Thursday, May 29, 2008

"What Happened?" McClellan's actions do raise ethical questions about public speech on a payroll

I can recall in elementary school as we waded through third grade readers like “Streets and Roads” and counted the pages of each story assigned (and how many of them had pictures – they got fewer) that the payoff was at the end, “what happened.” That’s the last act of a screenplay, isn’t it – the payoff.

Such is the title of Scott McClellan’s book, an opus that was to be released May 31 (Saturday) but leaked. “What Happened: Inside the Bush White House and Washington’s Culture of Deception” published by Public Affairs. There are other unrelated books on Amazon with that title. Yes, I’ll order it soon.

But there is a fifteen minute video on MSNBC, available here (yes, watch it!), where the author does his oral exam defense. He says he was misled on the Valerie Plame leak, and, worse, that President Bush selectively released previously classified intelligence, mostly about Iraq, that he had been unaware of. He says that the president goes on “gut instinct” and not intellect. No surprise.

The problem for him is that he was hired as a pitchman, as the press secretary. His paid job was to speak in public for the administration. He was paid to convey the administration’s views, not his own. And here, I can say, “I told you so.” As far back as 2000, I’ve posted essays on my websites and blogs that, if you are paid to make decisions about other people or are paid to represent other people’s views in public, you lose some of your right to express your own. The ethics of whistleblowing laws is not the issue. It’s the fact that you “inherit” some responsibility for your employer, just the way a java class can in an object oriented software application. So, if you don’t want to share that burden, the honorable thing to do is quit.

Then, it is OK to write a book. Of course, you have to honor confidentiality agreements, trade secrets, and not divulge classified information, even after you leave. Even then, there can be a problem. When I wrote my book in the 1990s largely (but not exclusively) on gays and the military and a previous draft, I had to tread carefully because I worked (although as an individual contributor) for a company that sold life insurance to the military. Finally, after a merger, I “transferred” away from the problem. But these things really matter.

A somewhat related issue that that employers sometimes form PAC’s and invite employees to participate, although reputable employers do not pressure employees to do so. But there is a story by Amy Gardner in The Washington Post “E-Mail Backing Connolly Raises Questions: Consultant for Firm Asks Its Employees to Donate to Va. Congressional Candidate,” link here. The company is SAIC (Scientific Applications International Corp.) and Connolly is said to work part-time for SAIC in public relations. The story goes on to analyze whether the email could have violated recent campaign finance reform laws (McCain-Feingold), itself a subject of controversy a few years ago because of the concerns over blogging. But the bigger problem is the idea that someone at a large employer would believe that pressuring some employees is the right way to advance public policy. If you “work for somebody” they own you, just as in the soap opera world. Good bye to thinking and speaking for yourself.

Tuesday, May 27, 2008

Viacom v YouTube litigation could affect "ordinary" speakers

In 2005, remember, in MGM v. Grokster, the Supreme Court affirmed the legal principle that a company or entity that enable others to commit copyright infringement (or other illegal or harmful activities) could be to “downstream liability” when these company’s “business model” is predicated on the expectation that copyright infringement (or whatever other illegal activity) will occur and when the company could not be successful without a substantial amount of infringement occurring. This ruling could counter the use of "safe harbor" in the Digital Millennium Copyright Act, which specifies "downstream liability prevention" procedures for ISPs and hosts to follow with allegations from copyright owners that infringing works have been placed on their servers. In theory, it also sounds contradictory to the well known “Section 230” of the 1996 Telecommunications Act that limits liability to parties that host illegal content provided by visitors. Again, it’s what the business model is that matters.

Viacom (owner of Paramount and Dreamworks and many other entertainment companies) has sued YouTube for $1 billion in New York, claiming that YouTube’s model is predicated on infringement. Defendants claim that they follow the provisions of the Digital Millennium Copyright Act (DMCA), particularly in the way they follow the safe harbor provision in implementing takedowns of alleged copyright-infringing materials posted by visitors. Defendants also claim that a victory for Paramount could result in loss of generativity for the Internet and the ability of many ordinary people to share information on the Internet (including bloggers like me).

The AP story is “YouTube Suit Called Threat to online Communication,” by Larry Neumesiter, and the link is here. It was published yesterday on Yahoo!

The arguments made be defendants are disturbing. What they suggest is that it would not be profitable for search engine companies and blog-hosting companies and ISP shared hosting companies to offer low-cost of free hosting to “ordinary people” if the courts were to agree with Viacom. This idea is sure to be bitterly debated, and reminds one of the “Chicken Little” tone in much litigation these days (like COPA). The concern would come about if plaintiffs could prove that a substantial part of YouTube’s revenue comes from infringing materials, and if the company could not be profitable without “not catching” a lot of the infringing material. A more difficult economy could have an effect of the validity of the arguments.

The litigation will surely take some time, and whatever the outcome, be appealed and probably go to the Supreme Court. However, judges will have to follow the precedent in the 2005 MGM case.

In practice, I sometimes do find materials on YouTube that look like copies of broadcast material. As an individual, I have no way of knowing whether permission was obtained to upload the material. There has sometimes been some controversy over copyright ownership of “protest” video for events overseas. Television stations tend to guard their content carefully; but nevertheless, local stations sometimes do provide free uploads to YouTube or grant permission for its use, or they go out of the way to retain interesting videos for others to find later. A number of local station videos about Michael Fertik talking about his “Reputation Defender” exist and appear to be intended to be offered free by the stations.

