Privacy--Lessons from the Usability Lab

One of the innovations of the 20th century was the "usability lab" for testing software being developed and before release to the field. In my old agency, the lab was a setup where we'd put a person at a computer terminal, install new software on the computer, give the person a set of scenarios to execute using the new software, and videotape the operation, one camera on the terminal to see what she was doing and one on the user to see how she was doing (i.e., puzzled, stumped, flying through the exercise). Such testing was highly recommended by the software consultants and development experts, it was interesting to do, but we rarely did it. The reasons for that may bear on some concerns about the loss of privacy in the today's world.

The user had no privacy--we had 2 hours of tape for every hour she spent in the lab. That was the problem, we had too much data. Once the test was over, we could debrief the user quickly. But going through all the tapes would require spending the same amount of time watching as she had spent doing. It just wasn't a rewarding exercise.

It seems to me the same is true in many cases where people/companies collect personal data now. If there's no one with a strong motive to look at the data, and then misuse it, the risk to my privacy is negligible. Safeway's computer knows I buy cat food, and often provides a coupon at checkout to try to get me to buy a different brand, even when all I'm getting is milk and fruit. But that's all happening in bits and bytes. Even if someone at Safeway could look at my records, there's no motive to do so. The concern for movie stars and other famous people is different; they could attract stalkers and nuts who are motivated to find and use the data. (Like the IRS employee(s) who looked at Elizabeth Taylor's 1040.)

One of the things you can give thanks for is that you aren't famous.

Appropriations--The NRA Filament

The 2006 Appropriations Act for State-Justice-Commerce includes this bit, illustrating the power of the gun lovers:

"SEC. 634. Notwithstanding any other provision of law, no department, agency, or instrumentality of the United States receiving appropriated funds under this Act or any other Act shall obligate or expend in any way such funds to pay administrative expenses or the compensation of any officer or employee of the United States to deny any application submitted pursuant to 22 U.S.C. 2778(b)(1)(B) and qualified pursuant to 27 CFR Sec. 478.112 or .113, for a permit to import United States origin `curios or relics' firearms, parts, or ammunition."

Without researching further, I'd assume that an importer of say the "Brown Bess" British musket used in the 18th century still has to submit an application, but it can't be denied. It would be more logical, and accomplish the same goal, to revise the definition of a gun to exclude curios or relics. The problem with being logical is that the gun-lover who originated this (I'm blaming the NRA but it could have been an individual) has influence with the Appropriations Committee, not with the legislative committee and/or amending the basic legislation opens up a big battle over gun laws.

Appropriations--Cutting Phone Lines in the Executive

This is from the 2006 Agriculture Approppriations Act. I vaguely remember the incident that prompted it--I think the House committee had requested data from USDA. When the bureaucracy came up with the data, someone else got it at roughly the same time. Who was the "someone else"? Someone at OMB or the White House, if I remember correctly. Anyway at least one House member got on his high horse:

"SEC. 716. None of the funds appropriated or otherwise made available to the Department of Agriculture or the Food and Drug Administration shall be used to transmit or otherwise make available to any non-Department of Agriculture or non-Department of Health and Human Services employee questions or responses to questions that are a result of information requested for the appropriations hearing process."

So the result of the flap is to make such data top secret. The fungal filament creeps into the executive branch and cuts the phone lines.

Appropriations--Don't Coddle Inmates

From the Justice Appropriations Act (note, the URL's obtained when you search on the http://thomas.loc.gov site are temporary, so you have to redo the search.)

: " SEC. 112. (a) None of the funds appropriated by this Act may be used by Federal prisons to purchase cable television services, to rent or purchase videocassettes, videocassette recorders, or other audiovisual or electronic equipment used primarily for recreational purposes.

(b) The preceding sentence does not preclude the renting, maintenance, or purchase of audiovisual or electronic equipment for inmate training, religious, or educational programs."

So no cable for federal prison inmates, just the over-the-air programs. My impression is that most prisons are in rural areas so choice may be very limited. When TV came to upstate NY, the TV shop in Greene, NY set up a local cable system just because reception was so bad. Then I remember in the 70's seeing the first big cable dishes in those areas.

