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The Great Transformation Part 5: Polanyi on Marxian Analysis

Previous posts in this series:

The Great Transformation: Mainstream Economics and an Introduction to a New Series

The Great Transformation Part 1: The Market

The Great Transformation Part 2: More on Markets

The Great Transformation Part 3: Neoliberalism Before It Got Its New Name

The Great Transformation Part 4: Reaction and Counter-Reaction To Self-Regulating Markets

The Great Transformation is an examination of the origin of the theory of self-regulating markets and its errors. Polanyi’s argument is that when a society is threatened by violent intrusions, such as the sudden introduction of markets as the dominant new organizing principle, it fights back. As discussed in Part 4, beginning in the 1840s or so there was a general feeling among the upper classes that the self-regulating markets were so destructive that social control had to be imposed to reduce the damage and prevent further harm. There was no theory, and no plan, just case-by-case legislative action. Factory and agrarian workers and other members of the lower classes could not vote, so that impetus came from other classes.

Polanyi says that for the society to survive, it was necessary for laborers and the impoverished to come into existence as a class with the right to make demands and expect to see them answered. Under the Speenhamland system and the Poor Laws in effect in the early 1800s, this was difficult, perhaps in part because of the split between those on relief and those with miserable poorly-paying work. When those laws were repealed and the poor put on the street where they served as the army of unemployed to keep wages at very low levels, it became possible for them to identify as a class. This sounds a bit like Marxian analysis. And, in fact, Marx agreed with the economic liberals of that day that the natural level of wages was the subsistence level. This is from the Paris Manuscripts:

The lowest and the only necessary wage rate is that providing for the subsistence of the worker for the duration of his work and as much more as is necessary for him to support a family and for the race of labourers not to die out. The ordinary wage, according to [Adam] Smith, is the lowest compatible with common humanity, that is, with cattle-like existence.

The reference to Smith is to Chapter VIII of The Wealth of Nations. Smith’s analysis of the wages of labor is much more complicated than this quote from Marx shows. He says that wages depend on a number of factors including whether a nation is declining or thriving. He says that in England in the 1770s wages were above mere subsistence, and the lives of workmen were improving. That helps explain the reaction to the intrusion of the free market in labor brought on in the early years of the Industrial Revolution. The sudden change from a reasonably pleasant life to a much more miserable existence contributed to the social demand for restraining the self-regulating market. Smith seems to approve of the higher wages workmen were receiving:

Is this improvement in the circumstances of the lower ranks of the people to be regarded as an advantage, or as an inconveniency, to the society? The answer seems at first abundantly plain. Servants, labourers, and workmen of different kinds, make up the far greater part of every great political society. But what improves the circumstances of the greater part, can never be regarded as any inconveniency to the whole. No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable. It is but equity, besides, that they who feed, clothe, and lodge the whole body of the people, should have such a share of the produce of their own labour as to be themselves tolerably well fed, clothed, and lodged.

The laissez-faire cheerleaders of the 1800s and their neoliberal counterparts don’t agree, and perhaps Marx’ pessimism is more realistic than Smith’s approbation.

In Chapter 13, Polanyi gives two reasons for his disagreement with Marxian analysis. First, Marx teaches that classes are the basic elements of society. Polanyi says that far more often classes arise to suit the form society has taken. When a society is stable, class interests can be used to understand the evolution of the society. When society undergoes structural changes, the class structure may fracture. A class that has become functionless may disintegrate and be replaced by other classes or not at all. These structural changes may be environmental, the result of war, technological advance, or the rise of a new enemy. In such cases, class theory doesn’t predict the outcome.

Secondly, there is the equally mistaken doctrine of the essentially economic nature of class interests. Though human society is naturally conditioned by economic factors, the motives of human individuals are only exceptionally determined by the needs of material want-satisfaction. That nineteenth-century society was organized on the assumption that such a motivation could be made universal was a peculiarity of the age. … Purely economic matters such as affect want-satisfaction are incomparably less relevant to class behavior than questions of social recognition. Want-satisfaction may be, of course, the result of such recognition, especially as its outward sign or prize. But the interests of a class most directly refer to standing and rank, to status and security, that is, they are primarily not economic but social. P. 160.

Of course, the assertion that human behavior is motivated solely by material want-satisfaction wasn’t just a peculiarity of the 19th Century, it’s the dominant idea of neoliberal economics. The idea that human beings are solely devoted to getting stuff at the best price is central to their models, and to their understanding of their ill-defined markets. It is just as false today as it was in Marx’ time. I googled the term “experiment pay compared to other people”, and got a bunch of papers and articles saying that pay isn’t the important thing. Other factors, including comparative pay levels, and the intrinsic rewards of the tasks are more important. Here’s one. Beyond that, we know humans have needs that go far beyond material goods. Just take a look at Maslow’s hierarchy of needs. Material goods satisfy the needs for safety and security, but stuff by itself isn’t going to get you much in the way of love and belonging, esteem or self-actualization.

