Too Big to Jail

Back during the bailout, the phrase “too big to fail” was used to refer to corporations that were regarded as too important to the economy to allow them to fail. To prevent these failures (or so it was claimed) public funds were deployed. While it seems blindingly obvious that a multitude of misdeeds lay behind the meltdown, the federal government has not engaged in a single prosecution. More recently, Holder’s Department of Justice decided not to prosecute HSBC despite the fact that they had apparently been engaged in rather serious money laundering. This created a new phrase, “too big to jail.”

Interestingly, the legal trail of “too big to jail” can be traced back to a 1999 memo by Eric Holder entitled “Bringing Criminal Charges Against Corporations.” While the memo does not assert that executives cannot be prosecuted, it does provide an excellent escape hatch for big corporations. To be specific, Holder contends that the state should consider “collateral consequences” when making decisions about prosecuting corporate crimes.  Holder seems to still hold to the principles of the memo and while Obama has been attacked as being an anti-business socialist, the Department of Justice has been extremely gentle in its response to white collar crimes committed by the top folks in big corporations.

On the one hand, the idea of considering consequences does make sense from a utilitarian standpoint. If, for example, prosecution would create more harm than good, then it could make excellent moral sense not to prosecute. However, there is is the utilitarian concern that the practice of  allowing corporate criminals to avoid prosecution on this principle would do harm to the legal system as a whole by undermining public faith in its justice. On the other hand, the idea that people (and corporations are legal people) can avoid prosecution because applying the law to them would result in collateral consequences seems rather contrary to the idea that no one is above the law. While I do believe that justice can involve considering the consequences, justice also seems to require consistency in the law-and allowing corporate criminals a special out seems to be unfair and inconsistent.

In 1999 Holder also advanced the notion of deferred prosecution for corporations. Under this principle, corporate defendants can be given what amounts to amnesty in return for a fine (usually small relative to corporate earnings), reforms and cooperation. This principle is connected to the principle about consequences in that a plausible reason for allowing this deferred prosecution is to keep a corporation going-and thus keep people employed. During the Arthur Anderson incident, the state brought criminal charges against the company and this resulted in the loss of about 28,000 jobs when the company failed.

On the one hand, this principle does have appeal. After all, prosecution could result in the destruction of a corporation and this could harm people who are actually innocent of wrongdoing. Deferred prosecution would, in theory, allow the problems to be addressed while avoiding the destruction of the corporation. On the other hand, there is the obvious concern that prosecution might be “deferred” forever. Even if the deferment is not eternal, there is the concern that the punishment will not be serious enough to deter future behavior.  So far, the fines that have been paid by corporations tend to be small relative to their yearly profits and it seems unlikely that such punishments will have a significant deterrence value. After all, if a corporation can make massive profits doing illegal things like money laundering and then  pay what is, to them, a moderate fine, then there is little incentive to avoid such illegal activities. To use an analogy, if I took up robbing banks and my punishment was that I had to pay a fine equal to a modest percentage of my stolen money, then I would have little incentive to stop robbing banks. As might be guessed, this is a problem.

Overall, the principles of considering collateral consequences and allowing deferred prosecution are not without merit, at least on the surface. However, while the application of these principles might result in short term goods (like preserving corporate jobs), they seem likely to create long term evils-namely a situation in which corporations are ever more likely to engage in misdeeds because they know that the punishments will be fairly minimal. However, the overall consequences of this will be rather bad, such as companies destroying themselves and the economy. Too big to fail and too big to jail are bad ideas and it is far past the time that the approach to corporations be changed.

Mental Illness, Violence & Liberty

 (Photo credit: Wikipedia)

The mass murder that occurred at Sandy Hook Elementary school has created significant interest in both gun control and mental health. In this essay I will focus on the matter of mental health.

When watching the coverage on CNN, I saw a segment in which Dr. Gupta noted that currently people can only be involuntarily detained for mental health issues when they present an imminent danger. He expressed concern about this high threshold, noting that this has the practical impact that authorities generally cannot act until someone has done something harmful and then it can be rather too late. One rather important matter is sorting out what the threshold for official intervention.

On the one hand, it can be argued that the relevant authorities need to be proactive. They should not wait until they learn that someone with a mental issue is plotting to shoot children before acting. They certainly should not wait until after someone with a mental issue has murdered dozens of people. They have to determine whether or not a person with a mental issue (or issues) is likely to engage in such behavior and deal with the person well before people are hurt.  That is, the authorities need to catch and deal with the person while he is still a pre-criminal rather than an actual criminal.

In terms of arguing in favor of this, a plausible line of approach would be a utilitarian argument: dealing with people with mental issues before they commit acts of violence will prevent the harmful consequences that otherwise would have occurred.