There's probably a home for this in the legislation governing the federal prison system, but again it's easier for the person who feels strongly about the issue to get it in the Appropriations Act.

Regulation and New Niches

Normally Professor Bainbridge is a reasonable man, but the idea of people writing software to play on-line poker set him off on Cheaters:

"In my book, the geeks writing these bots are showing the same piratical attitude that caused the computer industry to lead the league in financial fraud during the tech bubble. It's bad enough that the bot creators feel no shame, but the willingness of others to condone this sort of misbehavior is a sad commentary on the state of ethics and common decency."

I read his blog fairly regularly--he seems to be on the libertarian side of corporate law, applauding the recent appointment of Christopher Cox to head the SEC. [Full disclosure: while Cox is apparently capable, IMHO the investigation he headed into Chinese influence on US politics was a bait and switch con job so I've an irrational prejudice against him.]

Anyhow, someone with a good Presbyterian/Lutheran background doesn't expect anything better from people exploiting a new ecological niche, like on-line poker playing. As someone said in some number of the Federalist, if humans were angels we wouldn't need government. But humans are not angels. If we rely on shame, ethics and common decency to manage our economy, we rely on sand. You need law, or at the very least, a good counter-programmer in the arms race.

Actually, it seems like a relatively easy cheat to defeat, at least for now--every couple hands the host site displays one of those distorted passwords for the player to echo back to the site.

Centerfield: Tobacco vs. Marijuana

The Centrist Coalition has an interesting debate going on over the recent decision on medical marijuana and the proper reach of the commerce clause. Seems to me the clause was involved in the civil rights era debates over the public accommodations provisions as well as being the prop for some of the New Deal's farm programs--hence I'm content with the status quo.

One way to look at the issue is to focus on the end results, not the process. In a country with a diverse society and a democratic form of government, will justice be better served by making decisions at the national or the state levels? As American history was interpreted when I was in school, decisions at the national level were best, as shown by the filibusters of civil rights legislation, etc. Even today the Republicans have moved from attacking the nationalization of the education system to supporting it--national standards are better than local.

Liberals and libertarians have mixed feelings. Look at the range of social issues:

Prohibition: constitutionally guaranteed local option
Abortion: constitutional by SOCUS national rules
Marijuana: national rules, but lib/libs would prefer local
Gay marriage: local rules and lib/libs would prefer local

Positioning on constitutional issues depends in part on projections of how society is going to change. You could argue in the 1970's that ERA was an expression of lack of confidence in the society. Would women be in a significantly different position today if it had been adopted? I doubt it, but am open to argument. Is opposition to gay marriage going to fade like opposition to women's rights has, or is it going to remain strong like opposition to abortion?

If one takes a "principled" position on constitutional interpretation you may end up 30 years from now in an awkward position.

Networking--Good or Bad?

The NYTimes finishes its series on class with a piece on a single mother's rise to the middle class, through perserverance, marriage, and some luck. Now she is a registered nurse, mother, wife, and the star of her network. (The piece is reminiscent of Jason DeParle's recent book on welfare reform, though the most successful of his three featured women has yet to marry, she does have a stable relationship with a man.)

Angela Whitiker's Climb - New York Times: "But she has found herself alone. She is making more money than anybody she knows. And come payday, everybody needs something, and not just the kids. Relatives need gas money, friends could use help with the rent. Even her patients, on hard times themselves, have their hands out."

It's a familiar story--all the young star athletes with their homeys, the actors with their entourages (there's even a TV show now showing that). It seems that one aid to success is moving--if you can get away from the old and familiar it's easier both to form new habits needed for success and avoid drains from the demands of the old life. I'm reminded of "Trainspotting", the movie on British drug addicts in which the "hero" betrays his friends as a prerequisite to going straight. Is that one reason why black immigrants are doing better in the U.S. than the native African-Americans? There's a difference between the networks that immigrants have where they help each other up (some Koreans have savings clubs where each member contributes regularly and the total sum goes to a member for investment in a venture) and the network with the people back home. In the latter case, it's almost a tax on success. It's another type of survivor's guilt--the contrast between two lives that really aren't that different in merit means the star feels guilty and the not-star feels entitled.

