're more like GM: in the process of negotiation (which happens, no matter what they say), the keys to the trade-in, in which we'd arrived, disappeared, conveniently stranding us with the lowballing, double-talking salesman for over an hour until I threatened a lawsuit for false imprisonment or trespass to chattels (being a law professor pays, occasionally). The keys reappeared, and we disappeared. If this is happening in Saturn dealers very often, I wouldn't give a dime for their future.

8/22/2001

A MILESTONE: InstaPundit is two weeks old! And for those two weeks, it has flourished despite being one hundred percent C*ndit free! Okay, I kind of mentioned his name just now, but I couldn't figure out any better way to say it. Somehow, though, I've managed to find other things to talk about -- and I'll keep doing that, at least until there's something worth saying on the subject. Note to CNN, FoxNews, etc.: you could do this too, if you wanted.

But thanks for the traffic (pushing toward 1000 hits a day), for all the nice emails, for the "Best of the Web", the Blog of Note award, and for the cool plugs in Slate. That's a lot more than I expected.

BOND RATINGS AND POLITICS: According to this article in the New York Times by David Firestone, Tennessee's bond rating is slipping because it doesn't have an income tax. However, according to this article by influential Tennessee political commentator Frank Cagle, one reason why the bond rating slipped was that the Governor's staff jawboned the bond-raters into doing it so as to strengthen the case for an income tax.

I don't know the truth of this. But I do wonder: Cagle is very well-known in the state, and this column has been available on the Web since last week. So how come neither it, nor this possibility, is mentioned in the Times article? Do they have Google at the Times?

GLOWSTICKS AND BOTTLED WATER: DRUG PARAPHERNALIA? That's what the New Orleans U.S. Attorney's Office says. Earlier this year, they prosecuted two concert promoters and the manager of the historic State Palace Theater for violating the federal "crackhouse" law, which prohibits people from owning or maintaining a building for the purpose of drug consumption. The feds' theory: rave promoters know people may do drugs at their events, so they're in violation of this law. The U.S. Attorney, Eddie Jordan, said that the presence of "drug paraphernalia" like glowsticks and "overpriced" bottled water proved that the promoters and manager knew there were drugs there. (Doesn't Jordan know that "overpriced" bottled water is, well, the only kind of bottled water there is, especially at public events?)

The case ended in what Time Magazine called a "fizzle," with a face-saving plea bargain that amounted to little more than a promise by the theater not to allow glow sticks, etc. Now the ACLU, bless 'em, is challenging this as a First Amendment violation. Eddie Jordan is no longer U.S. Attorney, but his deputy, Jim Letten, seems to be carrying this dumb project on as some sort of personal crusade. If there's any justice, the courts will strike this down and send the New Orleans U.S. Attorney's Office back to prosecuting real criminals. Or if they're out of those, they can just return part of their obviously-bloated budget to the Treasury, to help fund a tax cut.

AL GORE'S CAREER: Andrew Sullivan makes an impassioned argument that Al Gore shouldn't run for President. I think he's wrong. Gore's native land needs him, crying out for him to succeed an administration riddled with sex scandals. Where? At the University of Tennessee, of course. (What did you think I was talking about?) The position of University President is vacant (best not to go into details on why) and Al might be just the person to fill it: he's written books and articles, has a lot of experience with budgets and legislatures, and, as we know, a whole lot of experience with raising money. And, as Sullivan points out, he seems more comfortable in academic settings anyway. You can nominate Gore for the UT Presidency here if you like. Another reason for Gore to be President at UT: with his experience in the Clinton White House, he'll know how to handle things at America's Number One Party School!

CREATIVE LAWYERING: As a musician (and an ASCAP member songwriter/publisher), I love MP3.com. But as someone in the business of selling law degrees, I ought to really love them. Thanks to their "beam-it" virtual-locker service, which always seemed dumb to me anyway, they've become a full-employment act for lawyers. The latest lawsuit, which strikes me as bizarre, names them as a defendant for "viral copyright infringement." The idea, basically, is that the beam-it system was so easy to fake out that it let people download songs they didn't own. Then, the plaintiffs argue, some of these people probably made those songs available on Napster, which means that, somehow, MP3 owes them money.

I've said it before, but intellectual property litigation would be a good place to experiment with a "loser pays" approach to lawsuits. Given the thuggish use of lawsuits by the MPAA and RIAA, and the blatantly opportunistic use of lawsuits in cases like this, there needs to be some way of requiring a bit more responsibility.