So far, I have kept my own video on my own site ( and have not uploaded to YouTube. To me, as someone who would like to find funding for a film, copyright cuts both ways. Artists have to be paid or they cannot work. However, independent film (or something like what I would make) will be much less attractive to piracy than a blockbuster Indiana Jones movie (which does come from Paramount).

Just as with the recommendation that they should consider using Creative Commons licenses, new artists should watch this case closely. It seems like it is about big corporate profits, but it can affect the little guy.

Note: The Section 230 statute is here (Cornell). It refers more to content that a host might otherwise have to filter and says that nothing in it refers to intellectual property law itself.

The "Safe Harbor" law is section 512, and is here (Cornell).It is true that when web hosting companies follow these provisions, they are supposed to be protected from further "downstream liability".

There is another bill before the 110th Congress, HR 4279, that might strengthen DMCA safe harbor in some cases, govtrack reference here.

Update: June 2, 2008

Arstechnica has a great article by Nate Anderson, dated 5/27/2008, "YouTube: Viacom dumping piranhas in our DMCA safe harbor," link here. Anderson discusses conversations with Viacom executives that argue that YouTube does not qualify as a "DMCA safe harbor provider." It's a little odd to call "safe harbor" the best part of the DMCA, but it is essential for legitimate facilitators of user generated content (like Blogger) to have precise limits from liability. Normally the liability goes with the actually publisher of the content, not the communications carrier. It's hard to fathom what the Viacom executive means other than a claim that YouTube would not exist if it did not depend on deliberate infringement by many posters. What seems to be happening is that older media operations that depend on "suburban mall blockbuster" mentality of on Nielsen ratings for revenue have not figured out how to deal with so many new channels of distribution. The nature of the audience for film and video, as judging from the popularity of many sites that offer indie content legally (like Logo for glbt material) has changed simply too rapidly for old-style executives to keep up.

Monday, May 26, 2008

Creative Commons Licenses -- a mechanism to allow customers enhanced reproduction and distribution rights, good for open source

One hears a lot of mention these days about Creative Commons licenses. These are licenses that one can apply to one’s work (as with embedded HTML code on a web page) to identify what reuse of the material in the work is permitted.

The main site that explains is Creative Commons, with the subtitle “Share, Remix, Reuse – legally.”

The concept would encourage artists, especially new ones, to offer their work for reuse beyond what is normally acceptable under the “fair use” doctrine of copyright law. In a sense, it is a “some rights reserved” copyright. There are four components to a CC license: “attribution” “commercial or non-commercial” “derivative works allowed or no derivative works allowed” and “share alike,” the last of which causes derivative works to inherit (in object oriented fashion) the licenses. This leads to the selection of one of six licenses, with common language, legal language, and digital code expressed in the license (link).

A typical license is offered by Electronic Frontier Foundation, stated here, license illustrative example here.

Widespread use of Creative Commons has been promoted among new artists to counter confusion that results from various attempts to control piracy. Established for-profit public companies normally have a fiduciary responsibility to shareholders to protect their normal copyrights vigorously. Creative Commons also comports well with the open source concept.

I would be interesting to debate how a CC license affects some situations, such as inframe or hot links to images.

It is my practice to give attribution at all times, and links when possible, and to “add value” to news stories with my own observations besides just re-reporting the information in the stories. I try to give more than one source when possible. Some websites have clauses on their stories against “publishing, broadcasting, rewriting, or distributing” of stories but that would not preclude inclusion of facts with proper attribution under the “fair use” doctrine. External linking (including deep links but not hot links) appear to be protected by fair use, as has been covered before in this blog.

Friday, May 23, 2008

Employers sometimes expect associates to use social contacts for business leads: another reason why social networking profiles can matter on the job

I ran into a young life insurance agent on the Metro yesterday, and we got into a conversation about how agents are hired, something I discussed in July 2007 on the retirement blog (see profile). I mentioned that the last step was to be an exercise developing 200 or more leads.

“That’s to see if you can build a list of contacts, and have enough coming into the job,” he said. In other words, a life company would have, in my case, been expecting that after twelve years in life insurances as an IT person, I would have enough “business contacts,” or that I would have it through “family.”

There’s a similar issue if one tries to get into IT recruiting. Typically recruiting firms develop when someone leaves a large company or large government agency (in the DC area) after many years and has many contacts. And the same would apply to many “beltway bandits” and lobbying groups, or to “K Street”.

And it would even apply to technical hardware and software sales. However, conflicts of interest and non-compete agreements might often hinder ex-employees (even those laid off) from using contacts this way.

You can see how the concept of building contacts works, even in reality television shows like Donald Trump's "The Apprentice."

This may become a problem for individuals in the GLBT world, unless their own personal networks are large and personal enough. Often they are somewhat disconnected from their families, and some employers would have expected on being able to use family connections for business purposes.

Sometimes cultural interests can build up social contacts quickly. The independent film, acting and screenwriting community in the Twin Cities (Minneapolis-St. Paul) when I lived there 1997-2003 and could build up social contacts quickly.

This does help explain why companies have viewed the development of social networking sites with both interest and concern. Some can sunder their own reputation for future business on a social networking file without realizing it, or others might sunder it for them. But the concern goes beyond that. Companies, in many areas, want people to use their own personal reputations, “to get business,” and will want to see their personal social networking profiles commensurate with this purpose.

