Tag: law

New frontiers in child-rearing: How to (not) talk to your kids about fracking

The Guardian reports on a legal settlement, where a Pennsylvania family whose water supply was contaminated by gas drilling, received a payout for their now useless farm, and a gag order banning anyone in the family — expressly including the children, aged 7 and 10, from “ever discussing fracking or the Marcellus Shale”.

During the proceedings, the attorney representing Range Resources, Williams Gas/Laurel Mountain Midstream and MarkWest Energy, reaffirmed the gag order on the children. “I guess our position is it does apply to the whole family. We would certainly enforce it,” he told the court.

The parents in this case did warn of the limited reach of the court:

We can tell them, they can not say this, they can not say that, but if on the playground…..

I know I have enough trouble getting my own children to stop talking about oil and gas exploration on the playground. It’s hard to imagine any court being willing to enforce an order penalising people for discussing certain topics because of an agreement their parents entered into, but the mere threat (and legal expenses) might intimidate them from ever challenging it.

Imagine the potential: Fundamentalist parents could enter into gag orders with their church, forbidding the children from ever speaking about Darwin or evolution. Many parents would happily sign a gag order blocking their four-year-olds from discussing poopy pants or boogers.

And why stop at one generation? Just imagine if, instead of fighting for the loyalty of consumers, generation after generation, a company like Coca Cola could simply pay current consumers to commit themselves and all their descendants to never mention the name of Pepsi, or any other cola drink. And while we’re selling off the rights of our descendants, we might as well replace the whole problematic student loan market with selling off our firstborn children into slavery. (Perhaps they can be chained to desks in the university admissions office, forced to read through 80 thousand personal essays.)

The whole idea of gag orders disgusts me. Paying someone not to talk about a subject… Why does that remind me of something absurd?…

Privacy rights in Germany

Unlike the US, Germany has a constitutional court that doesn’t kowtow as soon as the government yells “National Security”. Whereas the US Supreme Court has chosen to rewrite Catch 22 as a legal judgement, saying effectively that no one has standing to challenge secret government surveillance programs, because they are secret, hence no one can prove (using information the government will allow to appear in open court) that they have been affected.

Deutschlandfunk’s science programme Forschung Aktuell has been reporting this week on problems of information technology, security, and privacy, and today I learned (transcript in German)

In 2001 the police chief of Baden-Württemberg Erwin Hetger demanded a programme of advance data storage, by which all connection data of web surfers in Germany would be stored for six months.

“I think we cannot allow the Internet to become effectively a law-free zone. Hence my clear and unambiguous recommendation: Whoever moves about on the Internet must be willing to accept that his connection data are stored for a fixed period of time.”

The Bundestag did, in fact, pass such a law in 2007. But in 2010 the Constitutional Court annulled the law.

While such advance data storage is not necessarily impossible under the German constitution, the constitutional requirements for such an action would be very strict, and were not satisfied by the law that was passed.

The president of the Constitutional Court Hans-Jürgen Papier specifically emphasised that if such data were to be stored, it would have to be done in a more secure way than the law had required.

The comparison of this process — where the basic parameters of privacy rights and government snooping are set by the normal democratic process of legislatures passing laws that are then reviewed in publicly accessible court decisions — just makes clear how supine the US courts and Congress have been, as has been the UK parliament.
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Blackmailing Uncle Sam

Glenn Greenwald, the Guardian journalist responsible for the NSA disclosures, may be going a bit too far into spy noir territory. In a recent interview he announced that

Snowden has enough information to cause harm to the U.S. government in a single minute than any other person has ever had. The U.S. government should be on its knees every day begging that nothing happen to Snowden, because if something does happen to him, all the information will be revealed and it could be its worst nightmare.

I am not making moral judgements. I find this rhetoric understandable, though clearly, whatever Snowden’s motives — and no one in politics has unmixed motives, nor should they be expected to have — by placing this dangerous information in the hands of persons unknown with some kind of dead-man’s trigger, he’s clearly increased the likelihood of it being released accidentally, which is quite a responsibility to take upon oneself.