SPEAKING OF SLATE, today's "Breakfast Table" feature (which true to form didn't start until after I had had lunch) has an excellent political observation by Jonathan Lear: "Is there anyone in the party who can provide an articulated vision of Democratic ideals? If all the Democrats can do is make fun of Bush or resort to scary code words like "reckless," then they are going to lose again." This is absolutely right. It's not quite true in politics, as it is in science, that it takes a theory to beat a theory. But it's close. If you don't have a platform of your own, you have to scare the bejesus out of people about the other guy. That can be done, but I don't think it will work with Bush. He's just not scary. And he's even harder to make scary when you've spent a lot of time telling people how dumb he is.

THANKS TO SLATE for mentioning InstaPundit in its Best of the Fray section this week. I believe that Slate's reader forum is one of the best things on the Web, and that it makes Slate one of the best 'zines on the Web. I've been a devoted Frayster for years, and I intend to remain one.

FIRST JAMES DEAN'S CIGARETTE, NOW "E.T.": Speaking of cultural gun-phobia, Steven Spielberg is reportedly going to reissue E.T. with all the guns digitally removed. Federal agents who raid the place will now be brandishing ... walkie-talkies. Er, federal agents do carry guns on raids. Lots of 'em. Stephen: If that bothers you, you should try editing the law, not the movie.

And isn't there something slightly creepy about going back and re-editing these old movies to make them fit in with modern PC sentiments? This seems like Stalinist airbrushing to me. That better technology is involved makes it creepier, not better. At least with the old approach you could tell something funny was going on.

MORE GUNS, LESS CRIME: This article from my hometown newspaper tells a surprisingly common story: a couple taking out cash from an ATM were approached by armed would-be robbers. The husband, who had a concealed weapon permit, replied by shooting one of the robbers (the other fled). Not only was this crime foiled, but it must surely discourage others like it. (In this heavily-armed area, nearly all of our "home invasions" involve criminals who are passing through from up north, and they wind up shot more often than not. The local criminals generally know better.) This is an illustration of what Yale scholar John Lott has found in his research: states that, like Tennessee, have liberal policies toward issuing concealed weapons have less crime than those states that limit permits to politically-connected big shots. Being a mild-mannered law professor, I don't carry a gun. But I'm safer because other people do. I'm happy to see that the Democratic Party is beginning to see reason on the gun issue, rather than giving in to the culture-warriors on the left. Even Joe Lockhart, who by his own admission thought the gun issue was a campaign-winner, now admits it was a loser. Yep.

CREEPING NAZISM: Okay, not really. But I have watched the growing use of surveillance technologies and the decline of civil liberties in Britain with dismay, and now it seems to be spreading to the whole EU, as this article concerning a new, transnational European surveillance net points out. Quote: "Thomas Mathieson, professor of sociology of law at the University of Oslo, said police could have access to "very private information" about people's religion, sex lives and politics. 'It is a very dangerous situation from the civil liberties point of view,' he said." Indeed.

CONTROLLING THE RABBLE ISN'T SO EASY: Excellent column by Moira Gunn on the efforts of governments -- especially in Asia -- to censor the Internet. Her conclusion: the governments are losing. She also links to this Mercury News article by Mark McDonald. Well worth reading. Also, here's an item on Singapore's government promising to lighten up on speech restrictions, which I found courtesy of Andrea See's always-interesting website.

BLOOD BANKS TURN AWAY DEPOSITS: Back on August 15 (or go to the archive and find the post titled "Blood and Iron") I noted the looming blood shortage -- especially in New York -- stemming from restrictive rules about blood donation. There's an excellent (and far more detailed) treatment of this issue in today's National Review Online by Julian Morris. Morris asks the key question: "Imagine you are about to die from a life-threatening condition that could be prevented by a blood transfusion. Would you want the transfusion to be delayed by several hours, so the hospital could wait for blood from a vegan who's never travelled abroad? Or would you be willing to accept the unquantifiably small possibility that the blood you receive is contaminated with vCJD?" I think Morris is right. I don't know what precise level of precaution is appropriate for CJD (though my own suspicion is that it will be the Swine Flu of this decade) but I do know that the controlling consideration should be risk versus benefit, not bureaucratic ass-covering. In the meantime, I'll be donating blood more often. If you can, you should too.

SPEAKING OF LEON KASS: Virginia Postrel has a list of suggestions -- both her own and her readers' -- for Leon Kass's bioethics committee. I like a lot of these names. Whether we see these people, or people like them, on Kass's commission, or just the usual suspects from the pro-life and anti-tech green communities, will tell us whether Kass is really "morally serious." Interesting observation from Virginia: All the people she and her readers mention have their own web pages. Kass doesn't have one.