On the other hand, there is the obvious moral concern with allowing authorities to detain and deal with people not for something they have done or have even plotted to do but merely might do.  Obviously, there is rather serious practical challenge of sorting out what a person might do when they are not actually conspiring or planning a misdeed. There is also the moral concern of justifying coercing or detaining a person for what they might do. Intuitively, the mere fact that a person could or might do something wrong does not warrant acting against the person. The obvious exception is when there is adequate evidence to establish that a person is plotting or conspiring to commit a crime. However, these sorts of things are already covered by the law, so what would seem to be under consideration would be coercing people without adequate evidence that they are plotting or conspiring to commit crimes. On the face of it, this would seem unacceptable.

One obvious way to justify using the coercive power of the state against those with mental issues before they commit or even plan a crime is to argue that certain mental issues are themselves adequate evidence that a person is reasonably likely to engage in a crime, even though nothing she has done meets the imminent danger threshold.

On an abstract level, this does have a certain appeal. To use an analogy to physical health, if certain factors indicate a high risk of a condition occurring, then it make sense to treat for that condition before it manifests. Likewise, if certain factors indicate a high risk of a person with mental issues engaging in violence against others, then it makes sense to treat for that condition before it manifests.

It might be objected that people can refuse medical treatment for physical conditions and hence they should be able to do the same for dangerous mental issues. The obvious reply is that if a person refuses treatment for a physical ailment, he is only endangering himself. But if someone refuses treatment for a condition that can result in her engaging in violence against others, then she is putting others in danger without their consent and she does not have the liberty or right to do this.

Moving into the realm of the concrete, the matter becomes rather problematic. One rather obvious point of concern is that mental health science is lagging far behind the physical health sciences (I am using the popular rather than philosophical distinction between mental and physical here) and the physical health sciences are still rather limited. As such, using the best mental health science of the day to predict how likely a person is likely to engage in violence (in the absence of evidence of planning and actual past crimes) will typically result in a prediction of dubious accuracy. To use the coercive power of the state against an individual on the basis of such dubious evidence would not be morally acceptable. After all, a person can only be justly denied liberty on adequate grounds and such a prediction does not seem strong enough to warrant such action.

It might be countered that in the light of such events as the shootings at Sandy Hook and Colorado, there are legitimate grounds to use the coercive power of the state against people who might engage in such actions on the grounds that preventing another mass murder is worth the price of denying people their freedom on mere suspicion.

As might be imagined, without very clear guidelines and limitations, this sort of principle could easily be extended to anyone who might commit a crime—thus justifying locking up people for being potential criminals. This would certainly be wrong.

It might be countered that there is no danger of the principle being extended and that such worries are worries based on a slippery slope. After all, one might say, the principle only applies to those deemed to have the right (or rather wrong) sort of mental issues. Normal people, one might say in a calm voice, have nothing to worry about.

However, it seems that normal people might. After all, it is normal for people to have the occasional mental issue (such as depression) and there is the concern that the application of the fuzzy science of mental health might result in incorrect determinations of mental issues.

To close, I am not saying that we should not reconsider the threshold for applying the coercive power of the state to people with mental issues. Rather, my point is that this should be done with due care to avoid creating more harm than it would prevent.

 

My Amazon Author Page

Begging

Image via Wikipedia

While driving home from work, I saw a man by the side of the road holding out his hat. He was obviously hoping people would put money in it. This got me thinking about begging.

I am, I admit, often an easy mark for beggars. Part of it is emotional-like most people, I have compassion and I am moved by people who seem to be need. Part of it is based on my moral principles: a good person helps others and I have a duty to my fellows when they are in need. Part of it is based on moral reasoning, specifically reversing the situation: if I were in desperate need, I would want people to assist me. Hence, I must be willing to aid others (kind of a Kantian thing).

When I was younger, I tended to give without thinking because I assumed that the beggar was in dire straights because of an unfair system and was working to get back into the game. That is, I had the usual young liberal view. I was, however, not an idiot: I knew that some people doomed themselves and I never foolishly put myself in danger. However, I found that my sympathy did not vanish even in cases where a person obviously just wanted the money to buy drugs or alcohol and had no intention of ever returning to mainstream society.

As I grew older, I thought a bit more about the matter of begging. As noted above, one reason I tend towards generosity is because I can imagine myself in need and I would want others to help me. However, I do have a hard time imagining myself begging. This is mainly because I believe in reciprocity: if I am to receive, I must also be willing to give in return. This need not be a crass and soulless exchange of money. For example, one person who was begging told me an amazing story about being abducted by a very strange cult and his adventures escaping from them. While it was almost certainly not true, the story was so good and well told that he certainly earned the $5 I gave him. However, a person who can offer others nothing at all would seem to have little grounds for expecting others to provide aid. After all, if I have nothing to offer others now or ever, it would seem rather selfish of me to expect them to give to me. That said, some religious folk describe God as doing just that: we have nothing to offer Him, yet He is supposed to give generously to us. As such, if God is so generous to us, perhaps we (or at least those who believe in Him) should emulate Him in this matter.