Wednesday, May 21, 2008

Does recent Supreme Court ruling affect "fiction" in blogs and profiles?

On Monday, May 19, the United States Supreme Court, in upholding portions of the 2003 “Protect Act,” affirmed the legal principle that it is all right to make it a crime to offer for sale, distribute, or promote a service or product that is illegal even if that service or product does not in fact exist. Even the more liberal justices like Souter indicated that this is simply fraud and, even without other concerns, there is no reason that this cannot be made a crime. I have some discussion of the Opinion (and all the relevant links) on my May 19 issue on my COPA blog here.

Does this opinion have any effect on the issue of “fiction” in blogs or on websites when the fiction gets misinterpreted by others? I’ve discussed the potential ramifications of this problem before, particularly with respect to employment and “reputation defense.” But could it trigger a prosecution under a “pandering and solicitation” statute?

It might be possible in some cases that “fiction” would be viewed as “thinly veiled” (as in the divorce case on Vermont previously covered (Jan. 11 2008 on this blog; state court case law, as in California with the Bindrim "Touching" case, discussed July 27, 2007, could also apply sometimes). If such a transparent piece of fiction seemed to offer an illegal product (c.p.) conceivably that could fall under the penumbra of a law like USC 2252A. Or conceivably it could be viewed as enticement (like 2242). It would seem reasonable to say, however, that if it was clear to the “average visitor” that the piece really was fiction, then (by straightforward syllogistic logic) the piece of writing does not make a representation that some illegal service or product exists and will be offered, and the visitor should realize that the purported object may well not exist at all. A blogger might write a story or screenplay to demonstrate “what can happen” (consequences) in some hypothetical circumstances, even using someone a bit like himself as the fake protagonist. The blogger will say that this is a “thought experiment.” Writers depict “thought experiments” all the time (Andrew Sullivan is fond of using the term). This activity would seem to be clearly protected by the First Amendment and the narrowing of 2252A offered in Justice Scalia’s detailed Opinion would certainly preclude its being used in such a case.

There are problems, however, inherent in “amateur” self-publication and distribution. Commercial motion pictures normally contain, as the last item on end credits, a clear disclaimer that the story just presented is fiction and any resemblance to real people or situations is coincidental. “Amateur” publications may not be so carefully labeled. And, in fact, sometimes a real person (oneself) might be identifiable and parodied in a hypothetical situation to make a point. It is possible that in the future, Internet content labeling technology, discussed in the COPA blog mentioned above, could help alleviate this potential problem.

A bigger situation may occur with the personal and, particularly, employment circumstances of the speaker. Suppose the person is a teacher, and in a situation where he or she is expected to function as a public “role model.” (With substitutes that expectation gets more dubious.) A “role model” is not supposed to allow (much less “encourage”) others to question his or her impeccable character. Therefore Internet conduct that leads to these questions (“reputation defender” again) might, in this context, raise secondary legal questions that could seem to encourage prosecution in some extreme cases. If this is to become the case, school districts and similar employers should make this clear to employees with announced personnel policies.

But then, "they" will say, every adult should hold up as a role model!

Monday, May 19, 2008

Subjunctive mood: assertions and desires, as expressed in blogs: respect their limits, please

One skill in communication and in reading and interpretation communications from others is in distinguishing the statement of fact from the assertion of conjecture of the expression of desires or wishes. Conjecture in language is expressed with use of the subjunctive mood, and in some languages desire is expressed with a certain set of subjunctive conjungational endings called optative.

In English, as grammar and conjugation has become simplified over centuries (and as English became more “analytic”) the differentiation of the formal subjunctive from the indicative exists only in a few cases: third person singular, and some special forms for the irregular verb “to be.” There some other special rules, like that for the pluperfect.

I remember, from taking French, that other languages use endings a lot more to separate allegation from fact. When a French test made me conjugate a verb in all moods, it made me conscious of what the subjunctive means, even in everyday speech. As an educational matter, study of foreign languages helps people learn to communicate better and more precisely in their own language.

What’s the importance of subjunction? Well, it really matters on the Web, in blogs and profiles. Particularly mine. I often summarize arguments that other parties have made about a particular controversy, and even propose arguments that I think others could make.

Authors of non-fiction books on public policy often do this, to help the audience prepare to deal with an upcoming political battle. Indeed, there is a series of books from Greenhaven Press, “Opposing Viewpoints,” predicated on the value of doing this.

I went through lots of the arguments regarding gays in the military and subtle workplace discrimination (related to marriage laws) in my books, and then turned more attention to free speech and the unprecedented issues that now come up on the Internet. These may focus particularly on protecting minors, but they go way beyond the usual concerns about censorship (such as the CDA and COPA) to included “implicit content” (concerns about indirect motivation) and “reputation defense.” A number of incidents have occurred, sometimes tragic, with unintended consequences from Internet behavior where statutory and case law has no clear answer.

In blogs, some viewers find the practice of enumerating others’ actual and potential arguments disconcerting. They may believe that doing so gives bigoted attitudes credibility. I would answer that you have to account for what they say anyway and understand what really bug “them,” what “they” really need. But, worse, they misread statements of conjecture as statements of fact or as statements of the actual views of the writer (me). That’s particularly true in “analytic” English, where conjugation is not used as much and where so much inferred meaning depends on idiom and surrounding context. This gets more complicated in some kinds of cases that go beyond the issue of language structure.: I depicted (a fictitious character arguably "similar" to) myself as a potential “bad guy” in a fictitious screenplay on my website and was confronted (indirectly, by a school system where I worked as a sub) as to why would I even present myself that way (at least as possibly "confessing" certain potential "desires") in the first place. That’s part of the “implicit content” and “reputation defender” problems, and it relates also the the military "don't ask don't tell" policy.