TERRIFIC STORY in the New York Times about Robert Tools, the recipient of the first self-contained artificial heart. Quote: "I realize that death is inevitable, but also I realize if that if there is an opportunity to extend [life], you take it, and that is what I did." Leon Kass and Daniel Callahan think that this sort of thing is wrong, and that people should allow the shortness of life and the nearness of death to increase the piquancy of every moment. Yeah, right.

THIS DOESN'T COMPUTE: We made it through World War Two and the Cold War without anything like an "Official Secrets Act." Now the CIA and FBI are trying to get one passed. My suggestion: let's wait until they can keep track of the moles and lost laptops in their own ranks, before they put any new restrictions on the rest of us. Jeez.

8/21/2001

TWO PROBLEMS WITH this item from The New Republic on Rush Limbaugh's discussions with CNN. The core message, that Limbaugh isn't a journalist, but an entertainer, is basically right. So what are the problems? First, it assumes that there's a lot of other journalism on CNN. Has TNR watched CNN lately? Most of the shows have nothing to do with journalism: I mean, Larry King a journalist? Greta van Susteren and the "Burden of Proof" crew? "Style with Elsa Klensch"? CNN has about as much actual journalism these days as MTV has music videos. (The same is true at other networks: Katie Couric a journalist? Geraldo?)

Second, the piece castigates Limbaugh for factual errors, as if this were unusual in "real journalism." Hellooo -- respectable "journalism" is full of errors. The New York Times once managed to change my name to Glenn Roberts -- while quoting from a letter (nominating Arthur C. Clarke for the Nobel Peace Prize) that had my name on the same page as the passage they quoted. (They didn't run a correction, either.) At any rate, the item is hardly mistake-free itself: one of Limbaugh's alleged errors is saying that volcanoes, "not man-made greenhouse gases" deplete the ozone layer. Well, actually, volcanoes do deplete the ozone layer, and man-made greenhouse gases don't -- unless you want to stretch a point and grant that CFCs (which are the primary manmade agents of ozone depletion) have some minor greenhouse effect, which they do. But CO2 & methane, the main greenhouse gases, have no effect on ozone at all, and CFCs, which destroy ozone, make only a minimal contribution to the greenhouse effect.

"Real journalism" is full of mistakes and omissions all the time. Still, I wish we saw more of it. At CNN. At CBS. Even at The New Republic.

DOCTORS AND DENIAL: According to this article in the New York Times, doctors often ignore warnings about drug side effects. That's been my experience. I have a number of friends and relatives who experienced serious side effects from medications, despite their doctors saying the meds couldn't be the source of their symptoms -- until they stopped the drugs and the symptoms went away. I think that (1) the side effects genuinely are rare, and doctors tend to play the odds; and (2) psychologically, they simply hate to think that something they prescribed could be making a patient sick instead of better. A genuine problem, that should be addressed, in part, by empowering pharmacists, who are generally better on this. Maybe because they have more training on drugs, and maybe because they have more psychological distance.

AN AMAZINGLY COOL SITE is run by SpaceImaging.Com -- where you can download free, high quality satellite photos taken by private "spy" satellites. (SpaceImaging will take custom images of any place you want, too -- but that'll cost you some thousands of dollars). This is imagery as good as supersecret spy satellites produced a few years ago, and now it's available to almost anyone. Yet another way technology is eroding old monopolies.

ABIGAIL TRAFFORD is speaking up for Andrea Yates in the Washington Post today. She says that the backlash against Yates will do harm. Well, maybe. But most of the backlashers are asking this question: what if a man had done this? In her column, Trafford sympathizes with Yates, and reminisces about the difficulty Trafford had being a NASA mom staying home with kids, with a husband "working long hours at the space center." Had her husband snapped under the strain of those long hours, would there have been an army of male pundits coming out to defend his actions, to cluck about the difficulties of testosterone-induced rage, to blame society for not taking better care of breadwinners?

Well, actually, we know there wouldn't be. No one has come out to defend Nikolai Soltys, the Ukrainian immigrant who murdered his family in California. What bothers the backlashers on the Yates case isn't so much the sympathy displayed by her defenders -- it's the selectiveness of that sympathy. As Patricia Pearson notes in her book When She Was Bad: How and Why Women Get Away with Murder, society is unwilling to reject its stereotype of women as helpless nurturers, and will explain away crimes by women that it would swiftly condemn if committed by men. Feminists have been telling us for years that we should abandon stereotypes and accept women as whole people, with the full range of capabilities. That includes the capacity to do wrong, without being excused on the basis of gender.