Getting back to the main point, if I found myself in dire straights and stripped of my job, house and possessions I would, of course, endeavor to regain what I had lost. I would be willing to accept assistance from family and friends and even the state (after all, I have been paying into the system  for years). However, I would not ask strangers for aid. This would be, in part, due to pride. But it would also be based on my values: I cannot reasonably ask them to give to me in return for nothing.  As noted above, it is the height of selfishness to expect others to simply give. But, honesty compels me to say that it is hard to know what one would truly do until such time as one must make that choice.

I was asked, once, whether I would beg or turn to crime if life’s road ended up in a place where I could gain no legitimate employment. My immediate response was “crime.” However, I added that I would only prey on the wicked and would not harm the innocent, honest and good even to stay alive. Fortunately (or rather unfortunately), there are plenty of wicked people who have lots of stuff-so until my inevitable violent end, I would probably be doing pretty well.

$360 Million

Have you seen this lost money?

I recently heard that the US military lost about $360 million in Afghanistan. My first thought was, of course, “at least it wasn’t billions, like in Iraq.” The money was not misplaced or left in a bathroom like a wayward umbrella. Rather it seems that it ended up being funneled through whatever passes as legitimate businesses in Afghanistan into the criminal world. Some of the money seems to have ended up in the coffers of our enemies, thus continuing our long standing tradition of funding folks who are trying to harm us (yes, I am looking at you Pakistan).

Having become cynical about such matters, I was not at all surprised by this. As noted above, I actually thought that it would be more than a mere $360 million. I do try not to think about what this wasted money could do in the United States. For example, I try not to imagine that even a modest chunk of it could have helped FAMU and FSU with their budget woes. I am accustomed to the folks “in charge” throwing away money. I resent it and use my limited capabilities to rail against it, but in the end the government folks seem incapable of preventing this sort of thing.

To be fair, perhaps this is just how things work. In the United States we have modest corruption, mainly because of our laws and traditions. Some other countries lack such laws or, if they have them, they still lack a tradition of integrity. In some cases, bribery, corruption and other criminal activities are the tradition. I would like to think better of Afghanistan, but perhaps it is essentially a criminal culture-or at least the people that we have unwisely elected to do business with are part of a criminal culture. I suspect the latter over the former.

The United States has an unfortunate history of supporting the wrong people (like the Shah of Iran) and of failing to properly control the millions and billions that we dump in other countries. While this money is tiny compared to our massive debt, these tiny drops do add to that ocean of debt. Apparently we are also bad at learning from past mistakes and seen incapable of avoiding being duped by financial criminals-our own and those in other countries. It is, to say the least, embarrassing to read about our financial idiocy.

 

Crime & the Economy

Image via Wikipedia

While the causes of crime are no doubt many and varied, common wisdom holds that there is a connection between crime and economic conditions. More specifically, it is often claimed that poor economic conditions lead to more crime. This, of course, seems sensible enough. After all, people who are short of money might well turn to crime out of desperation.

Since the mainstream economy is still not doing well, it would seem reasonable to expect an uptick in crime. Interestingly enough, the FBI recently reported that violent crime has decreased by 5.5% and property crimes have declined by 2.8%. This, of course, seems to indicate that the alleged causal connection between poor economic conditions and crime might not hold true. Before rejecting the alleged link, it seems reasonable to consider the matter in more detail. After all, the FBI’s statistics is for crime across the country and the overall decline is consistent with actual increases in some areas of the country.

In fact, there are areas in which crime has increased. The Northeast has actually seen an 8.3% increase in murders as well as rather small increases in forcible rapes (up 1.4%) and aggravated assaults (up .7%). Not surprisingly, certain cities are also suffering from higher than average crime rates.

The data indicates that the cities most plagued by crime have established histories of decline and poverty. This is hardly surprising, given that these cities have consistently suffered from crime. While these crime rates have been a legitimate matter of concern, they might also provide a picture of things to come.

While overall crime is down despite the economic downturn, one obvious concern is that if the downturn persists then there will be new places with established histories of decline and poverty. This will most likely result in an increase in crime. Another factor, exacerbated by the both the economic situation and the new focus on reducing the public sector is that police resources are decreasing. Should the economic woes become entrenched, this will (as noted above) most likely result in an increase in crime. It will also mean less tax income which will mean even less police resources to combat the crime generated by the economic situation. This certainly gives us yet another reason to work at restoring the economy.

