Thursday, June 17, 2010

Social Networking and Privacy

Social Networking is a new medium, and as such, we are not always certain what to make of it, what potential it holds, for good or ill. My belief is that I should always have the ability to maintain my information in a manner that makes it available to the smallest subset of users, and gives me full control over that subset. Likely, over time, most of us will find that allowing broader access, linking, etc., will provide large benefits, and we will realize that in most (if not all) instances we will not be compromising ourselves in any way. Concurrently, laws to define the use that we can expect of the data that we publish will be written, and we will not find ourselves at a disadvantage to the corporations that want to benefit from the information we publish and the correlations they can draw (correlation to improve their marketing.)

That said, nothing, and I mean nothing, that you publish on the internet is private: If you have placed it on the network, it exists in multiple locations, and if it appears to be worth the effort, it can and will be found. If you don't want your mother , spouse, children, or future spouse to read it, do not publish it.

Which is a danger that we don't consider. Each piece of info that we publish may be innocuous by itself, but taken together, if it places you in the right subset, you can become a target. It is for this very reason that my employer is terrified of Facebook and its cousins - they see only dark alleys filled with intellectual property criminals waiting to pounce; To get the unwary employee to reveal company secrets.

I've seen some pretty powerful graphing tools that can draw correlations across wide swaths of data - so I'm not talking the hypothetical, here. I've also brainstormed with co-workers ways your data could be used to get you to pay more for the products you are purchasing, especially if you use internet coupons. We've also talked about how, taken out of context, what you write or photograph might prove deleterious when applying for a job or volunteer position (since, once again, the media behind the publishing can so easily be altered to make it appear that it hasn't been taken out of context, or make the context uncertain.)

So, I think the lesson here is to think before publishing, and always be a little wary, but on the balance, like everything we do: Get out and do it and enjoy, because paranoia will make you isolated, lonely, and probably bitter.

And, in no way, do those qualities make you a better citizen or member of society.

Wednesday, June 16, 2010

The Problem With Lycra

No, I'm not thinking of the obvious: That it's expensive and only a select few members of humanity can look good wearing it. The problem revealed to me today, is that it is thinner than the proboscis of a mosquito. Wearing Lycra, there is no part of your body protected from these pests!

Normally, when I'm wearing Lycra I'm also moving at a pretty good clip on my bicycle. However, this morning, I was forced to stop at one our cities beautiful parks, with the baseball diamond and the irrigated foliage and the fountain and the lake; and, the mosquitoes.

The entire time I worked to replace my flatted tube, they swarmed about, dashing in for a quick drink, avoiding my irritated attempts to thwart them. I'm not certain just how many I granted the gift of reproduction to, but it was considerable. So, I reckon that when you're cursing the next generation of mosquitoes - Yeah, me (and my Lycra) are partly to blame!

Sunday, June 13, 2010

Towards A Definition of Judicial Activism

Frequently, people level charges of Judicial Activism towards judges. A corollary charge is 'legislating from the bench'.

Attempting to understand what constitutes Judicial Activism is much more difficult. I've probed those who've leveled the charge, and what it really comes down to is that the Judge (or Judges) interpreted the law and made a ruling to which the speaker disagrees. Unfortunately for the speaker, not being a member of the law profession, they can't mount a strong argument for why the body of law and previous rulings (precedent) should compel an alternate interpretation: They don't like the outcome, and rather than attempt to build a case, they label the judge 'Activist'.

While this may seem like a harmless shorthand, it's actually a logical fallacy: Begging the Question – Assuming the question under debate is settled, and leaping to conclusions. The question remains open as to the efficacy of the interpretation, and if an alternate interpretation, giving our laws and precedent, is actually possible or reasonable. Leveled repeatedly, with out basis, it becomes an ad hominem attack on an individual based upon political desires. As such, we would want to be wary and disregard such labeling, unless the speaker can actually point at behavior on the bench (separate from the rulings) that could reasonably be defined as 'Judicial Activism'.

Occasionally, I've read the opinions of the Supreme Court, and, although I may find either the ruling or the dissent more compelling, what I've really grown to appreciate is how, to a large degree, either side of the argument is reasonably sound, based upon the body of law. What differs between them is exactly which precedent, which aspects of Constitutional interpretation the particular judge wishes to emphasize. Often, as near is I can tell, either side of the issue is valid (for our law is not nearly so logically tight as mathematics, and contains within it logical contradictions and fallacies) – we may feel from an outcome standpoint that one interpretation will better enable our continuing realization of a just and fair society, or one interpretation will benefit us, based upon our position within society, but those are value judgments as to what is most important. Judges make those too, and although my values and their values disagree, that doesn't make them wrong or activist. (Certainly I would like their values to agree with my values, I hold my values because I do believe them best, but proving the matter is considerably more tricky, so I must also hold that there is a small possibility that I don't have the absolute best value set, and perhaps I can learn (and improve) from their differing viewpoints.)