IS THE PRO-LIFE ERA OF THE GOP OVER? That's what Tod Lindberg writes in the Washington Times. I think that's a bit of an exaggeration. But as I said below, the stem cell issue has isolated the hard-liners, something Lindberg says too.

WE'RE NUMBER ONE: The University of Tennessee, where I teach law, just got ranked number one on the Princeton Review's list of "party schools." I don't think they counted the law school. My own sense, though, is that undergraduates party a lot less than they did when I was in college back during the Reagan era. That's good, I guess: but I'm not convinced that academic achievement is the only thing that matters in college. Socialization, excessive drinking and sex, and general dumb rowdiness have been an important part of college since the beginning, and I think they actually serve a useful purpose.

THERE ARE LIES, AND THEN THERE ARE LIES: Interesting Breakfast Table exchange between Andrew Sullivan and Jonathan Lear. Lear compares the Times' censorious treatment of Joseph Ellis with its far more understanding treatment of the (at least as dishonest) Rigoberta Menchu. Sullivan compares Ellis's lies with Bob Kerrey's. I said it would be good. I also said it would be more like the "after lunch" table -- and I'm right on both counts, unless you live in the Pacific Time Zone or points west. Hey, it's always time for breakfast somewhere!

INSTAPUNDIT CALLS IT AGAIN: InstaPundit,Sunday, 8/19 at 10:15 a.m.: "The big talking-point right now for Democrats is that the Bush tax-cut squandered the surplus, and that we'll have to raise taxes to make up for it. They're falling right into the trap, as Mitch Daniels let slip to Wolf Blitzer. The tax cut wasn't about fiscal management: it was about taking the money off the table so Congress couldn't spend it. That part isn't news. What's news is that they're willing to say it. If the Democrats push this issue, it'll turn into a debate on how much people trust Congress. That's a sure loser. It would be even without the sex scandals, but with them it's worse."

George W. Bush today: "I trust you. I would rather you spend your money than the federal government spend your money." Bush's speech went on the attack, more than the New York Times account makes clear. He accused Congress of creating phoney crises, and of having an unlimited appetite for spending money. If the White House keeps this line up, Bush will roll the Democrats. The trust card is a devastating play in this debate, because nobody trusts Congress. They don't trust Bush overwhelmingly, but in a contest between him and Congress it's a no-brainer. He knows it, too, as this snip from his discussion of Congress's temptation to depart from the budget demonstrates: "The second temptation is to complain that the budget has been cut when, in fact, it has increased. One of the amazing things about Washington accounting is that when a budget increase is less than expected, or less than anticipated, or less than someone hopes for, that's called a cut." And this statement is called a preemptive strike. You can see the full text here. Notice how often he uses the word "trust," with regard to the people, versus "temptation," with regard to Congress.

ELECTION "REFORM"? This story provides a cautionary example of where election regulation could go. Singapore has forced websites to shut down chat boards that allow people to post anonymously, since they might post about politicians and any "political" speech has to bear information regarding its source. Political parties are allowed to engage in political speech, but it's very tough for individuals -- especially, of course, those criticizing the government. Do we want to follow Singapore's example? This would be the likely outcome if some proposed campaign "reforms" were enacted. Why, the United States could become a near-police state, sort of like the town of Emerson, New Jersey.

THE GENES BUT NOT THE GENIUS: At last, someone gets it right on cloning. Naturally, it's Jonathan Rauch, with this terrific oped in the Los Angeles Times. Are clones duplicates? Not quite, as is made very clear in this unusual illustration.

SKLYAROV & THE DMCA are the subjects of an excellent editorial in the Washington Post. Calling the DMCA "oppressive," the Post even touches on the impropriety of having federal law enforcement serve, essentially, as goons to protect corporations' economic interests. I'm glad this is getting more attention.

STEREOTYPING, SLAVERY & THE IVY LEAGUE: Nice letter in the New York Times from a student at Penn, pointing up the irony of the Ivy League's just-being-discovered history of benefiting from slavery as set againt today's self-righteousness.

RUDY FOR DEFENSE SECRETARY: I know, Rumsfeld's still there, but the death watch (perhaps a bit too eager) is already under way. The silliest suggestion I've seen so far is from The Bullmoose, suggesting Rudy Giuliani for SecDef. Let's see, now: Rudy is the guy who's lobbying Pataki to veto a bill that would legalize sparklers and we're going to put him in charge of nukes? I don't think he can handle them.

(On the other hand, we could capitalize on Rudy's law-and-order expertise: wouldn't the terrorists tremble when we announced we were sending crack "Plunger Troops" after them?) No, I just don't see it happening.