Congress and the Fungus Among Us

One of the fascinating things about working in the nation's capitol was/is seeing how reality differs from the textbooks. In theory, Congress passes laws "authorizing" expenditure of money and separate yearly appropriations acts specifying the amount of money that can be spent for authorized purposes. In theory, the Constitution provides for a system of checks and balances among the three branches of government. In reality Congress is an example of the evolution of fungus. It turns out that trees depend on fungi, that each tree has an associated type of fungus--the fungus helps to extract nutrients from the soil.

I call Congress a fungus because its influence is underground and unnoticed. Take the 2006 Agriculture Appropriations Act just passed by the House. (Go to http://thomas.loc.gov and search for it.)

The bulk of the act consists of appropriations in the classic sense, but Title VII includes the fungal growths. Here are contained the specific "dos and don'ts" that pass beneath the notice of the media. These may originate as requests from a member's district or State, or they may represent a bee in someone's bonnet. I'm not 100 percent sure of how they actually get into the bill--I suspect there's little or no discussion in the committee. Each member has her or his own priorities and goes along with those of others. I think it's possible for some to raise a point of order when the bill is considered--you aren't supposed to legislate in appropriations acts--but if everyone goes along they get on through.

Some of these provisions do get scrutiny, mostly the ones that represent Congressional "pork". But those that prohibit spending are almost never mentioned.

The Role of Judicial Review--Legal Affairs Debate Club

Interesting debate here on the role of judicial review (thanks to Professor Bainbridge) between Professors Tushnet and Chemerinsky, with the latter arguing that it's not needed. According to Tushnet:
"The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.
"
In the argument I'm struck by the absence of a sense of history, which puts me more on Tushnet's side (pro judicial review). Over time, sober reflection will result in different positions than the push and pull of policy-making by elected politicians. And the country will often be better off. In democracies, politicians respond to the passions of the moment and act. Or flotsam rides the tidal wave up onto the beach. The passion cools, the tide ebbs, but democracy will not clean the beach of the flotsam.

Clutches and Shear Pins in the Bureaucracy--Metaphor

In days of old, good Americans drove American iron, built by Detroit, the bigger the better, and the engine was connected to the transmission through something called a "clutch" (now a "manual clutch" since almost all are automatic). A problem in learning to drive was engaging the clutch--feeding just enough gas to the engine with the shift in first gear, not second or third, so that the engine wouldn't stall. (This was a big problem for me.) The issue is meshing two mechanical systems--the internal combustion engine and the transmission and wheels--matching force and the resistance of inertia.

On the farm, our tractor had a "power take-off" (PTO) --a rotating shaft driven by the tractor engine. The mowing machine was driven by it--a sleeve slipped over the shaft, transferring the rotary motion to the mower, which had a "pittman bar" to transform the rotary motion to back and forth lateral motion, which operated the cutting bar. At some point in the transmission there was a "shear pin". If the mower jammed up, the pin would shear in two, disconnecting the mower from the tractor PTO. This safeguarded the mower--otherwise the force of the tractor could snap expensive parts of the mower. Another aspect of matching force and resistance.

I'm thinking of these as metaphors when reading commentary on Mark Felt and this Washington Post article on the new Secretary of Agriculture. The problem is matching the power and force of the political appointees with the capabilities and inertia of the bureaucracy. (Remember that "inertia" in physics, if I remember some 50 years ago, is the tendency of a body to continue as it was: if it was moving, it has inertia; if stopped, it has inertia.) If you have a mismatch, there will be problems. In the case of Johanns, he's carrying over some of Veneman's people and appointing people experienced with the issues. In the case of Porter Goss at the CIA, he appears to have brought in his own people, and his own agenda, so there was an explosion. In the case of L. Patrick Gray there was also an explosion.

So leaks may be symptoms of a mismatch of force and inertia, or may result in parts flying off, as bureaucrats are fired as in the Goss and Gray cases.