Perhaps the greatest danger for blogs that do this is that some visitors could view an entry as hateful, perhaps even in violation of terms of service, when, if the posting is viewed carefully and in context, if is just accounting for arguments that some people make or might make in the future because of their own needs. In some of the Internet speech area, particularly, it’s important to realize that new laws probably will be propose, and novel situations will be tested in court, and additional creative arguments are going to be made. It is well to be prepared to meet them. Furthermore, public awareness of the range of arguments is important to keep control of debate out of lobbyists who collar policy makers and baby the public with simplistic appeals to very narrow “self interest.”

Here, too, I am reminded of a past debate that I had (even within the Libertarian Party back in the 1990s), over “winning arguments” rather than “winning converts.” I am an argument kind-of-person. I don’t like to go out and recruit people and manipulate them. I remember how this question came up in Minnesota with ballot access petitioning in 1998.

It’s also important to realize that the recitation of legal arguments or even the citation of legal court opinions or of administrative regulations (as with Social Security) on blogs does not constitute giving “legal advice.” A visitor who has a particular issue needing court or administrative remedy should always seek the appropriate professionals or at least be guided by the procedures of the agency to which they must appeal. The legal outcome of a problem will often depend on the minute facts of a particular case. Just watch Judge Judy.

Thursday, May 15, 2008

Links and URLs within blog and website entires: review policy

I discussed the topic of deep linking on Feb 6, 2006 on this blog, but I thought I would reiterate my own practice. I give as much detailed information about any source as is practical in any blog post, including the hyperlink URL when it is known. With newspapers, I identify the date and usually the page and section in print if possible. When practical, I tried to quote more than one news source in a posting, but sometimes there is only one source, as with a scoop.

Many links become obsolete. Many newspapers require registration, subscription, or individual credit card payment for visitors to see the full content of older articles, as they are certainly entitled to do as owners of the content under copyright. That may happen with links that occur here.

I give links that will be valuable and provide more background details to the points I want to make. I don’t give bibliographic links just to “sell things” on the blogs, although if that happens as a matter of course, that is certainly all right. Inevitably, it will sometimes. In a few cases I will give links to URLs for motion picture websites or Amazon links for controversial books. Generally, I don’t links for products or services that have a bad “reputation” socially or that have been connected to spam.

I also don’t give links just to improve a site’s search engine ranking. Most newspapers (and the Washington DC and New York area, and to some extent Minneapolis and Dallas area papers) are more available and familiar to me than some other areas, so I may refer to them more often. These papers are already well established on the Web and their rankings would not be affected by blogger links. The same principle obviously holds true for national news services like Reuters and Associated Press. I will use the original Reuters or AP source (rather than a copy on AOL or MSNBC) when I can find it, but I can’t always find it. I do like to give links within the Blogger Community when they are relevant and credible.

Wikipedia is “controversial” in the academic community, but I personally find most of the information there quite reliable, so I sometimes refer to it. Most good Wikipedia articles themselves give original sources at the end of the articles, which visitors should follow to document the facts stated in the articles.

On my Wordpress blog at, I do give a lot of links for bills in progress in Congress on the non-profit site I sometimes do that on the blogs. I use those references instead of the Library of Congress Thomas site because the links seem to work better for me. Sometimes Thomas URL’s have to be copied and re-entered into browsers to work.

I sometimes give direct links to my other blogs or sites for user convenience. However, visitors should know that they can navigate to other blogs very easily from a Blogger page by going to my Blogger Profile and then navigating to the other blogs. Each blog has a set of monthly archives on the left side of the page. Visitors will also find that many of the blog entries now have a “category” link at the bottom of the posting that will cull together previous postings related to the current posting from the same blog. This generally is true for most blogs published by Blogger (and similarly for Wordpress).

I have sixteen blogs on Blogger, in functional areas, and within each there are categories. This makes it possible to drill down and gave some specific categorization for postings. Several of the blogs have less frequent postings, and these blogs tend to deal with specific legal areas of special interest to me (like COPA, trademark law and domain names, network neutrality proposals, identity protection, and Internet safety, and GLBT). There is a blog for general domestic public policy issues, and another for international issues, and still another with technical issues and job search problems for information technology people (since I spent 31 years in IT). This blog is general, and covers ethical and legal trends within the Internet speech area and various kinds of philosophical issues.

The websites emphasize "reference" material that accumulates (like a personal online "encyclopedia" of political opinion, organized around my books), whereas the separate blogs are more like sections of a daily "newspaper." I do offer hyperlinks among the sites and blogs to help the user navigate between reference material and stories for any specific subject. Some media materials, movies and especially many books, have very brief reviews on the main site ( and links to more detailed reviews on the blogs, because the reviews in these cases create "news."

In general, the purpose of links is similar to that of footnotes on term papers in high school and college. Material from the original source will be paraphrased (occasionally quoted under “fair use”) to state the facts or summarize the news events that are relevant to the particular posting. The purpose of the URL link is to document source material and, in the Web environment, provide a convenient place to go for the detailed story from the original source.