8/20/2001

ANOTHER PRO-LIFER FOR STEM CELL RESEARCH: This time it's Dave Munger, writing in Spintech Magazine, and taking his fellow pro-lifers to task for complaining about Bush's position. Best quote: "What exactly were we expecting Bush to say? That federal agents would henceforth be stationed in every maternity ward to confiscate the afterbirth to keep anyone from using stem cells in a manner reminiscent of the procedures that destroy the smallest children?" Also good: "All of the other objections from the right (not my right, no one gets to the right of me), have been of the baseless and emotional type that I expect from some depraved Rosie O'Donnell wannabe, obsessed with eliminating symbolic, rather than actual threats to �the children� and/or irrationally afraid of technology and commerce.

"One gets the urge to tap these people on the shoulder and ask, Excuse me, did you just say that it is wrong for one person to benefit from the deliberate killing of another? In that case, what, pray tell, is the purpose of society? The State? The study of history? Or, in Christian theology, the incarnation and crucifixion?"

Alan Keyes, are you reading this? Incidentally, the "Nuremberg Files" page that named George Bush appears to have been taken down. I don't know if those guys were persuaded to do so by the Secret Service, or if they just realized on their own how stupid they were.

MORE ON THIS: Andrea See's website has a link to this interesting take on parts of the anti-globalization movement by Chicago Tribune reporter Ron Grossman. This, too, suggests that distrust of government officials lies at the root of much of the lack of enthusiasm for trade agreements. That should be a warning: too many bureaucrats and politicians take public trust for granted. It is, in fact, the ultimate nonrenewable resource. Use it up, and it doesn't come back anytime soon, as the situation in the former Soviet Union demonstrates. Of course, being trustworthy requires self-discipline and honesty (not only with others, but with oneself) and these are not hallmarks of political leaders in general today.

EUROPEANS UNSURE ABOUT EUROPE: Well, about going farther with the European Union, anyway, according to this excellent story by Kevin Cullen in the Boston Globe. The main reason: they see the Treaty of Nice as a power-grab by unaccountable Euro-Crats.

Representative quote from a Dublin bartender (this is the Globe, after all): "'I'm tired of being talked down to by a bunch of unelected, unaccountable elitists in Brussels,' said John Dolan, 30, a Dublin bartender. 'I'm a European, and proud of it, but I'm Irish first. I wouldn't let the politicians here take us for granted, and I'll be damned if I'm going to let somebody in Brussels do it.''' This is the same sentiment behind much of the complaint about FTAA, NAFTA, the WTO, the IMF, the World Bank, and, for that matter, the UN. There's a strong sense among many that governments are getting together at an international level to do things that their domestic politics would prevent. This has considerable traction because, well, it's true. It's not always bad that governments do those things, of course, but it is politically dubious -- especially nowadays, when people trust governments and bureaucrats a lot less than they did at the time of, say, Bretton Woods. Note, however, that this issue is -- at least conceptually -- distinct from the question of whether free trade and globalization are desirable in themselves.

THE RESURRECTION OF BOB LIVINGSTON? Yes, he seems to be making a bit of a comeback, even preparing to appear on some talking-head shows. Question: is it just the passage of time, or have more recent sex scandals given him the equivalent of a parole?

VERY WELL DONE PIECE ON DIGITAL MUSIC in the New York Times. The story describes the excellent music available on the Internet, with these pithy observations: "As a critic whose job is based on listening to new music, I have never been exposed to more high-quality artists in a shorter amount of time." Also: "In general, it seemed to be a rule that the more passwords you needed, the more personal information you had to submit, the more corporate logos you saw and the more special software you needed to download, the worse the site was." Yes! Both have been my experience.

I strongly suspect that one of the main reasons record companies have been so opposed to the spread of digital music isn't really piracy. Rather, they're afraid that people will realize that there are many artists out there just as good as, and often better than, the ones signed to major labels. It's also true that the record companies have been very lame in their marketing efforts. They're too busy protecting people's rice bowls to make the necessary changes for a new business. But someone will, even in the face of the industry's thuggish tactics toward competition.

PAY NO ATTENTION TO THAT WOMAN BEHIND THE CURTAIN: David Boaz writes that Karen Hughes, the "power behind the curtain" in the Bush Administration, is getting very little attention from the media despite arguably being the most powerful woman in America. I doubt that the White House is happy with the Wizard of Oz reference, but he's right that she gets very little attention compared to what, say, George Stephanopoulos or Dee Dee Myers got at a similar stage in the Clinton Administration. Boaz offers several explanations, but I suspect that one factor is that Hughes doesn't want publicity very much.