However, I've been reading the Supreme Court ruling on Citizens United vs FEC, and in Justice Steven's dissent, I've actually found what could be a strong basis or criteria for determining Judicial Activism. What separates this dissent from others I've read is not just that Steven's disagrees with the logic or the conclusion, he actually disagrees, from a very fundamental standpoint, on the approach that led to the ruling.

The first was scope. Justice Stevens points out that the case before them did not constitute a 'facial' challenge to the unconstitutionality of the law governing election expenditures (specifically, that the law amounted to a ban on corporate free speech, or that such speech is even protected under the First Amendment): Rather, the challenge was whether the 'As applied' ruling against Citizens United violated their right to speech protection, and why. By widening the scope of the case (and calling back the parties for a second set of oral arguments), the Court itself violated its own long standing precedent or only deciding the matter at hand. Justice Stevens words:

“‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,’” Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States, 274 U. S. 195, 200 (1927)), and it is “only in the most exceptional cases” that we will consider issues outside the questions presented, Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976). The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That is unsurprising, for none exists.
Setting the case for re-argument was a constructive step,but it did not cure this fundamental problem. Essentially,five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.


The second widening of the scope was to declare the whole statute unconstitutional, rather than just the portion that reached too far. Justice Stevens again quotes previous rulings where the court restrains itself from overreaching:

The unnecessary resort to a facial inquiry“run[s] contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington State Grange, 552 U. S., at 450 (internal quotation marks omitted).


The bigger problem here, as Justice Stevens points out, is that the case before them was not one of many challenges. The court hadn't decided on previous cases that parts of the statute were unconstitutional, and with every ruling it was becoming more apparent that no application was constitutional, rather, there was absolutely no history of any portion being invalidated or proving to have a deleterious effect on free speech across broad swaths of the population. Nothing had been brought before the court as to the effects of BCRA §203 on any other entity: Corporate or Union or other.

As if it were not distressing enough that the Court committed these two transgressions, the case brought before them actually provided for alternative rulings on narrower grounds
“without toppling statutes and precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “[I]f it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).”


(Notice how this very pronouncement of the Court's principles was articulated by Justice Roberts, who decided to violate his own statement in this case!)

The final overreach of the Court was the broad overturning of precedent. Justice Stevens builds a strong argument as to why the precedents in this case do not require overturning, and shows that the majority doesn't build a counter argument as to why precedent needs to be disregarded. As Stevens points out, too, overturning precedent requires a rather strong argument. He counters the majority claim that, in particular, one of the precedents is 'destabilizing', by observing that what the majority appears to be arguing is that “the theory seems to be that the more we utilize a precedent, the more we call it into question.”

Of course, precedent is not sacrosanct – it can't be, otherwise previous rulings that really were wrong couldn't be overturned. Overturning precedent alone wouldn't be cause to label a judge activist.
However, the ability to disregard precedents in this case was a direct result of the proceeding three transgressions of the Court. Without the changes to the scope, the change from an 'as applied' challenge to a 'facial' challenge, and the willingness to explore rulings not even sought by the plaintiff, the ability to reconsider and overturn nearly 100 years of precedent wouldn't have been an option. But, by these structural changes, the court was then able to go in, and with a “sledgehammer, rather than a scalpel,” sweep away broad swaths of federal and state statutes, all in the name of equating a corporation to a natural person for the purposes of application of the First Amendment.

Most unfortunately, it was those precedents that had distinguished between the two, and attempted to build campaign finance laws that respected the different places people and corporations inhabit vis a vis our political process. Those precedents recognized that while you and I might give money to further a candidate or a cause, and through established transparency, know who joined with us and who gave to opposite causes, they also recognized that corporations, through their very lack of transparency, could not give money and profess to speak for all the individuals within the corporation. (Despite what was the intent, a corporation is run by an oligarchy – it is not a democratic institution as we recognize such, and the influence of its rulers can give them what amounts to multiple voices in our political process, something we clearly would want to curtail if not eliminate.)

A lot more could be said (and Justice Stevens says a lot more in his dissent), but for our purposes, we are finished. We now have a working definition of a Judicial Activist. It is a Judge who disregards judicial precedent: Not the precedent of previous rulings (Stare Decisis), but the precedent of How the Court Operates. It is a Judge who makes a ruling outside of the bounds of the case brought before them, who broadens the case to strike down large swaths of law rather than the law affecting the litigants, who decides more than needs to be decided (who shows a lack of deference to established rulings and established procedures and the wisdom of their antecedents.)

Slight changes to these, too, would not allow us to label a judge 'Activist'. For there are reasons where a judge may overturn precedents, may slightly expand the scope, special circumstances where more may need to be decided: It is the combination of more than one, and the decidedly large departures from the case brought before them that would allow us to label a judgment 'Activist'. Repeated departures would then require us to label a Judge guilty of Judicial Activism, and furthermore, we would know exactly what we meant when we so labeled them.