Naturally, economic conditions are not the only factors involved in crime. Even when the economy has been doing great, crime still remains. Of course, even when the economy is doing great, zones of poverty and decline still exist and are almost always zones of high crime. If nothing is done, we can expect that these zones will expand and that new ones will appear.

Yale & Sexism

Image via Wikipedia

Recently 16 Yale students and alumni announced that their school would be subject to an investigation by the Department of Education’s Office for civil rights. The goal of the investigation is to determined whether or not Yale has permitted the existence of a hostile sexual climate. If so, this could be a violation of Title IX, which requires equal opportunity for men and women and also forbids discrimination based on gender.

Yale was previously in national headlines because of the Yale DKE’s infamous chanting of  such phrases as  “no means yes, yes means anal.” This incident seems to have helped motivate the complaint.

One important aspect of the criticism being directed against Yale is they way it handles allegations of sexual harassment and sexual assault. Like many schools, Yale does its best to handle such cases internally rather than turn the matter over to actual law enforcement.

Author Naomi Wolf, who graduated from Yale, has claimed that “Yale has been systematically covering up much more serious crimes than the ones that can be easily identified.” Wolf alleges that the university has used the sexual harassment grievance procedure to protect the university rather than help the victims.  She went on to make a far more disturbing claim, that several faculty members had allegedly raped graduate students and these incidents (and others) had been hidden within the grievance process.

One of Wolf’s concerns about the lack of transparency is that parents and students cannot “find out what professor has systematically a record, a track record of harassing students, behaving inappropriately or worse, you know, rape.”

I, of course, have no idea as to what really goes on at Yale. However, these claims seem to be consistent with the darker side of university culture.

First, universities tend to operate like other organizations (such as businesses) in that they want to minimize law suits and things that damage their reputations. As such, the idea that a university would engage in practices aimed at such goals has a high degree of plausibility.

While this practice is understandable (after all, law suits and reputation damage are costly), it is hardly justifiable. Problems should be addressed in a proper and just manner, rather than swept into the shadows. In addition to the moral reason to do this, there is also the practical reason that such practices can lead to far greater harms than those they are intended to prevent.

Second, universities are also like other organizations in that there tend to be internal groups whose members protect each other, even in cases in which these members engage in misdeeds (up to and including criminal activity). This is an all too common practice in politics and business, and hence it would hardly be a surprise to see it happen in the context of academics.

While there is a lot to be said for loyalty and not throwing one’s fellows under the bus, it is not morally acceptable to protect people who do, in fact, deserve to be punished for their misdeeds. Concealing these misdeeds and protecting their perpetrators merely makes matters worse, at least from a moral standpoint.

Third, as a graduate student and a professor I’ve heard my share of various rumors and disturbing stories about vile behavior and cover ups. For example, among most graduate students it is common knowledge that there certain professors who get rather  ”friendly” with their graduate students. There are also darker rumors of professors pressuring students or worse. As such, the idea that vile things happen at Yale is not beyond the realm of possibility. Lest anyone think that the academy is dominated by scum, I can assure you that most people in academics are decent and behave in a professional manner-which is true of most organizations. However, there is sometimes an unfortunate tolerance of those who should not be tolerated. This is, sadly, no different from other organizations.

In light of these reasons, there seem to be grounds for being concerned about universities in general and Yale in particular. Of course, there remains the question of what should be done.

Like Wolf, I do believe that there appears to be fundamental flaws in the current system. One flaw law is that cases are handled by what appears to be a non-transparent grievance system that is alleged to aim more at protecting the university than at assisting victims. Another flaw, if Wolf is right,  is that the system seems to be able to protect perpetrators from legal action. While an easy corrective step would be improving the existing system, perhaps a more radical solution is in order

When I first learned that universities could handle what appear to be actual crimes via an internal process, I was somewhat surprised (this was actually years ago). I did accept that some  matters could and should be handled within the university (such as academic misconduct). However, I  had naively assumed that allegations of criminal activity would have to be handled by actual legal authorities rather than by a university board.

While cover ups and misdeeds are possible within the actual legal system, it would seem that their would be somewhat less opportunities for such things than with a system that takes place entirely within the university.  After all, if Wolf is correct, there are professors who committed rape at Yale and were able to remain not only free but also within academics. This is clearly not acceptable and it seems absurd that universities would be able to get away with this sort of thing. As such, it seems reasonable that universities should not be permitted to handle alleged crimes internally but should be required to turn them over to the actual legal system.

This is not to say that universities should not be allowed to handle anything internally. However, alleged activities that are criminal in nature (such as rape) should be handled as crimes and not as matters for internal boards.