But I’m thinking about Greenwald’s position. So far, despite the wish of some grandstanding congressmen to criminalise his role, Greenwald has clearly been a journalist. The Obama administration seems eager to draw some kind of line between “real journalists” and everyone else to prevent his administration’s witchhunting from completely gutting press freedom, so they might have played along. But they seem eager to prosecute national security leaks to the extent that they can find a bright line separating a given case from the bulk of journalism. Greenwald has given it to them, and I would be surprised if there were not a secret grand jury preparing charges against him for attempting to pervert the course of justice, or whatever the US federal term is for that.

However he meant it, Greenwald’s announcement sounds an awful lot like the language of blackmail, and that’s surely plenty of a hook for them to hang him on. This moves him from being a reporter to being a participant or, as I’m sure they’ll phrase it in the indictment, a co-conspirator. Blackmailing the feds is a pretty heavy game to play.

[Update 7/15: Greenwald has commented on his remarks, and it definitely looks as though Reuters has gone out of its way to frame a defence of Snowden’s motivations — he has held on to a lot of information that could be of great value to enemies of the US which he has not divulged, though he could reap significant rewards for it — in the theatrical argot of a mobster’s shakedown. That doesn’t change the fact that it’s not hard to imagine creative prosecutors twisting this story into a noose for an uncomfortable journalist; and that Snowden is playing a very dangerous game — just to make one obvious point, not everyone who might be in a position to harm him is opposed to his info bomb being detonated. Beginning with his current hosts…)
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Respecting the Constitution

Back when Barack Obama was first running for president, one argument for his candidacy that resonated with me was that a professor of constitutional law was just the sort of person we needed to clean up the war crimes and other illegalities of the Bush years. What they — and I — forgot is the converse of the dictum on laws and sausages often misattributed to Bismarck, that those who acquire expertise in the workings of the law are rarely those who hold them in great respect. To put it differently, when people spoke of cleaning up the illegal activities of the Bush administration, what they (and I) understood was a retreat into general respect for constitutional principles.

But what a lawyer is likely to mean — and Obama is certainly, above all, an ingenious lawyer — is working to map out the exact limits of the law and the president’s authority, to be sure that illegal is cleanly separated from legal, while no iota of presidential power is given up because of unnecessary scruples about the law.

The president’s legal advisor will inevitably have difficulty fulfilling his duty to warn his client away from encroaching too near on the border of illegality. The task is impossible when the client is himself.

This is not to say that someone who abuses a security clearance to leak secrets — however righteous his motives — does not deserve to be punished. It is the job of the president to defend the law. But Obama has shown enormous willingness to forgive the crimes committed from within the government, though these were horrible violent crimes. People like Snowden and Assange, whose crime is mainly to embarrass his government, are pursued with every legal tool at his disposal.

One of the things I most respected about Obama was his commitment to lowering the temperature on issues that had inflamed passions in Washington and beyond. Even when the right wing rebuffed his overtures, I respected the effort. But on the crucial issue of government secrets he seems to be intentionally driving matters to a fever pitch, asserting powers that he, in principle, might be entitled to, but that his predecessors have generally not dared to wield. The fact that he needs to reach back to a legal tool forged in the panic of WWI and barely touched since would give pause to a man less certain of his own righteousness.

I fear that the opponents of Obama who described him as a megalomaniac narcissist may have had some genuine insight that eluded me.

Secret laws

I think it was from Solzhenitsyn, somewhere in The Gulag Archipelago (though I can’t find the quote right now, so maybe it was some other source) that Stalin was supposed to have ordered that the Soviet criminal code of the 1930s not be published, with a declaration something like “The only people who want to know what the law says are those intending to break it.”

This seemed to me like merely a good example of the Looking-Glass logic of totalitarianism until I read in Jane Mayer’s The Dark Side about the secret legal opinions that undergirded the Bush torture regime. It’s true that you can’t have secret laws in the US — at least, I think it is — but reinterpreting the law, and making the reinterpretation itself and the underlying reasoning secret, comes pretty close. It’s hard to say you’re still living under the rule of law — in a Rechtsstaat, as the German word says pithily — when the government is constrained only by its own secret interpretation of the law.

And now we have, in the blossoming scandal of US government surveillance of private citizens, the main documents demonstrating government malfeasance are secret court orders justified by secret executive-branch legal opinions.