One of the goals of neoliberalism is to re-imagine human beings as the utility maximizers of their theories. Here’s a paper that flatly says that money isn’t the important issue even for the most sociopathic set, CEOs. Giving them huge bonuses for increasing stock prices doesn’t produce higher stock prices. Even the John Galts of the Corporate Jungle aren’t good little neoliberals.

Confirmed: Intelligence Community Claimed Credit and Top Secret Status for Open Source Intelligence

Back when the beltway first declared that Hillary Clinton’s emails (by which they meant, but often didn’t specify, emails received by Hillary) included two Top Secret emails, I warned about being snookered by CIA claims their drone program was secret.

This is CIA claiming secrecy for its drone operations!!! The ongoing FOIAs about CIA’s acknowledged role in the drone war are evidence that even independent appellate judges don’t buy CIA’s claims that their drone activities are secret. Just yesterday, in fact, DC Judge Amit Mehta ordered DOJ to provide Jason Leopold more information about its legal analysis on CIA drone-killing Anwar al-Awlaki, information the CIA had claimed was classified. Indeed, Martha Lutz, the woman who likely reviewed the emails turned over, is fairly notorious for claiming things are classified that pretty obviously aren’t. It’s her job!

I’m all in favor of doing something to ensure all people in power don’t hide their official business on hidden email servers — right now, almost all people in power do do that.

But those who take CIA’s claims of drone secrecy seriously should be mocked,

On Friday, Josh Gerstein confirmed I was right to warn against taking such claims seriously.

Intelligence Community Inspector General I. Charles McCullough III made the claim that two of the emails contained top-secret information; the State Department publicly stated its disagreement and asked Clapper’s office to referee the dispute. Now, that disagreement has been resolved in State’s favor, said the source, who spoke on condition of anonymity.

Intelligence officials claimed one email in Clinton’s account was classified because it contained information from a top-secret intelligence community “product” or report, but a further review determined that the report was not issued until several days after the email in question was written, the source said.

“The initial determination was based on a flawed process,” the source said. “There was an intelligence product people thought [one of the emails] was based on, but that actually postdated the email in question.”


In an Aug. 11 memo to 17 lawmakers, McCullough said the two emails “include information classified up to TOP SECRET//SI/TK/NOFORN.” The subject of the emails has never been publicly confirmed, but published reports have said one refers to North Korea’s nuclear program and another to U.S. drone operations. The acronym “SI” in the classification marking refers to “signals intelligence,” and a footnote in McCullough’s memo references the work of the National Geospatial Intelligence Agency, which oversees U.S. spy satellites. [link to memo added]

Here’s the AP’s earlier description of the two emails, which seems to indicate the drone information was commonly known, whereas the email to Hillary included information on North Korea that preceded by days the Top Secret report providing the same information.

The drone exchange, the officials said, begins with a copy of a news article about the CIA drone program that targets terrorists in Pakistan and elsewhere. While that program is technically top secret, it is well-known and often reported on. Former CIA director Leon Panetta and Sen. Dianne Feinstein of California, the top Democrat on the Senate Intelligence Committee, have openly discussed it.

The copy makes reference to classified information, and a Clinton adviser follows up by dancing around a top secret in a way that could possibly be inferred as confirmation, the officials said. Several people, however, described this claim as tenuous.

But a second email reviewed by Charles McCullough, the intelligence community inspector general, appears more problematic, officials said. Nothing in the message is “lifted” from classified documents, they said, though they differed on where the information in it was sourced. Some said it improperly points back to highly classified material, while others countered that it was a classic case of what the government calls “parallel reporting” — receiving information the government considers secret through “open source” channels.

While (as Steven Aftergood argues in Gerstein’s article), the implications of this admission for Hillary’s campaign are significant, consider what it also means about the intelligence our spooks claim to Top Secret: it’s often readily available from alternate (unclassified, at least in the case of the CIA’s drones) sources.

What then, is the value of the ~$70 billion a year we spend on intelligence if some of the purportedly most secret intelligence can be gleaned from the press? And to what degree is all this secrecy about hiding that fact?

The intelligence community does have secrets worth keeping. But all too frequently, it has secret shortcomings protected by a classification system it controls.

Signs of Confusion in the Middle East

Yesterday, Shane Harris told the tale of a spooked up telecom providing Iran’s state-owned telecom company with Internet bandwidth.