 

 

Are Taxes Theft?

Image via Wikipedia

One underlying theme I have noticed in America’s Tea Party movement (and among other folks as well) is the idea that taxes are a form of theft. Interestingly enough, this idea was also put forth by the anarchists. As the (in)famous anarchist Emma Goldman said “…the State is itself the greatest criminal, breaking every written and natural law, stealing in the form of taxes, killing in the form of war and capital punishment…” However, a negative view of taxes no doubt dates back to the first tax.

The first step of the discussion involves laying out an intuitive and adequate account of theft. Obviously, a merely legal account of theft will not do here. After all, if theft is defined as taking property via illegal means, then taxes would almost never be theft-after all, they tend to be instituted by law. As such, what is needed is a moral definition of theft.

Without getting into torturous semantical details, it seems safe to regard theft (at least in this context) as the the unjustified taking of legitimate property, typically via means such as deceit or force. This definition is, of course, easily subject to criticism as not being a sufficient and necessary definition. However, the discussion does not seem to require such a definition. If it does, however, I trust that someone will be forthcoming with a better one.

Obviously enough, states can engage in theft via taxes. For example, if the unelected dictator of a state sends his lads around to take money and valuables from people using the threat of violence, then that would seem to qualify as theft. My focus will not, however, be on such cases. Rather, I will focus on whether taxes in a democratic state can be justly considered theft or not.

One rather clear case in which taxes cannot be considered theft is the case when the citizens vote directly on a proposed tax. If I, for example, vote in favor of a tax, then that tax would not be theft. After all, part of what makes theft wrong is that it involves a lack of free consent on the part of the victim. If I freely agree to pay, then that is not theft. As another example, if I vote for a politician courageous or crazy enough to admit that she will create a new tax, then I have given my consent and cannot claim to have been robbed.

However, the people who voted against the tax or the politician would seem to have not given their consent. As such, the state would be taking their money without their consent and this would seem to be an act of theft.

The stock reply to this line of reasoning is that when people vote, they agree to abide by the outcome-even if it is not the outcome they want. To refuse to do so would be to break that agreement and it would essentially render voting pointless.

The stock counter to this is to point out that there are situations in which going along with a vote would be to go along with something whose evil would exceed the wrong of breaking the agreement to abide by the vote. For example, if a vote was taken to restore slavery, good people should vote against it and should refuse to accept the return of slavery even if it were voted back into legality. In the case of taxes, the question would be whether the evil of the taxes justifies breaking the agreement to abide by the results of a vote. This, of course, takes the discussion far beyond whether taxes are theft or not and into a discussion of the legitimacy of voting. However, if the evil of the taxes justified rejecting the vote, then it would seem that if the state imposed the taxes on the unwilling, then the state would be engaged in theft. The challenge is, of course, showing that the evil of the tax warrants what amounts to rebellion against the state.

Another type of case in which taxes cannot be considered theft is when the taxes are payments for goods and services. For example, if I pay a tax that pays for the roads I drive on, then I am hardly being robbed. To use an analogy, if I have a meal at a restaurant and the bill is brought, it would be absurd of me to cry out that I am a victim of theft because I am being forced to pay for my meal. If I did not pay, I would be the thief.

While this line of reasoning is appealing, people generally pay taxes that are used to pay for goods and services that they themselves do not use or oppose. As such, this justification would seem to fail in such cases. For example, a family that pays for its children to go to a private school would not be using the public schools that their tax dollars support. As such, it would seem that they are being robbed-provided that they do not want to pay these taxes. As another example, someone who is morally opposed to abortion could claim that they are being robbed if some of their taxes are used to pay for abortions. As a final example, someone who opposes war or corporate subsidies could argue that they are being robbed when their tax dollars are used in such ways.

To use an analogy, if I go to a restaurant and I am billed for food I did not order, want or eat, then I would be robbed if I were forced to pay. Likewise for  taxes.

One stock reply to this is that people might think that they do not benefit from what they are paying for, they actually are receiving benefits and hence are paying for goods and services rather than being robbed. For example, the family that does not want to pay for public schools does benefit from having these schools in existence. Of course, this only holds when the taxpayer is, in fact, receiving a benefit.

A second stock reply is that even if the taxpayer is not receiving a direct benefit, they are contributing to the general good or, at least, helping others who are in need. The standard reply to this is that people should be able to decide whether they want to contribute to the general good or help others. To use an analogy, if someone steals from me so as to donate the money to a charity, they are still robbing me. This, of course, takes the discussion from the specific matter of taxes to the more general question of what we owe to others. If people owe nothing to the general good or to others, then a case could be made that taxes that aim at these goals would be theft. This sort of argument would be based on the lack of consent as well as the lack of a moral obligation to provide support in such cases.