Picture: My speaking at a Unitarian group in Minnesota Feb. 3, 2002

Wednesday, May 14, 2008

Yin and Yang; Manipulation and Understanding; Right and Truth

Sometimes when I go to a local AMC movie theater and leave after the credits roll, a porter greets me as I leave. I wonder about that. The conversation, a courtesy in the porter’s mind and probably encouraged by management, seems gratuitous.

I see the same sort of thinking in any situation where a social relationship is needed to get a desired result. Substitute teachers are told they should greet their students as they enter the classroom, probably to establish classroom “control,” but it is a practice that seems gratuitous and for which there is not enough time. People make enthusiastic greetings when on sales calls. It’s always seemed to me to be a put on to create emotion that really does not exist.

Actually, the whole idea of the "chain of command" as it exists first in the military but in corporations in general seems to start with what people call "social graces" (especially in Army Basic, as I experienced it in 1968).

How much of our economic activity that we call networking is directed at finding potential clients, about “getting business.” In many companies, new life insurance agents must develop a certain number of leads to get or keep their new jobs.

Of course, people tell you that real salesmanship is customer service. A financial planner or life agent should analyze a number of potential strategies for a customer. But, of course, the planner is working for the benefit of a specific party.

Many people base their career and life strategies into building social networks in which their position in the network is of primary concern and determines the opportunities that legitimately will belong to them. "Belonging" a social group for the sake of belonging compromises independence in my way of thinking; it sounds like the "Greek" syndrome. It’s easy to miss a lot of the big picture with such an approach. This all sounds like “yin,” the manipulations of the “masculine personality”, the extrovert, without the willingness to look more deeply into truth for its own sake.

One problem, then, is that one needs to understand the issues that can affect all clients in different situations or (as health insurers say) “strata.” One needs to understand a panoply of issues that may come to affect individuals in previously unanticipated ways as demographics, technology, or the external physical environment changes. It’s the willingness to be objective in this last area that so many people who make their living “selling” lack. There is a natural tendency, going with the ego, to resist saying that you don’t understand something fully and have to look even deeper into the onion layers of issues. Yet, they say, you have to “always be closing.”

Monday, May 12, 2008

Science 2.0: can the science and research "establishment" embrace intermediate online publishing and blogging?

The May 2008 issue of Scientific American offers an interesting article on science blogging by M. Mitchell Waldrop, “Science 2.0” on p 69 in print. The basic issue is the capability offered by the web (especially the wiki and networking features of “Web 2.0”) for scientists to post intermediate results of research in various drafts on the Web for others to collaborate. There is a related issue online from January 9, 2008 “Science 2.0: Great New Tool, or Great Risk?: Wikis, blogs and other collaborative web technologies could usher in a new era of science. Or not”. The link is here.

This development seems like a culture change to science, that is used to exercising great care in developing publications in pricey science journals. Academic careers depend on a track record in publications (“publish or perish”) and patents or “scoops” could be put at risk. I can imagine that a similar concern exists for motion picture scripts and “creative ideas”, resulting in the “third party rule” common in the motion picture business for submissions.

The rapid availability of scientific information becomes a sensitive matter when the information may have political or even legal consequences. Imagine the possible problems: putative links between mercury and autism, between genetics and sexual orientation, data about communicability of infectious diseases. Of course, the matter would be very sensitive in an issue like global warming. On the one hand, the public needs the data ASAP, and needs some sort of “knowledge matrix” to place the new data into context.

The article suggests that “Science 2.0” needs a “reputation management system” to track those who post in the science forums. (P. 71) Maybe a new branch of business for Michael Fertik and “Reputation Defender”? However, individuals who post must be registered and belong to the organizations that do the research. Furthermore, the collaborative wiki software provides audit stamps and backout abilities, and could identify any vandalism if it ever occurred. Sometimes people prefer to remain anonymous when commenting, as they are careful about their own future "reputations."

A good example of a collaboration site is OpenWetWare.

There is also some discussion of more informal public blogging by scientists about their projects. A good example is "Useful Chemistry" on blogger, here.

By the way, I love the print font of the numbers on Scientific American magazine pages. They look like real numbers, just like in grade school.

Thursday, May 08, 2008

Bill of Rights 2 Symposium: What would it deal with, in view of current issues?

Visitors to my blogs and sites may get the impression that I am the messenger of the “anti-Gospel,” that I am conveying all the bad news and dangers (multiple “inconvenient truths”) that I see around and cataloging them.

I do think it’s necessary for “the public” to get a clear handle on what is going on about all of these issues (global warming, pandemics, terrorism, demographics, economics, energy, health care, etc) without having to depend on a religious, familial, or even political authority structure to spoonfeed it to everybody. The Wikipedia approach is certainly important, and I’ve tried to develop a way of cataloging the way people argue their opinions on these issues. I do think that the “Opposing Viewpoints” concept of that recent book series from Greenhaven, or even older publications such as the comparative government comparison columns as far back as the 1950 World Book Encyclopedia, are all efforts in this direction.