GTT Communications Inc.—headquartered in McLean, Virginia, just a 15-minute drive from the headquarters of the CIA and hired by various unnamed U.S. intelligence agencies and satellite operators—hasn’t exactly been touting its new venture.

The company has issued no press release about its deal with an undersea cable network that sells Internet services to Iran and other Persian Gulf. (One of the cables comes ashore at the city of Bushehr, home to a nuclear plant that’s been the subject of intense debate about its role in Iran’s nuclear program.)


The company began providing bandwidth to Iran’s state-owned telecom company, TIC, via one of Gulf Bridge’s submarines cables on June 10, Doug Madory, the director of analysis at Dyn, a research company that monitors Internet connectivity, told The Daily Beast. Notably, that was nearly a month before the U.S., Iran, and other world powers announced an agreement to curb Iran’s nuclear weapons program in exchange for lifting some sanctions.

Today, WSJ has a muddled story about the Fed cutting off shipments of cash to Iraq because of concerns about who was getting the dollars.

In 2014, annual U.S. dollar cash flow from the Federal Reserve Bank of New York to Iraq was $13.66 billion, more than triple the $3.85 billion in 2012, according to data compiled by Iraq’s parliament and reviewed by The Wall Street Journal.

That spike doesn’t mesh with the sluggish Iraqi economy of late, and as a result U.S. officials suspected the dollars were being hoarded rather than circulated.


U.S. officials sent a written demand around July to Iraqi officials that the Iranian banks be cut off and separately conveyed to Iraqi officials that the Fed wouldn’t approve cash requests until the overall situation improved.


In July, several U.S. officials, including Daniel Glaser, assistant secretary for terrorist financing in the Treasury’s Office of Terrorism and Financial Intelligence, flew to Baghdad to discuss potential solutions. At a meeting in the U.S. Embassy dining room, Iraqi officials including Iraqi central bank governor Ali Allaq agreed to turn over reams of data to the Fed, which also shares it with U.S. intelligence agencies. They later hired U.S. accounting firm Ernst & Young to monitor the auctions.

On Aug. 6, just days before Iraq’s central bank said it would run out of dollars, the Fed and the New York Fed sent nearly $500 million. It has sent several more in the weeks since then.

I say the story is muddled because it offers various accounts of who was getting the dollars laundered through Iraq’s central bank: corrupt officials, the Kurds, Iran, or ISIS. (ZeroHedge suggests the money was going to intentionally fund ISIS, but a lot about that claim, especially the timing of the cut-off, doesn’t make sense.)

What one comment in the story makes clear, however, is that Treasury let this money-laundering go for a time, until recent events led them to crack down.

Some Iraqi officials had similar concerns at the time, and also said corruption and graft have been a problem for years and question why U.S. officials only recently considered the currency issue an urgent one to be addressed.

This is roughly $20 billion laundered through Iraq — much of it going to the Kurdish region —  that the US only acted to halt amid concerns that one of our many adversaries was tapping into the dollars.

These two data points suggest our ostensible alliances in the Middle East aren’t in fact who we’re working with (with the exception of the Kurds, who remarkably stick with us even after we sell them out serially).


FBI Caught Their ISIS Hacker by Tracking His Signed Email to His Signed Facebook and Twitter Accounts

Screen Shot 2015-10-15 at 8.19.32 PMThe FBI just charged an Albanian hacker living in Malaysia, Ardit Ferizi, aka Th3Dir3ctorY, with stealing the Personally Identifiable Information of over 1,000 service members and subsequently posting that PII online to encourage people to target them (he provided the data to, among others, Junaid Hussain, who was subsequently killed in a drone strike).

Given Jim Comey’s repeated warnings of how the FBI is going dark on ISIS organizing, I thought I’d look at how FBI found this guy.

  • Ardit Ferizi, the suspect’s real name, was connected to the @Th3Dir3ctorY account on Twitter. On that account Ferizi linked to an article about the Kosova Hacker’s Security group (KHS) for which he had been interviewed. He also identified himself as the owner of KHS.
  • Ferizi registered the Twitter identity to a hotmail account tied to an IP address in Kosovo.
  •  @Th3Dir3ctorY subsequently logged into Twitter from various ISPs in Malaysia, including
  • The hacker who first broke into “Victim Company” on June 13, 2015 and ultimately stole the data of 100,000 people created an account with the identity KHS. On August 19, 2015 — after the company had removed the malware used to exfiltrate the data — someone identifying himself as “Albanian Hacker” and using the email “[email protected]” contacted the company and asked them to stop taking down their files (which the FBI interpreted to mean the malware left on the server). The IP address tied to the SQL injection used by the hacker was
  • A Facebook account tied to the name “ardit.ferizi01” also used that IP address. Ferizi sent himself a spreadsheet via that facebook account with the stolen PII.