In deciding Citizens United vs FEC the way they did, I accuse Justices Roberts, Scalia, Kennedy, Alito, and Thomas of Judicial Activism – of departing from the methods we expect and depend upon our Judiciary to decide the cases before them, and reaching not simply a conclusion to which I disagree, but a conclusion that is incorrect, precisely because it was incorrectly achieved.

And you now know exactly what I mean when I level that charge.

(Footnote: You can read the entire ruling here. If you do, and think I've overlooked something important, please let me know! It's 176 pages long – by far the longest ruling I've ever attempted. It seemed to me worth the effort, although somewhat depressing in the enshrining of corporate 'personhood' it appears to grant – something I feel is antithetical to both our concept and the needs of a working democracy. However, that should rightly be the subject of another essay.)

Thursday, June 10, 2010

Strange Loops

Shortly after the turn of the 20th century, Bertrand Russell and Alfred Whitehead published Principea Mathematica – the most comprehensive outline of the axiomatic foundations of mathematics. Banished forever was to be mathematical falsehoods and ambiguity.

Just some 20-odd years later along came the Mathematician Kurt Gödel, who showed how the system could contain internal references to itself – dubbed Strange Loops. This strange property of a grammer to be self-referential has been used by numerous philosophers in attempts to understand that most complex and self-referential system: human consciousness.

Back in 1979 Douglas Hofstadter earned the Pulitzer Prize for his book 'Gödel, Escher, Bach - An Eternal Golden Braid' where he explored these ideas in new and interesting ways. It has become a must read for every computer scientist and mathematician since.

So it was with anticipation that I picked up 'I Am A Strange Loop' – the current release of the mature Hofstadter. (GEB was published by a 31-year old just out of grad school). Dr. Hofstadter has spent his career researching artificial intelligence systems, and collaborated with the philosopher of the mind Daniel Dennet on numerous occasions as both men attempt to understand what makes us tick, and how that can be used to make better software.

Sadly, I was largely disappointed, as I Am A Strange Loop lacks the marvel and inventiveness of the earlier work. However, Hofstadter did broach one new idea that I find a little intriguing. Taken from the idea that a computer program can exist on multiple computers, Hofstadter theorizes that parts of our internal program, the bits and pieces of us, our memories and ideas, can (and do!) exist in more than one brain. As we interact and share ideas and stories, those ideas and stories come to exist in both of our minds, albeit at different fidelity. As I relate an experience to you, that experience becomes part of you, carried in your mind just as in mine, and vice verse. And, Hofstadter seems to be saying: Those cast off pieces extend our consciousness beyond our physical bodies.

Of course, my immediate opposition to Hofstadter's idea is that “Sure, others share parts of the same stories and ideas, but those parts cast off into their brains aren't important to me: They're not part of what is me, what make me conscious, what is that most important strange loop called 'I'! It is only the parts of the program running on my machinery that matter to me – those cast off parts are actually now parts of a system running elsewhere and contributing to a different 'I', which is no longer me.”

But, perhaps that isn't what Hofstadter is attempting to say after all. For he wrote this part of the book after the early and unexpected death of his wife, and appears to be searching for a means to convince himself that she isn't completely gone. That, more than mere memories, there is some of her remaining inside him, in a much more literal sense than is usually meant.

Intuitively, we've known that for a long time. There is another civilization that has the concepts of Sasha and Zumani – Sasha for those departed but for whom there remain people who knew them when they were alive: Literally, the living dead. One does not become zumani until all who have first-hand knowledge of you have also passed on. That we retain more than just memories, but some of another's ideas have become our own, some of their patterns have become our patterns, and that as long as we continue to use those patterns to define us, they aren't completely absent.

And so, in sort of a convoluted manner, Hofstadter has reminded us of what is possibly one of the greatest gifts of consciousness: The ability to remember.

Wednesday, June 2, 2010

The Lottery With The Highest Payout

That's America.

We can't claim to have the best Health Care, the highest Happiness, nor the best Life Expectancy. The average worker toils longer hours with less vacation than his European counterpart, and brings home a smaller share of the GDP.

But if you win the economic lottery (i.e., you make it into upper management or the financial industry where you no longer produce) - you win bigger than anywhere else.

In Why is Washington Dithering with Unemployment High? Yves Smith gives a very even assessment - and the first step is to recognize the problem.

We absolutely have to break free of enacting policies that benefit the already financially elite, and attempt to restore a structure that more closely aligns with effort and merit. However, since the wealthy have consolidated their power, and are continually moving to lobby Washington for more, we have an uphill battle.

Especially since they've managed to get us to demonize our own power organizations, such as unions.