I do think we need to focus on the question of maintaining individual liberties in the face of these challenges. I’ve said before that we could contemplate a “Bill of Rights 2” and a “Bill of Responsibilities” concurrently. So I propose (I could say, “move”, if blogging had to follow Roberts Rules of Parliamentary Procedure, which it doesn’t) that a foundation set up a major public forum on this question. I think that the foundation could comprise law schools of a number of universities. If such an effort were to be mounted, I would like to see the colleges and universities which I have attended or with which I have had some connection in the past organize it. These would include William and Mary, George Washington University, the University of Kansas, and perhaps the University of Minnesota and Hamline University, and the University of Texas. (Actually, both Kansas and Missouri have major law schools in Kansas City.) I can imagine that such an event would well be conducted in Williamsburg, given historical significance; or there could be multiple events in a number of cities around the country (Dallas, Minneapolis, Kansas City, etc.)

To get a handle on the personal freedom issues, one must face the technical aspects of these “inconvenient truths” squarely. What needs to happen is a point-by-point comparison of the most critical parts of argument. Often, the most critical concerns are mathematical in nature. Al Gore made this point well in his “Inconvenient Truth” about global warming, about the rate of increase in temperatures, carbon dioxide concentrates, and rate of decrease in ice cap mass. Essentially, he was talking about the calculus concept of derivative, which is always one of the most critical things to watch when anything that affects economic stability is changing rapidly. There are many points to wonder about, such as why our system is so slow to develop new vaccines. And there would be many critical points of comparison on oil discovery and production peaking, on likely additional reserves, and about the infrastructure and engineering issues for retooling automobiles to use much less fossil fuel and to grow biofuels much more efficiently. Personal liberty can be protected perhaps by “working smart,” a term well known from the workplace where deadlines are such an issue.

In the past, it has been common for governments to depend on consulting firms for detailed prospective statistical reports. There is the “K Street Problem” where most of them are generated and paid for by consulting firms hired by lobbyists and various interest or trade groups. I worked for such a company in 1988-1990 in the Medicare issue, so I know how the system works. Today, the public needs to do this much better.

Another point that bears on all of this delivery of “the tidings” is the examples set by history. For the past few decades, we have a track record of muddling through crises, somehow. When I came of age, we dealt with the Domino Theory, largely exaggerated but not during the Cuban Missile Crisis, which our own foreign policy may have first aggravated. We all know the history of Vietnam, the "unfair" draft, Watergate, and the protests. In 1973 we had the first oil shock, starting with an outright Arab oil embargo, and another shock in 1979 related to Iran. In each case we adjusted after steep price increases. Of course, there was a lot of finger pointing and of manipulations by oil companies about “getting the price up.” Is that true this time? During an election year, it’s inevitable that there will be.

Of course, we all know our situation with military and foreign policy. As in the First Persian Gulf War, and with the quick fall of the Taliban and of Saddam Hussein, we are the Yankees of conventional military power. And, as with Vietnam and now Iraq, we can't keep the peace among peoples whose cultural and religious values are so far from our own of emerging individualism, people who are willing to misuse asymmetry.

There was another math lesson with the AIDS epidemic: the rapid and exponential doubling of cases and deaths with a circumscribed population. That pretty much proved something novel had happened and answered all the denials. Rapid improvements in medicine (all things considered), and behavior changes led to a slow down and leveling off of cases in gay men, even as the disease moved like a hurricane into other populations.

It seems like it is lack of mathematical cognition (in combination with "greed" that is supposed to be "good") that lets the public get duped into legal scams, like the subprime mortgage crisis (the 5 year "balloon"), and lets history keep repeating itself (1929; the savings and loan scandals of the late 1980s, etc). We could all use a little more of Charlie Epps (as in the CBS hit "Numb3rs").

Any time there is an external change affecting society that threatens to demand sacrifices of citizens, there will always be fierce political battles and blaming. We have to get beyond that this time. This time, our level of democracy has to show more personal integrity that what you get by throwing money at lobbyists, who then encourage individuals to mass email form letters to legislators to avoid being made “it” in the struggle. People do sometimes take an "we're all in the same boat" attitude toward political issues (reminds one of closed shop unionism -- also reminds me of comments that students had about organic chemistry in college), when non-adversarial innovative solutions might be available -- whoever and whichever party is in office. But it's true, some of the coming problems can force individualists into accepting more interdependence with others (within and outside of the family) on terms other than theirs.

This brings me back to the social issues. In terms of professional research, the issues involve studies on marriage, divorce, child school performance and behavior, birth rates and replacements (within each group), longevity, health and custodial care costs and responsibility, and the like. There's a wide range of interrelated data to compile. I’ve detailed in my blogs how I lost personal freedom during my coming of age. One can say it was bigotry or McCarthyism or plain discrimination and write it off, but in my history there are some things and issues that are more individualized. Other people needed certain “things” of a psychological reinforcement nature, and my expression myself made them feel that would loose their own psychological investments in social conformity. Older societies often are very protective of family stability as it connects to gender roles, often at the expense of people like me, because these societies make no assumption that external stability, necessary for individualism, can be presumed, and that on a personal level sacrifice will always occur. (There is a lot of nuance underneath this, as explained in previous posts.) What I think is important in a civil forum that deals with the nuances of what people need from each other with regard to theses issues.

Tuesday, May 06, 2008

Newseum weighs in on First Amendment protections for students (and teachers)

As I have noted recently on these blogs, the recently opened Newseum in Washington DC has an effective exhibit on the First Amendment, and contains panels on student speech rights in public schools. It also exhibits the “Bong Hits 4 Jesus” banner from the case that went before the Supreme Court. (Oct. 26 on this blog; more details on my COPA blog here. Of particular concern in the exhibit is the possibility that a diary or blog depicting a school incident as “fiction” could be perceived as a “threat” by school system administrators. I had reported this on this blog April 18, but have found more specific information there in a visit yesterday. This information affects a specific situation that I had myself in the school system, as I will show below.