In other words, Ferizi apparently did nothing to hide the association between his public Twitter boasting about stealing PII and association with KHS and the hack, down to his repeated email nudges to the victim company (and his attempt to get 2 Bitcoins to stop hacking them). His Twitter account, Facebook account, and email account could all be easily correlated both through IP and name, and activity on all three inculpated him in the hack.

The only mention of any security in the complaint is that Bitcoin account.

Sure, Ferizi was not playing the role of formal recruiter here, but instead agent provocateur and hacker. Still! The FBI is billing this guy as a hacker. And he did less to protect his identity then I sometimes use.

At least in this case, FBI isn’t going dark on ISIS’ attempts to incite attacks on Americans.

The Great Transformation Part 2: More on Markets

The first two posts in this series are:

The Great Transformation: Mainstream Economics and an Introduction to a New Series

The Great Transformation Part 1: The Market

In Part 1 I discussed the definition of markets in The Great Transformation, and noted that Karl Polanyi gives a definition, while mainstream neoliberal economic theory doesn’t. The absence of a definition in neoliberal theory is crucial to its success. Neoliberal economists do not have to account for the vast differences among markets: they can treat all markets as identical for purposes of their mathematical edifices.

Polanyi’s simple definition enables him to discuss the differences among markets and the different purposes they serve in different societies. In the Mercantilist era, say up to about the early 1800s, Polanyi identifies three different kinds of markets: external, internal and local. Local markets serve the local community as in the case of householding societies. Polanyi says they are not intrinsically competitive, nor are they focused on gain. P. 61

External markets are for long-distance trade, what Polanyi identifies as the carrying trade. They form at natural stops along the trails of transport, at river crossings and ports. They do involve gain, and the propensity of some people for truck and barter, but they are limited to specific sites and specific goods. They are not essentially competitive, Polanyi says. Over time, long-distant market sites turn into towns, and their principle purpose is to manage external trade. They are not a function of the nation state, but of those towns, which work to keep their long-distance markets apart from the lives of those in the countryside.

The [Hanseatic League] were not German merchants; they were a corporation of trading oligarchs, hailing from a number of North Sea and Baltic towns. Far from “nationalizing” German economic life, the [Hanseatic League] deliberately cut off the hinterland from trade. The trade of Antwerp or Hamburg, Venice or Lyons, was in no way Dutch or German, Italian or French. London was no exception: it was as little “English” as Luebeck was “German.” The trade map of Europe in this period should rightly show only towns, and leave blank the countryside—it might as well have not existed as far as organized trade was concerned. P. 66.

The third kind of market, the internal market, is a deliberate creation of the nation-state. As Polanyi explains it, the towns worked to maintain the separation between long distance and local markets, as a matter of self-protection of the town and of the town officials and elites. They feared the destructive impact of mobile capital on their existing institutions, and on their prerogatives and status.

Deliberate action of the state in the fifteenth and sixteenth centuries foisted the mercantile system on the fiercely protectionist towns and principalities. Mercantilism destroyed the outworn particularism of local and intermunicipal trading by breaking down the barriers separating these two types of noncompetitive commerce and thus clearing the way for a national market which increasingly ignored the distinction between town and countryside as well as that between the various towns and provinces. P. 68-9.

This classification of markets by their reach is convenient for the story Polanyi is telling, but there are modern counterparts. In many cities around the country, but especially in Europe, say Paris, there are local market streets, where you can find your daily food and your minor needs, like a plate to replace the one that mysteriously broke. There are weekly or bi-weekly markets where you can find all sorts of things, from a sweater to a giant vat of choucroute garnie, with nearly black juniper berries punctuating the Toulouse sausages and the hunks of pork. These are just like the local markets Polany describes, and just as important to daily life in these otherwise impersonal cities.

Scattered throughout the city, there are stores focused on specific area of France, Auvergne butchers, stores selling Charolais beef, Perigord stores, with their jars and cans of confit du canard, and many others, wine shops specializing in Champagnes or wines from Burgundy. These stores connect people to their roots in the country, and might be regarded as internal markets.

In the wealthier parts of the city there are other kinds of markets. You can find African, Indian and Near Eastern textiles and jewelry, and lots of similar things. There are shops selling Italian shoes and clothes, branded and unbranded. There is fantastic jewelry and jeweled pieces from world makers, and at prices that bug out the eyes. Each of these kinds of stores are grouped together, so that a person searching for antique French furniture only has to visit a few streets to get a good sense of what is available. This view of consumer culture reinforces Polanyi’s view that a market is a place.