SLATE'S "BREAKFAST TABLE" will feature Andrew Sullivan and Jonathan Lear all week. Should be very interesting -- though if Slate keeps up to its history, it'll be more like the "after lunch table."

JOSEPH ELLIS UPDATE: I have an email from Jodi Wilgoren, the New York Times reporter whose story is reported below (8/18). She says that the line about Ellis's scholarly integrity not being questioned was accurate. "No one," she says, has questioned his scholarship. I guess the Times editors must have cut the line for space reasons. Perhaps as a professor I'm hypersensitive about that sort of thing, but it seems to me that they should have cut something else. Oh, well, I'm glad to make it clear here. He shouldn't have spun stories about combat service in Vietnam, which seems to go beyond the mere puffery one might expect in a lively class. But it's important to note that his work as a historian remains unchallenged.

ANTI-GLOBALIZATION GEEKS? Opposition to the Free Trade Area of the Americas is now coming from the Electronic Frontier Foundation of all places. This underscores what I regard as the intellectually respectable part of the anti-globalization movement: not an opposition to free trade per se so much as an opposition to the way the "free trade" movement actually involves the enacting into law of rules and regulations designed to protect the power of unaccountable transnational bureaucracies and corporations. The EFF isn't against free trade, but rather against proposals for, in essence, exporting the (justly) hated Digital Millennium Copyright Act, which the EFF says, correctly, has made millions of Americans criminals by outlawing activities traditionally regarded as fair use, leading to such absurdities as the Sklyarov case and the efforts to block the presentation of academic work by Princeton computer science professors.

I don't have much sympathy for people in countries that have already become rich through international trade denying the right of poor countries to do the same. But the globalization process is only partly about free trade. A large part of it represents an insider game of sleight-of-hand, in which the intellectual commons is being enclosed, and many aspects of corporate and bureaucratic power are being entrenched against democratic control. The geek community has been at the forefront of pointing this out, and is likely to be difficult to control, coopt, or win over. Thank goodness.

"THIRD WAY" APPROACH TO PATIENTS' RIGHTS: This letter in the Washington Post makes an interesting suggestion for a compromise on the patients' rights bill: allow patients to sue, but cap legal fees. Why not: everything else in the health care area is subject to caps and limits. The author suggests a ceiling on the percentage that can go to contingency fees, but a limitation based on a reasonable per-hour rate might make more sense.

I'm not sure how the politics of such an approach would shake out. Democrats would be hard-pressed to oppose a limit on legal fees -- imagine having to argue publicly that, say, $200/hr. isn't enough money for lawyers. (I'm sure Karl Rove would love to put the Dems in this position). On the other hand, Republicans hate trial lawyers so much that they may not want to go along with any sort of right to sue.

Another proposal: let people sue Medicare and Medicaid on the same basis as HMOs. Why should the government, which routinely rations care (and in fact led the way in such rationing) be less accountable than companies? Medicare and Medicaid patients need quality care just as much as anyone. What's the basis for a distinction here?

THAT POPULAR SITE OF ACADEMIC ONE-UPSMANSHIP, the U.S. News college rankings, is coming under fire in a Washington Monthly expose authored by a former editor. More damning than the expose of the ranking's flaws is the way colleges have bought into the system despite knowing that it's bogus.

8/19/2001

THE HISTORIAN GORDON WOOD CALLS IT "OUT OF DOORS POLITICAL ACTIVITY." Pauline Maier, in her book From Resistance to Revolution calls it an Anglo-American tradition. Lately, it has broken out in the UK again. Last year it was the demonstrations over gas prices that brought the country to a near-standstill. Now it's automated ticket-writing cameras of the sort being introduced into a few places in the United States. The Telegraph describes the drivers as venting "their fury at the proliferation of 'big brother' technology." Historically, the British have not been especially orderly. This changed during and after World War Two, where the ability of people to suffer many difficulties without complaint was seen as the key to victory. Now the World War Two generation is fading, and so is their influence. Will we see more of this sort of thing? Is it a precursor of similar changes in the United States? Or are we already so disorderly it won't matter?

MORE ON COUNTERS: How did I know where people are coming from? Ah, you may well ask. [I am asking. --And well you may! -- Monty Python] When the page loads, it loads a counter (cool and free, from Bravenet.com). The counter, uh, counts you. It also gives me your (partial) IP address, which is largely useless, and the referrer id, which is the page you came here from, unless you just type in "Instapundit.com," in which case it shows as "direct hit." Right now I'm getting most of the click-throughs from Blogger.com, which has InstaPundit as a "blog of note" at the moment. There are also some from the Opinionjournal "Best of the Web" page, though that's tapering off, some from Slashdot, and a scattering from other places. The vast majority of sites you visit will be doing this. If you don't like that, you can block it with software like AdScrub or Norton Internet Security or any of a bunch of other programs -- but my counter only keeps the last 50, which at the moment is less than an hour's worth. With the other guys, you're on your own. For me, this is pretty much idle curiosity, but I can see why businesses would like it.