The Ethics exhibit, on another Newseum floor, offers a quiz on the First Amendment for both adult and student issues. That quiz appears alongside some "ethics in journalism" "games" on nearby terminals that I got around to visiting Monday. One particular question on the T-F quiz concerns whether a school principal may censor the Myspace or Facebook page of a student. The Newseum’s answer is that, according to the First Amendment, a school administrator may not, unless an actual disruption to security or the learning environment has occurred at the school, or, presumably, a credible prospective risk that one will occur exists.

It’s reasonable to presume that the same reasoning applies to teachers as public employees. I’ve discussed before the first amendment rights of teachers on numerous blog postings. I’ve also discussed an incident that I had in 2005 on the July 27, 2007 posting on this blog (see archive links).

According to this reasoning, it’s reasonable to assume that there must have occurred a complaint to the particular school from a parent after I had subbed there, after the parent or student found the file in question at home, probably with a search engine. To fire me, the school district would have to believe that (and this invoked the “fiction” problem discussed in detail on the July posting) my presence in the school system represented a credible risk. From the server logs, as I noted, I saw that the school system looked at numerous other files on my site (including the files that I had actually listed on the sheet of paper) that would establish a context for interpreting the meaning of the specific file that seemed so troubling. I believe that they determined that no credible problem existed.

I had thought that my bringing up my site to an interim teacher in relation to a newspaper editorial that day had somehow pushed the “threshold of credibility,” including identifying me as the author of the file in question (when I did not know yet that they had seen it and been upset by it). However, they obviously were aware of the file before and obviously could have verified that I was the author to any reasonable satisfaction.

There is a long story of missed signals that I won’t replicate here. But the end result is that eventually I taught another semester (in 2007) but was barred from that school. I then stopped for other reasons (including longer commutes and gas prices).

That brings up another issue with the hiring of unlicensed short term subs in many states. Often, administrators have absolute discretion to delist subs (“do not send” or “do not use”) from their schools with no due process and without cause, on the basis of any vague objection whatsoever. The most common reasons for this happening would be (besides not following lesson plans) inability to maintain classroom order and discipline (“poor classroom management” is the euphemism), often a problem with disadvantaged or younger students who may not respect subs to begin with, and complaints about personal Internet activity, and this “reputation defense” problem seems to be becoming rapidly more common. Typically, short term subs do not receive performance appraisals or constructive feedback, because of the abbreviated process with which they have been hired, and are not entitled to “due process” as normal contract (and union-protected) teachers are. First Amendment arguments are not relevant to the absolute discretionary authority of administrators over their own schools with subs.

I had discussed this on the major issues blog (before my Newseum visit) in February, here, and I discussed major media coverage of this issue on that blog April 28, 2008 here.

Monday, May 05, 2008

Karma: the heart of the matter for me

When I was substitute teaching, I had a couple of assignments as an assistant in special education classrooms for some severely disabled high-school age students. I noticed, before the students arrived, that at each desk there as a small photograph of a student and a list of behavioral expectation, in baby talk. My gut reaction, even though I knew the medical need, was to view this as tinged (by the school) with a degree of moralism. Students were to be trained, with rewards, to behave in a manner that they can fit in to society and become productive at some level. They could not just be left to be what they “wanted.”

I experienced something like this from third grade until finishing Junior High School. I was the recess “sissy” and teachers got after me to conform to the expectations of others. In third grade, in fact, my schoolwork suddenly dropped, but then picked right back up when I started piano lessons (and my attention in class and demeanor improved somewhat). The school systems, besides grades, gave us conduct marks on areas like “progress of the pupil as an individual” and “progress of the pupil as a member of the group.” On the later, I got a lot of 3's ("improvement needed").

The fact is, even as an only child, I needed an undue amount of attention to get through things, although I eventually did well in high school, and then in college, at GW, after the William and Mary incident discussed on these blogs (Nov. 28, 2006 entry, look at the archives). My parents did put me through GW when perhaps they could have left me to prove that I could fend for myself (look at the student loan debt issue today), probably because they knew what WM had done was wrong. I would later be "sheltered" from sacrifice in Vietnam when in the Army because of my education. Then, as a young adult, after “coming out” a second time, I had to spend an inordinate amount of effort on my own comfort, even with such things as logistics, to explore my own life, in a world so tilted toward the heterosexual family.

I can imagine an image that a documentary filmmaker could use to convey my circumstances. To improve my social development, my parents helped me convert the back yard into a “field of dreams” where we played a lot of back yard softball in the mid 50s. When the softball got waterlogged by mist and dew, it was heavy and soft enough that it could not easily be batted out of the yard. But I was playing with boys three years younger, an struggling to be competitive with them. As I say, that is easier to show in a movie than to say.

On a recent episode of “Days of our Lives,” the now robot-like Stefano-infected John tells Marlena, “I saved you, so I own you. If I tell you to clean my commode, you do it.” Yup, John could use some sensitivity training.

But you see the point: if it took other people’s resources to make you what you are, to make you productive, you owe them something. You didn’t “do” anything. But you were consuming resources of others, even without realizing it. Your freedom to make your own choices might one day be limited or circumscribed by what you "owe" others and how all this fits into the grand scheme of commitments people have to make and keep. So that gets to be a moral point. (I use the second person impersonally – and informally -- here.)