There is, of course, a great deal of appeal to the idea that people should only pay taxes that yield benefits to them or that they are morally obligated to pay. Going back to the analogy of the bill, I should pay for what I receive or use, but not beyond that-unless I wish to do so. As such, it could be inferred that taxes that go beyond this would thus be theft for they would involve taking from me without my consent and taking beyond what I owe. Avoiding this would seem to require a tax system that is modeled on a billing system and a volunteer charity system: we would pay for what we used and decide to donate (or not) to what we do not actually use. Working out what each person owes (financially and morally) would be a rather challenging matter, but does seem to be something that could be done. As far as the financial part, companies and businesses already seem to have worked out a system of billing and this could be applied to the state as well. As far as the moral aspects of what we owe, that seems to be something that must be worked out (as a practical matter) via politics. This process will likely result in people being required to pay for things they do not use or agree with, but this would seem to be part of the price of being a citizen of a democracy. This, naturally enough, leads to the questions about voting-but that is a tale for another time.

Should Photographing Chickens Be a Felony?

Image via Wikipedia

I stumbled across SB 1246 by chance rather than design, but I did find it a rather interesting bit of legislation. Trespassing onto a farm will result in a felony charge. Taking pictures at a farm without permission will also result in a felony charge. Lest you think I am making this up, I have pasted in the full text:

Florida Senate - 2011                                    SB 1246 
        

       By Senator Norman

       12-01071A-11                                          20111246__
    1                        A bill to be entitled
    2         An act relating to farms; prohibiting a person from
    3         entering onto a farm or photographing or video
    4         recording a farm without the owner’s written consent;
    5         providing a definition; providing penalties; providing
    6         an effective date.
    7
    8  Be It Enacted by the Legislature of the State of Florida:
    9
   10         Section 1. (1) A person who enters onto a farm or other
   11  property where legitimate agriculture operations are being
   12  conducted without the written consent of the owner, or an
   13  authorized representative of the owner, commits a felony of the
   14  first degree, punishable as provided in s. 775.082, s. 775.083,
   15  or s. 775.084, Florida Statutes.
   16         (2) A person who photographs, video records, or otherwise
   17  produces images or pictorial records, digital or otherwise, at
   18  or of a farm or other property where legitimate agriculture
   19  operations are being conducted without the written consent of
   20  the owner, or an authorized representative of the owner, commits
   21  a felony of the first degree, punishable as provided in s.
   22  775.082, s. 775.083, or s. 775.084, Florida Statutes.
   23         (3) As used in this section, the term “farm” includes any
   24  tract of land cultivated for the purpose of agricultural
   25  production, the raising and breeding of domestic animals, or the
   26  storage of a commodity.
   27         Section 2. This act shall take effect July 1, 2011.

I would think that part one is unnecessary. After all, existing trespassing laws should adequately cover people trespassing on farms and hence no new law should be needed to cover such situations. Unless, of course, owners of farms somehow deserve legal protections that the rest of us are not entitled to enjoy. Naturally, it can be argued that if trespassing on a construction site is a felony (as it is in Florida), then farm owners can help themselves to whatever justifications were given in support of that law. However, there does not seem to be a compelling reason to make trespassing on a farm such a serious offense.

The second part of the law, at first glance, seems rather bizarre. After all, a felony charge is supposed to be reserved for the serious offenses such as aggravated assault, rape, and murder. Snapping a photo of a chicken or taking a film of a cow without permission hardly seems to be a serious offense worthy of the sort of punishment that goes along with a felony. I hope that there will be clear warning markers placed all over such farms. After all, someone who was driving by a farm and decided to snap a photo of some cows and a sunset would be committing a felony and would probably have no idea of the terrible crime they were committing. After all, that is not the sort of thing that a sensible person would regard as criminal activity. I also hope that kids who go on farm tours will be warned prior to taking pictures. While the day might begin with smiles, it would surely end in tears when little Billy and Sally are dragged away by the Farm Police for snapping those pictures of a cow, pig or chicken without written permission.

It might be claimed that the law would be applied with “common sense”, so that the police would not arrest tourists who unknowingly snap a photo of cows at sunset or if someone happens to live by a farm and gets a part of the farm when taking a photo on her own land. However, the law is rather clear in its statement about what is a felony offense (namely any photos of farms) and it seems unreasonable to expect people to rely on the common sense of others as a barrier to felony charges. After all, the law itself seems to have been written by someone lacking such sense and if it passes, then that would be more evidence of a lack of common sense.