Of course, standard economics rejects this simple definition. Here’s a typical reaction, from Santhi Hejeebu & Deirdre McCloskey (H/T commenter Alan)

…Polanyi never got over the noneconomist’s inclination to think of markets as literal marketplaces, rather than relationships among people in many different places…

The authors are both economists, so this is not a mistake. Their definition of a market is “relationships among people in many different places. Let’s try an example. In BKB Properties, LLC v. SunTrust Bank, (MD Tenn. 2011) the owners of the plaintiff wanted a fixed rate loan from SunTrust Bank to build a new building for their car dealership. SunTrust would only agree to a floating rate loan, and offered to sell plaintiff an interest rate swap to create a synthetic fixed rate. Plaintiff agreed. Several years later, when interest rates fell in the wake of the Great Crash, BKB’s owners wanted to refinance the note, and when SunTrust refused, plaintiff exercised its right of prepayment. SunTrust refused to accept the prepayment and release the mortgage on the land unless the plaintiff paid a stiff penalty to cancel the interest rate swap, which had a 10 year term, while the note was prepayable. The Court ruled for SunTrust, saying that this is just a routine contract case, and that the parties are assumed to understand the terms of the documents they signed.

Note that SunTrust could have purchased a swap to protect its interests more intelligently than BKB Properties, Ltd., a shell corporation set up by a car dealer. SunTrust could have canvassed offers from several banks and hedge funds, which at least sounds like a market.

But on the given facts, was this a market transaction? In the world of Hejeebu and McCloskey it certainly is. After all, these are two parties with some kind of relationship who are in different places. Swap creators don’t post prices, don’t disclose transactions in any usable way, and according to the Court don’t have any duties to their customers. The relationships that Hejeebu and McCloskey talk about are limited to Buyer Beware, and that’s good enough for them.

In Polanyi’s world, maybe not. At that time, there was no physical place one could go to buy and sell swaps, at least if you were a car dealer in a suburb of Nashville, TN. Specifically, there was no analogue to the stock market, or an electronic exchange. There was no place to find data, no place to find alternative bids, no quote sheets, and there was often negotiation over the terms of a swap which affected its value to both parties, again with no transparency to outsiders who might have learned of its existence. In sum, there was no place for any activity that sounds market-like.

Definitions matter. Polanyi’s definition gives us a good idea of what he is talking about, and his three kinds of markets are useful and convenient in his analysis. How do we talk sensibly about the “swaps market”? In what way is it like the market for choucroute garnie?

What Is the Point of the SEC ECPA-Reform Power Grab?

Last week, the Senate Judiciary Committee had a hearing on Electronic Communication Privacy Act reform, the main goal of which is to provide protection for content served on a third party’s server. Because reform is looking more inevitable in Congress (the House version of the bill has more sponsors than any other), government agencies used the hearing as an opportunity to present their wish list for the bill. That includes asking for an expansion of the status quo for civil agencies, with witnesses from SEC, DOJ, and FTC testifying (DOJ also made some other requests that I hope to return to).

Effectively, the civil agencies want to create some kind of court order that will provide them access to stored content. A number of the agencies’ witnesses — especially SEC’s Andrew Ceresney — claimed that a warrant is the same as an order, which culminated in Sheldon Whitehouse arguing (after 45:30) that an order requiring court review is actually less intrusive than a warrant because the latter is conducted ex parte.

It took until CDT policy counsel (and former ACLU lawyer) Chris Calabrese to explain why that’s not true (after 2:08):

We have conflated two really different and very different things in this committee today. One is a court, some kind of court based on a subpoena and one is a probable cause warrant. These are not the same thing. A subpoena gives you access to all information that is relevant. As pursuant, relevant to a civil investigation, a civil infraction. So if you make a mistake on your taxes, that’s a potential civil infraction. Nothing that has been put forward by the SEC would do anything but be a dramatic expansion of their authority to get at ordinary people’s in-boxes. Not just the subjects of investigation, but ordinary folks who may be witnesses. Those people would have the–everything in their in-boxes that was relevant to an investigation, so a dramatic amount of information, as opposed to probable cause of evidence of a crime. That’s a really troubling privacy invasion.

I’m utterly sympathetic with Calabrese’s (and the EFF’s) argument that the bid for some kind of civil investigative order is a power grab designed to bypass probable cause.

But I wonder whether there isn’t another kind of power grab going on as well — a bid to force banks to be investigated in a certain kind of fashion.

It was really hard, to begin with, to have former and (presumably) future Debevoise & Plimpton white collar defense attorney Andrew Ceresney to talk about how seriously SEC takes it job of  “the swift and vigorous pursuit of those who have broken the securities laws through the use of all lawful tools available to us,” as he said in his testimony and during the hearing. There’s just been no evidence of it.