Now, I’m going to suggest a linkage that sounds like it could have come from one of Barack Obama’s former preacher’s sermons. Yes, disturbing, maybe offensive. That is, a lot of kids and teens have issues. They want their own worlds, that want to live up to their own idea of what life expresses them. In different ways, issues like autism, Aspergers, and anorexia become involved, as can gender identity. I don’t deny that there are different medical and biological issues with these. Of course there are. And they’re different from each other. But they imply someone needing something that will make demands of others in a world that, right now, seems challenged as to finiteness of resources. Ten years ago we were talking like we could produce our way out of everything and afford to give everyone what they want to be themselves. Now we wonder what it “costs” and how it comes from others. Some day we may keep track of personal carbon footprints the way we computer and "publish" FICO scores today. It becomes a moral question, too, with a tone that is all to familiar. In my own upbringing, this kind of question came up with questions like the draft, student deferments, and dangerous compulsory combat assignments. It also came up in questioning capitalism. Today it might come up in debating national service. But underneath all of this is the double-edged moral question of obligation to blood family. Such was the tone of all moral debate when I grew up. That’s why my father was so insistent that I learn to function “like a man.”

That’s where all of these “moral” questions that covered my own coming of age: who serves, who sacrifices, who depends on others without realizing what they are taking, came into play. That links to why the military gay ban ("don't ask don't tell") took on such ironic moral importance to me in the 1990s.

So, I owe something, because of the resources that had to be spent on me, myself and I. Had I been on par, as in the imaginary videos of backyard baseball, playing at my level (so that I could no longer fit in a back yard, even with a soaked softball) I wouldn’t owe the same karma. I wouldn’t have faced the same issues. That doesn’t mean I couldn’t have been gay, but in some fundamental ways I would have respected my own biological essence in ways that I think I didn’t. So I would still have enjoyed a different “different life.”

That seems to be the heart of a moral dilemma as I live it. The potential of what can be expected of me – I’ve covered it before in a few blog postings (see the label below to display them together). Grunt work at 65: graveyard shifts; I’ve seen some seniors working in McDonalds near the outplacement company I visited in 2002. That’s part of this “pay your dues” idea. But the biggest part is emotional karma. I encounter expectations from people to “play family” (even though I didn't continue it biologically or "competitively") accept people into my life on their terms, give emotional empathy comparable to what I needed when I was younger. Yes, that’s karma.

As I wrote twelve years ago in the Introduction to my book, a lot of what we call “homophobia” comes from the idea that parents and families feel cheated. They may believe that connection in their children to family biological “vicarious immortality” (and loyalty to blood as if it were life) is part of their birthright, and essential to their own marriages. They may believe that all sexuality (even fantasy), not just procreative intercourse, should generate risk sharing and family responsibility. Most of all, they may believe that family solidarity is essential to protect individuals in ways they can never be expected to protect themselves. The “public morality” of a half century ago or more assumed these things without saying them. That’s why grooming for complementary gender roles was so important.

People assume that this is all rooted in religion, but really it is just socialization that people come to depend on in order to function. In a nutshell, many people believe (without much articulation) that everyone owes primary blood loyalty, including prioritizing familial-reinforcing personal participation in family usually with marriage and procreation, in order to enjoy the material and cultural benefits of open life beyond family, and to have more than others have. Fifteen years ago I would have almost laughed at the idea; now, even if I don't agree with it, I can't scoff at it. Like all putative virtues, it has plusses and minuses. Both public morality and modern individualism may, given context, encourage racism and other discrimination, or both may counter it. It all comes back to carrying out of individual karma.

Thursday, May 01, 2008

Pro IP Act advances in House: makes independent artists nervous about tightening of copyright laws

The House bill (HR 4279) colloquially known as the “Pro IP Act” would create an “Intellectual Property Czar” under the White House, although the administration seems to be cool on the idea. The bill was passed by a House committee April 30. The “IP Czar” concept, some lawyers say, could create what amounts to conflicts of interest in how to prosecute certain kinds of copyright offense. The House, in proposing and advancing the bill, seems to be reacting to pressure from the entertainment industry with outrage over the level of piracy of DVDs overseas. I’ve always had a problem with believing this, as I wonder about the quality of such DVDs. Theaters have sometimes prosecuted customers for attempting to camcord scenes from movies in theaters, even though trailers of high quality are widely offered on the Internet for free by the studios themselves. The bill is backed by NBC-Universal’s John Zucker. I’ve provided detailed Govtrack links here (look at the May 1 entry, and then compare to the bills in the earlier entry).

The bill has numerous provisions, including a safe-harbor clause for errors in copyright registration, and tightening of imports and exports. Some people feel that the law could affect independent artists.

The bill is opposed in the tech community, possibly because some of its provisions could hamper the way search engines and blogs work and provide legitimate advertising.

The news story by Frank Ahrens in The Washington Post is “House Bill to Create Anti-Piracy Czar Advances,” on the front page May 1, link here.

Gigi Sohn, president of Public Knowledge, has suggested that the bill becomes acceptable when it includes provisions to allow artists to use “orphaned works,” as provided in a related bill HR 5889 (see wordpress link above). Here is the group’s Press Release.

Here is a reference link to blogs on HR 4279

Generally, independent artists (filmmakers, musicians) are not as vulnerable to losses from piracy as are large music and film companies that depend on "cash cow" hits for profitability.