I suspect that the law is intended to intimidate and prosecute people who are concerned about conditions on farms. Folks who worry about whether animals are treated ethically or whether the conditions are sanitary or not would be the sort of folks likely to intrude on farms and take pictures. Not surprisingly, farm owners who have something to hide (like poor conditions) would be rather concerned about having such a legal club in place. As such, it might be suspected that Sb 1246 was created at the behest of folks who would rather not have the public know about what really goes on at their farms.

Naturally, it might be replied that farms have been subject to intrusions by animal rights activists and health activists and, as such, need special legal protection to keep these people from causing trouble. However, it would seem that the farm industry should have to deal with these problems like the rest of us, by getting restraining orders and so on against repeat offenders. Otherwise one might suspect that a special class of people are getting special privileges that are primarily intended to keep their operations from the light of day.

If the farms are acting well within the realm of humane treatment and sanitary operations, then they should have nothing to worry about. If people do trespass, they can be arrested for trespassing. If they take pictures of things, then there seem to be two main possibilities. The first is that the photos show that nothing is wrong. In this case, there hardly seems to be a compelling reason to make this a felony on par with murder. The second is that the photos show inhumane treatment, unsanitary conditions, or other such things. In that case, revealing such things should hardly be considered a felony offense but rather a public service on par with reporting a crime.

It might also be argued that there are farm secrets that the farm owners must protect. If there are such legitimate secrets, it would seem that those would also be protected under existing laws and hence this new law would not be needed.

Cyberbad

Image via Wikipedia

While most of the recent coverage of WikiLeaks has focused on Assange’s trial, an important bit of news is the alleged conflict between Bank of America and the organization.

WikiLeaks apparently has some documents that would be damaging to Bank of America. This is hardly surprising, given the sort of financial misdeeds that seem to have been business as usual for many of the big financial companies. Apparently the security company of HBGary Federal saw this as an opportunity and developed a rather nefarious plan that involved attempting to discredit WikiLeaks by submitting false information to the site, to expose those who have contributed to WikiLeaks and by launching attacks on journalists who have expressed sympathy for WikiLeaks. In addition to the security company, it also appears that the well connected law firm of Hunton & William and even the United States Justice Department were also involved to some degree.

In response to this, Anonymous (a self-proclaimed defender of WikiLeaks) launched a counterattack on HBGary Federal and its head, Aaron Barr. Ironically, Anonymous was able to  hack the security company and revealed not only the plans in question but also such things as the fact that Barr’s wife intends to divorce him. They even revealed the name of his WoW character, a level 80 Night Elf Druid. That is certainly an interesting nerdtastic touch.

On the face of it, it seems that HBGary Federal and Barr reaped what they had sown. After all, by engaging in such activities and planning to engage what certainly seem to be unethical and even illegal activities, they certainly seem to deserve to be exposed and even subject to punishment. Since the authorities appear to not be inclined to take action in regards to these activities,  it could be argued that this was a state of nature situation which justified Anonymous in taking action in its own defense and the defense of others. This could thus be seen as a falling nicely within John Locke’s theory regarding self defense and punishment in the state of nature.

It could, of course, be objected that Anonymous is in the wrong. After all, Anonymous launched some minor attacks against companies such as PayPal  for ceasing to do business with WikiLeaks. Also, WikiLeaks itself has engaged in activities that some consider unethical and illegal. On these assumptions, it could be thus argued that HBGary Federal was acting in an ethically acceptable manner by trying to stop wrongdoers and to protect  Bank of America and others from the danger posed by WikiLeaks and its allies. As such, HBGary Federal could be seen as acting as a vigilante. Of course, vigilantism might strike many as morally questionable so perhaps it is better to cast the company as acting within a cyber state of nature. In this state, the company has to act in ways that seem to go beyond the law because its chosen opponents (Anonymous, WikiLeaks, supporters, and journalist) are beyond the reach of the law.

The main and most obvious flaw in this objection is that while Anonymous and WikiLeaks have endeavored to remain outside of the reach of certain authorities, the authorities do have the means to impose their laws upon them. Even if they are regarded as criminals, they would thus still seem to be within the state of society and thus can legitimately expect to not be subject to unlawful action and vigilante style attacks. While it might be argued that Anonymous and WikiLeaks act as vigilantes and thus can be justly subject to vigilante attacks, this would be on par with arguing that criminals can be treated in criminal ways because they are criminals. It would also appear to be a case of a “two wrongs make a right” fallacy.

If Anonymous and WikiLeaks were, in fact, beyond the reach of the law and were engaged in wrongful acts, then a case could be made for vigilantism. After all, if the wronged parties had no recourse to the law, then they would seem to have the right (as per Locke) to seek to stop the wrongdoers and gain reparation for the damage done. However, this does not seem to be the case at all.