Moreover, as Ceresney admitted, SEC hasn’t tried to obtain email records via an order since the US v. Warshak decision required a warrant in the 6th Circuit, even though SEC believes its approach — getting an order but also providing notice to the target — isn’t governed by Warshak. As SEC Chair Mary Jo White (another revolving door Debevoise & Plimpton white collar defense attorney) said earlier this year,

“We’ve not, to date, to my know­ledge, pro­ceeded to sub­poena the ISPs,” White said. “But that is something that we think is a crit­ic­al au­thor­ity to be able to main­tain, done in the right way and with suf­fi­cient so­li­cit­ous­ness.”

For five years, the SEC hasn’t even tried to use this authority, all while insisting they needed it — even while promising they would remain “solicitous,” if there were any worries about that.

Claims that the SEC needed such authority might be more convincing if SEC was actually pursuing crooks, but there’s little evidence of that.

Which is why I’m interested in this passage, from a letter White sent to Pat Leahy in April 2013 and appended to Ceresney’s testimony, explaining why SEC can’t have DOJ obtain orders for this material.

DOJ only has authority to seek search warrants to advance its own investigations, not SEC investigations. Thus, the Commission cannot request that the DOJ apply for a search warrant on the SEC’s behalf. Second, many SEC investigations of potential civil securities law violations do not involve a parallel criminal investigation, and thus there is no practical potential avenue for obtaining a search warrant in those cases. The large category of cases handled by the SEC without criminal involvement, however, have real investor impact, and are vital to our ability to protect- and, where feasible, make whole – harmed investors.

The only times when SEC would need their fancy new order is if the subject of an investigation refuses to turn information voluntarily, and the threat that they could obtain an order anyway is, according to Ceresney, they key reason SEC wants to maintain this authority (though he didn’t argue the apparent absence of authority has been responsible for SEC’s indolence over the last 5 years). But that act, refusing to cooperate, would get companies more closely into criminal action and — especially under DOJ’s purportedly new policy of demanding that companies offer up their criminal employees — into real risk of forgoing any leniency for cooperation. But White is saying (or was, in 2013, when it was clear Eric Holder’s DOJ wasn’t going to prosecute) that SEC can’t ask DOJ to subpoena something because that would entail a potentially criminal investigation.

Well yeah, that’s the point.

Then add in the presumption here. One problem with prosecuting corporations is they hide their crimes behind attorney-client and trade secret privileges. I presume that’s partly what Sally Yates meant in her new “policy” memo, noting that investigations require a “painstaking review of corporate documents … which may be difficult to collect because of legal restrictions.” SEC’s policy would be designed for maximal privilege claims, because it would involve the subject in the process.


If the legislation were so structured, an individual would have the ability to raise with a court any privilege, relevancy, or other concerns before the communications are provided by an ISP, while civil law enforcement would still maintain a limited avenue to access existing electronic communications in appropriate circumstances from ISPs.


Other criminals don’t get this treatment. Perhaps the problems posed by financial crime — as well as the necessity for broader relevancy based evidence requests — are unique, though I’m not sure I buy that.

But that does seem to be a presumption behind this SEC power grab: retention of the special treatment financial criminals get that has thus far resulted in their impunity.

Real Football Is Here Again, Rock The Wheelhouse!

Okay, rough start for the season in the Pac-12 South. The Devils sucked, and Texas A & M handed them their asses. Really ugly. And some random B1G team, okay, the Mighty Fighting Journalists, whipped, even worse, the Trees of Stanford.

Oh, yes, and there was a “Gronking To Remember” Thursday night. That line came courtesy of Scribe, and it is just about perfect.

So, let’s Gronk & Roll lug nuts!

STUDENT ATHLETES: Man, this pains me to say so, but I must. Urban Meyer and the Ohio State Buckeyes look like one of the most impressive college football teams in history. Doesn’t hurt that they have three quarterbacks that would be capable of leading them to an NCAA National Championship. For all the talk about Saban and Alabama over the last few years, OSU and Meyer are on a plane well above any of that. The rest of college football is currently an afterthought. But watch out for Josh Rosen and the UCLA Bruins. The Sun Devils got their asses handed to them by the Aggies, but I think the Devils will be back. No longer is it only the Quackers at Oregon and that stupid horse at USC in the way though, Rosen and the Bruins are for real.

PROS AND JOES: Forget the Joes, Montana is not walking through that door. But Tom Brady is still here. They talk about the golden age of football, and there is actually some currency to that from my memories as a kid. Say what you will though, the era of Tom Brady and Aaron Rodgers is pretty darn good. After a great regular season, I truly hope they meet in Super Bowl 50. What could be better than that?