SAY AGAIN? More than 30,000 people were charged with federal drug offenses in 1999, according to the Justice Department. That's more than double the number from 15 years ago. Attorney General John Ashcroft says that this is proof that federal drug laws are working. Huh?

WEB SPEED: Looked at the counter. Noticed I was getting click-throughs from a place called Intellectual Ambrosia. Checked it out. It's been up for a couple of days, but today, at 2:52, one of the posters said, "I found a blog I really like. It feeds the political junkie inside of me. ;-)." Voila, more traffic, which I noticed something like 20 minutes after it started. I used to have to wait until the next day for counter information; this feels almost like realtime.

Oh, Intellectual Ambrosia is kind of neat, though it's not much like InstaPundit, except for an occasional dialogue on the mideast.

DOH! According to a report in the New York Times, the FBI is now investigating a "senior counterterrorism official," who last year misplaced a briefcase containing information on nearly every counterespionage and counterterrorism operation going on in New York (which presumably is a lot) along with budget and manpower proposals. The official, John O'Neill, isn't going to be charged with a crime, apparently. He will, however, retire to take a job as a "private security consultant." I don't think I'd hire him.

Good thing he didn't do something really awful, like telling somebody there was a security problem with his website. (See the item below on Brian K. West, who incurred the FBI's wrath by doing just that).

MISSING THE POINT: The big talking-point right now for Democrats is that the Bush tax-cut squandered the surplus, and that we'll have to raise taxes to make up for it. They're falling right into the trap, as Mitch Daniels let slip to Wolf Blitzer. The tax cut wasn't about fiscal management: it was about taking the money off the table so Congress couldn't spend it. That part isn't news. What's news is that they're willing to say it. If the Democrats push this issue, it'll turn into a debate on how much people trust Congress. That's a sure loser. It would be even without the sex scandals, but with them it's worse.

This is one fruit of the "everybody does it" defense back during the Clinton era, one now resurrected to explain the lack of Congressional action (or even talk) over you-know-who. This defense kind of worked (not everybody does it, but a lot do) but at a price: general loss of respect for government in general, and Congress in particular. This is a game the GOP can't lose over the long term: their platform depends on, or at least benefits from, people not trusting government; the Democrats, on the other hand, need trust to sell new programs and spending. No one wants to give money or power to people they don't trust.

UPDATE: Mickey Kaus is making the flipside of this argument: that the tax cut is helping liberals by making a big structural defense buildup (which would be hard to reverse even after an election) impossible. He's right, too. The tax cut means there's less money in the pot, and by preventing new government programs from taking root and growing like weeds (an analogy explored persuasively and hilariously by Norm Augustine in his frighteningly true book, Augustine's Laws, with comparative growth charts), it preserves greater flexibility for the future at the cost of having less to play with now.

MICHAEL KINSLEY defines a "gaffe" as when a politician accidentally tells the truth about something. That would seem to apply to Treasury Secretary Paul O'Neill, who is taken to task in today's Washington Post for a series of "gaffes" that look rather truthlike. Among O'Neill's gaffes:

o Saying that Social Security is no substitute for individuals' saving for their own retirements.

o Saying that the dollar follows the market more than government policy.

o Saying that the corporate income tax should be abolished.

Okay, only the last of these statements could even be described as controversial, and while I'm no Stephen Moore on this subject, it's certainly not a nutty view. As the Post article notes, the real problem isn't what O'Neill says, but that he doesn't say it in a mealy-mouthed -- er, excuse me, I meant "politic" -- enough way. Well, maybe so. Funny that, in Washington, that's the biggest sin of all.

MORE THUGGISHNESS: Declan McCullagh reports in Wired that a bunch of New Jersey elected officials are suing a local website over comments that citizens posted on their chat board. The plaintiffs are Vincent Donato, Gina Calogero, Larry Campagna and Eric Obernaur who seem determined to live up to the thuggish reputation of New Jersey politicians. These guys have no case, and must know it. Their real goal has to be smoking out who posted the comments (they've subpoenaed the ISP to get information on anonymous posters). Why would they want to do that? Presumably so they can fire them (if they're government employees) or harass them (if they're, say, local business owners who can suddenly be hit with visits from fire inspectors, health inspectors, tax assessors, etc.)