I am reminded of when my 10th grade history teacher told us that the US Constitution was so inspiring that even the Soviet Union and other totalitarian states had mimicked some of its language in framing their own constitutions, even if their practice was very far from the true meaning of those words. This was supposed to give us a lesson about the perfidy of the Soviets, I suppose, but I asked then — snotty kid that I was — whether that didn’t just mean that a constitution is useless for protecting individual rights.

Consent of the governed

Speaking at the recent Conservative party conference, a government minister has said that the mass arrests and prison sentences for decent citizens who chose to rob shops and set buildings ablaze in London and other cities during a recent wave of looting, had brought the law into disrepute.

Our laws against arson were introduced centuries ago, when a typical London building was built of wood. There have been huge advances in fire-fighting technology since then. Our blanket ban on arson has been discredited, because it failed to keep up with these changes. And what about “vandalism”? Should the law really be fixated on the practices of wandering bands of hairy Germanic tribesmen? Can anyone genuinely say he thinks our laws against burglary are fit for a 21st century economy? By allowing a portion of the shops’ overpriced merchandise go up in flames, and another portion to the informal vending sector, where it is substantially marked down, we bring thousands of decent firebugs and thrifty shoppers back within the law, restoring the legitimacy of the penal system, improving productivity and delivering hundreds of millions of pounds of stimulus that the economy sorely needs.

No, sorry, I got that wrong. The correct quote is:

The 70mph motorway speed limit has become “discredited” and resulted in millions of motorists breaking the law, Transport Secretary Philip Hammond said today as he confirmed plans to consult on allowing it to rise to 80mph.

Mr Hammond told the Conservative Party conference the move would “restore the legitimacy” of the system and benefit the economy by “hundreds of millions of pounds”.

He said: “The limit that was introduced way back in 1965 – when the typical family car was a Ford Anglia.”

Mr Hammond said he owned an Anglia, as did Baroness Thatcher when she became an MP, but added: “Things have changed quite a bit since then. There have been huge advances in car technology, road deaths have been reduced by three-quarters.

“Meanwhile, the 70mph limit has been discredited because it failed to keep up with these changes – with almost half of all motorists exceeding it, bringing the law into disrepute.

“So I will consult on increasing the limit on motorways to 80 mph, bringing millions of decent motorists back within the law, restoring the legitimacy of the speed limit system, speeding up journey times, improving productivity and delivering hundreds of millions ofpounds of net economic benefits.”

We should start making a list. Laws that need to be ruthlessly enforced when they are disobeyed en masse: Arson, burglary, “theft by finding”, receiving stolen goods. Laws that need to be abolished when they are disobeyed en masse: Tax laws, speed limits. Hmmm. What’s the pattern? Prosperum ac felix scelus virtus vocatur. [Seneca. A successful and happy crime gets to be called virtue.]

Of course, Monty Python nailed it while I was still a toddler. In this case, the Mouse Sketch:

Make a thing illegal and it acquires a mystique. Look at arson – I mean, how many of us can honestly say that at one time or another he hasn’t set fire to some great public building? I know I have. The only way to bring the crime figures down is to reduce the number of offences.

British riots, further reflections

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From the BBC web site:

Home Secretary Theresa May has asked the Metropolitan Police to check whether banning theft and arson is an effective strategy for preventing crime. Some criminologists have claimed that widespread looting and arson mean the laws are not having the desired effect. Speaking on BBC Radio 4’s Today programme, Mrs May hinted that the riot laws remained under review. She added: “There’s not much point in having laws that are inefficient.” She suggested that the funds currently spent on policing might be better spent on reconstruction.

No, sorry, I got that wrong. It wasn’t the Home Secretary, it was the Chancellor of the Exchequer. The correct quote is:

Chancellor George Osborne has asked the Inland Revenue to check whether the 50p top rate of income tax is actually making money for the government. Some economists have claimed that tax avoidance and evasion mean the rate is raising less income than expected. Speaking on BBC Radio 4’s Today programme, Mr Osborne hinted that the 50p rate remained under review. He added: “There’s not much point in having taxes that are very economically inefficient.”

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