Ahem, I hear the Stillers are squawking after their Gronking. Seriously Pittsburghians don’t do that. The Steelers lost fair and square, just like the whiny ass Colts and SeaSqwuaks last year.

Go figure, the Pats remain ruthlessly on top. The only way it could be more apparent is if Tom Brady personally drove his cleats into Roger Goodell’s supine flaccid chest on the way past the goal line in Super Bowl 50. So, here’s to that scene.

A “reader” of this blog sent me a message last night saying that Peyton is nuthin but a “Noodle Arm”.

I could blather on, but why? We don’t know squat about anything this early in the season. But, we will find out! Starting now.

So, here is to yet another football season here in the Wheelhouse! So, let us rock and roll people. Get down to it!

Can (Should?) DHS Stave Off CISA?

Yesterday, DHS Secretary Jeh Johnson announced some shifts in the leadership of the National Cybersecurity and Communications Integration Center. The changes don’t amount to much — basically a change in reporting for Dr. Andy Ozment, who is already Assistant Secretary of the Office of Cybersecurity and Communications (though it’s worth noting that Ozment is one of the too-rare people high level in government cybersecurity positions with a technical background). Now, Ozment will report directly to Johnson.

But I am interested in the way DHS is making news, and when.

Last week, Al Franken released the response from DHS he got to some inquiries, notably about how the Cyber Information Sharing Act would affect efforts already underway to share data. Most reporting on it focused on privacy — that’s what Franken himself emphasized — but the letter itself provided far more detail on the information sharing already taking place through NCCIC.

The letter described five different means of sharing information currently in place.

  • In-person information sharing on the National Cybersecurity and Communications Integration Center (NCCIC) watch floor;
  • Bilateral sharing of cyber threat indicators, including via the Cyber Information Sharing and Collaboration Program (CISCP) and through automated sharing and receipt of cyber threat indicators;
  • As-needed information sharing via standing groups;
  • Broad dissemination of alerts and bulletins;
  • Strategic engagement and collaboration.

I was rather curious about the agencies with which NCCIC currently shares data.

  • US Northern Command
  • US Cyber Command
  • National Security Agency
  • Secret Service
  • Immigration and Customers Enforcement
  • Department of the Treasury
  • FBI
  • Department of Energy

This is a different list than the agencies that would automatically receive data under CISA — Commerce (which appears to serve a carrot-and-stick force in such issues) and the Office of Director of National Intelligence would not be on the list.

DHS also claimed to be “beginning to share ‘machine-readable’ cyber threat indicators and notes it will be expanding how many partners it will do so later this year.

Finally, as I noted earlier, DHS said it would take 6 months to implement the information sharing portal envisioned by CISA in place.

All of which is to say that DHS made a bid with this letter to Franken to say (as I interpreted), “we’re sharing data right now, but if CISA passes, not only will Americans get less protection, but it will stall cybersharing for 6 months.”

And now DHS is increasing the profile of its cyber staff.

I’d say all that was just bureaucratic wrangling — and it is that.

Except I think there is an opportunity, given the recess, the increasing calls for more substantive cyber legislation, and the inevitable roadblock once the Senate returns (particularly if, as is happening thus far, Ted Cruz is doing reasonably well or even poorly in the GOP Clown Show and has the incentive to cause headaches for Mitch McConnell in hopes of electoral gain) to present this as information sharing that is already advanced well beyond what CISA would do, and in a way that accomplishes what it is supposed to without the big downsides of CISA. That’s still an outside chance. But increasingly possible and — given how dumb CISA is — probably a better solution.

Black Lives Matter

I was at the Netroot Nations candidates session listening to Martin O’Malley with other writers from Emptywheel in a cavernous hall with terrible acoustics and wildly over-amped speakers. We had already heard the moderator tell his story; his high pitched voice was hard on my ears, and the racketing speakers compounded the misery. Suddenly a group of young women entered singing, moved to the front of the hall, and started chanting slogans: Say her Name, and more. I have ear issues, and loud rackety noises make me anxious and irritable. I grumbled about the noise, turned off my hearing aids, then gave up and went to the men’s room for a bit of relief. When I emerged from my sound sanctuary, Bernie Sanders was shouting over the action, the noise was too much and I left.

I can recall three contemporary thoughts: 1. Enough, already, you’ve made your point. 2. Why are you shouting at your friends, people who agree with you. 3 No politicking by Bernie Sanders for me.