People who file frivolous or malicious lawsuits are subject to sanctions, at least in theory, and from where I sit (admittedly a ways from the action) this looks like a good candidate. I think that public officials who file frivolous or malicious lawsuits against citizens who criticize them should be made an example of. Unfortunately, they tend to be favored by local judiciaries, which are seldom as independent as they should be. Perhaps one or more of the anonymous posters will be from another state, allowing this to be removed to federal court.

SADLY, IT'S NOT JUST THE FBI: "Brian K. West, who did nothing more than try to get a local copy of an html document to pre-test how an ad would look on a webpage, using Microsoft FrontPage, may well have his reputation ruined and his finances destroyed as a result of his actions. He did not deface the site. He did not damage anything. He accidentally found a security hole, tested it to make sure it was real, and then called the owner of the site to inform him of the problem. In short, West faces a felony conviction for telling the Poteau Daily News that he discovered a serious misconfiguration in their server." This is another example of what's wrong with federal law enforcement today: it has far too high a population of idiots with no judgment. Think I speak too harshly? Read the story. Nor, sadly, is this case an aberration -- it fits in with the experience that many people have had with federal law enforcement in the computer area, all the way back to the Steve Jackson Games case, where the Secret Service proved unable to distinguish between role-playing games and reality. In the discussion of this story on Slashdot, the consensus among the programmers and administrators there was that you should never tell anyone about a security hole in their system, because law enforcement people don't understand the difference between pointing out to someone that their door is unlocked on the one hand, and breaking and entering on the other.

Will computers be safer because of this kind of prosecution, and the attitudes it engenders? No. And there's something profoundly UnAmerican about the notion that "it's safest not to come to the attention of the authorities." But that's increasingly the view. The long-term consequences of this are likely to be really bad.

And that's my real problem here. I have nothing against law enforcement per se -- quite the contrary. Lots of people deserve to be put in jail, and most criminal defendants are in fact guilty, often of something worse than what they're charged with. BUT, as Thomas Jefferson once said, it's far more important to avoid convicting the innocent than to convict the guilty, because if you convict the innocent, people quit paying attention to the law, having concluded that innocence is no protection. Unfortunately, law enforcement has become a lot like the education world, following the latest fad and that tends to encourage people to create cases even when they don't really exist, just to stay up with the current trend. Respect for the law, and law enforcement, in the United States is plummeting, and that's a very serious problem that can't be solved with a quick-hit, PR mindset. Unfortunately, that mindset is what's rewarded in the law enforcement bureaucracy.

That the FBI didn't know better is unforgivable, but predictable. That the U.S. attorney, who is supposed to provide adult supervision, hasn't shut this down is even worse. Who are these people? Will anyone be fired for such an appalling lapse of judgment? Ha -- we know the answer to that one, anyway.

THE FBI CAN'T GET A BREAK: But that's mostly its own fault. What is it with these people? As this Washington Post story demonstrates, most of the FBI's problems are its own fault. The story accounts how the Bureau relentlessly -- and nastily -- investigated a senior CIA agent, telling his family and friends that he was a spy, that there was no doubt, and that they just wanted to nail down a few details. Actually, he wasn't a spy, they had the wrong guy while Robert Hanssen (an FBI agent!) skipped merrily in circles as they wasted their time on someone who was innocent. These "we know the truth" gambits are a standard FBI tactic (they did the same thing with Wen Ho Lee, Richard Jewell, etc.). My advice: if you're ever taken into a windowless room and get this line from the FBI, laugh. Tell 'em that recent evidence suggests that if they say they're sure, they're either lying or wrong. Based on recent developments, the FBI couldn't find its weenie with both hands and a flashlight.

Now look: investigating crimes, especially the ones where crooks aren't idiots, as they usually are, is hard. Counterintelligence is really, really hard. But these B-Movie gestapo tactics don't even work on the bumbling clods of the Mafia. They're far more likely to cow some innocent schlub into a false confession than to get a guilty party to admit anything. So why do they do them? Partly, I think, because a lot of these guys have authority issues, and partly because they've seen too many bad movies. But it's backfired big-time now. After this incredible string of screwups, the FBI is viewed as a more dangerous version of the Keystone Kops. The bad guys aren't afraid of them, and the good guys don't respect them. And both are right to take this attitude. Perhaps the Bureau should be abolished, or go back to spending most of its time on car thefts and bank robberies: it's just not up to the job it's taken on.

Oh, yeah, did I mention the Bureau still hasn't apologized?

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