A second flaw is that the journalists that were supposed to be targeted were obviously not in a state of nature or beyond the law. If the journalists had acted in illegal ways, then they could be dealt with within the legal system. Naturally, it could be objected that since the journalists cannot be stopped via legal means, they must be stopped via what seem to be illegal (and what seem to be clearly unethical means) means. This objection would, of course, have some merit if the journalists were in the wrong and were being protected by unjust laws. However, this does not seem to be the case and the objection has no real merit. As such, it seems that a company was acting outside of the law and was hoisted by its own petard.

Email Privacy

Image via Wikipedia

A recent case raises questions about the ethics of reading a spouse’s email. The gist of the situation is that Leon Walker of Michigan  faces the possibility of up to five years in prison for allegedly “hacking” into his wife’s email account (they are now divorced) and learning that she was having an affair with her second ex-husband.  Michigan does have a law against “hacking” computers, programs or networks to get property “without authorization.” Applying this law to accessing a spouse’s email is seen by some legal experts as a stretch, but Leon Walker might very well face trial under this law.

Walker has offered two main defenses for his actions.

His first defense is that his wife had asked him to read her emails before and had given him the password.

If this is true, then it would certainly seem that she had granted him authorization to access her email. As such, he would seem to have acted neither illegally nor wrongly.

Of course, there is the question of whether or not he was acting under her authorization when he learned of her affair. While it is possible, it seems somewhat unlikely that she would be sending and receiving emails related to the affair while still authorizing her husband to read her email. If she did, in fact, remove her authorization, then a case could be made that he did break the law. Ethically, it could also be seen as an incorrect act. After all, being married does not grant a spouse carte blanche access to the other person’s private matters and this would seem to include email. To use an analogy, if someone allowed her husband to open a bill addressed to her, this would not grant him a right to open all her letters and read through them without her explicit permission.

While it seems reasonable to accept a presumption of privacy even with spouses, there is still the question of whether the right to privacy gives spouses a right to hide misdeeds (such as having an affair). This leads to Walker’s second argument.

After getting the emails, Walker passed on the information with his ex-wife’s first ex-husband. This man used the information to justify filing an emergency motion to get custody of his son (whom he had with Clara Walker, the woman in question). The second ex-husband was apparently once arrested on a charge of domestic violence and since Clara Walker was apparently having an affair with him, Leon Walker saw this as a matter of significant concern.

Walker likened his reading his ex-wife’s email to kicking down a door during a house fire. While this would be breaking in, it would be breaking in with the intent of saving people from harm.

This analogy does have a certain degree of appeal. After all, just breaking down someone’s door to steal their stuff would be a criminal (and most likely immoral) action. This would be analogous to hacking into a computer to, for example, steal credit card numbers. In contrast, kicking down a locked door when a house is on fire so as to save people would not be a criminal act nor a wrongful action. If Walker is right, then his reading his ex-wife’s email should not be considered criminal or unethical.

Of course, when a person kicks down the door of a burning house they know that it is on fire and they have to gain access to actually help people. In the case of the email, Walker would need to have clear signs of a “fire” and would need to have reason to believe that he had to “kick down the door” in order to help people.  This is, of course, a factual matter. It could be the case that Walker had reason to believe that his wife was having an affair and that crucial information relating to the safety of others was locked behind the password (and could not be acquired via other non-intrusive means).

If this is the case, then Walker would seem to have acted in an acceptable manner. After all, a right to privacy does not seem to give a person a shield behind which they can conceal misdeeds or  hide information relating to a possible danger to, for example, a child. In such a case, the person’s right to privacy would be violated and in this they would be wronged. However, the violation could be justified based on the nature of what was being concealed. After all, it would seem odd to say that a married person has  right to conceal evidence of her affair from her husband. He would certainly seem to have a moral right to know that.

In response, it could be argued that the right of a spouse (or ex-spouse) to know about such things does not extend to intruding into certain privacy rights, such as email. After all, while there is a certain appeal to thinking it was okay to get into someone’s email when they were having an affair, one must also consider all the cases in which the spouse is not having an affair. It would be odd to say that spouses should have the right to get into each other’s email, mail, and so on all the time because people have affairs.

Some legal experts and Leon Walker’s attorney are, of course, focusing on the legal aspect of the case. The law in question seems to have been intended to deal with cases in which someone has actually hacked into a computer or network and done damage or has stolen something.

While reading someone else’s email is an intrusion into that person’s privacy, it does not seem to fall under the law, at least as it is worded. After all, nothing seems to have been stolen from the woman and she can hardly claim that she was the damaged party when her affair was exposed.

It will be interesting to see how the case develops and what impact it has on legality of the no doubt common practice of spousal snooping.