After lunch, I retreated to the central hall, and listened to This Week in Blackness. The host interviewed O’Malley and several of the BLM activists. O’Malley was properly apologetic for his use of the phrase “all lives matter”, said he had met privately with the activists, and answered several tough questions, including what he thought he had done wrong as Mayor of Baltimore or as Governor of Maryland. The activists were straightforward and unapologetic, clear and forceful. They all said the action was not directed at the candidates in a personal way. It was a demand that candidates and the people attending NN15 connect directly to real-life issues important to a huge group of activists. They didn’t want just airy planks for some platform, or an explanation of how some group’s standard proposals met their demands. They wanted everyone in the room to understand their specific personal concerns. One of the women said something like: all those candidates have great plans, but I’m afraid I will not be alive to benefit from those plans. I am afraid, she said. I am fearful, she said.

“And I am afraid”, writes Ta-Nehisi Coates in Between the World and Me. He says he always felt fear, and that his parents, his aunts, his uncles, all were afraid. He shows us how that fear drove the parenting of his extended family. He describes his boyhood in a neighborhood of Baltimore. Those of us sleeping, locked into what Coates defines as the Dream of being White, call that part of town “tough” to separate us from that fear. We see his days at Howard, brief intervals of feeling safe, and fear drenching him when he leaves campus. Then he tells us about the horrifying death of his brilliant friend Prince Jones at the hands of a Black police officer.

He describes that fear through the facts of lives, in language better suited to my hearing than the chants of the women of Black Lives Matter, but it goes to the same place in my heart that their explanation does. She, each of them, is right. This isn’t about those politicians, and it isn’t about me or my physical hearing issues. It’s about a group of my fellow citizens who live a life so different from mine that I cannot reconcile it with my own. I understand racism, what Dreamers call structural racism to distance ourselves from it. The Black Lives Matter women led me to Coates’ marvelous book, where I can begin to grasp the fear and its crushing implications. Understanding cannot come from my own writing or thinking, but only from listening to others, exactly as the women of Black Lives Matter demanded.

Sometimes I think that I’ve spent my life unlearning the stories I was taught, and replacing them with something less untrue. But. I refuse to be the old people who forced my generation to impose the Dream of Whiteness on the bodies of the people of Viet Nam. I will not be the old lawyers and judges who called my women colleagues Honey and Sweetie until they passed out of our lives.

And I will try not to be a pseudo-intellectual toad like David Brooks, using a grade-school description of the American Dream of Exceptionalism in his repulsive and deliberate misreading of Coates’ Dream of Whiteness. Neither of those Dreams is worth one more slug of misery for any of my fellow humans.

Beware the FISCR Fast-Track

As promised, today ACLU asked the Second Circuit to enjoin the NSA’s collection of their phone records under the renewed phone dragnet.

Accordingly, Plaintiffs respectfully ask that the Court now grant the preliminary relief it refrained from granting in its earlier decision. Specifically, Plaintiffs ask that the Court issue a preliminary injunction (i) barring the government, during the pendency of this suit, from collecting Plaintiffs’ call records under the NSA’s call-records program; (ii) requiring the government, during the pendency of this suit, to quarantine all of Plaintiffs’ call records already collected under the program; and (iii) prohibiting the government, during the pendency of this suit, from querying metadata obtained through the program using any phone number or other identifier associated with them.

The filing offers the Second Circuit to provide an alternative interpretation of the events of early June, one that actually incorporated their earlier opinion as binding. It even flips the ratification argument FISC has long clung to to argue that by not altering the program while taking explicit notice of the Second Circuit decision, Congress had to have been ratifying the Second Circuit’s ruling that bulk collection under Section 215 was unlawful.

In the present context, as in most others, the most reliable indicator of congressional intent is the text of the law. Here, that text admits no ambiguity. It makes clear that Congress intended to leave the government’s surveillance authority with respect to call records unaltered for the 180 days after the passage of the Act.

The FISC seems to have reasoned that Congress must have intended to authorize bulk collection during the transitional period because it did not expressly prohibit it. See id. at 10–11 (“Congress could have prohibited bulk data collection . . . .”). But the FISC has it backwards. In our democracy, the government has only the powers the people have granted it; the question is not what surveillance Congress has proscribed, but what surveillance it has permitted. Moreover, here Congress was legislating in the shadow of this Court’s May 7 opinion, which indicated that this Court—the only appellate court to have construed the statute—would continue to construe the statute to disallow bulk collection unless Congress amended it to expressly authorize such collection. See, e.g., Clapper, 785 F.3d at 818 (stating that the Court would read the statute to authorize bulk collection only if Congress authorized it in “unmistakable language”); id. at 819 (stating that the government’s proposed construction of the statute would require “a clearer signal” from Congress); id. at 821 (indicating that, if Congress wanted to authorize bulk collection under the statute, it would have to do so “unambiguously”); see also id. at 826–27 (Sack, J., concurring).

This Court’s May 7 opinion was cited hundreds of times in the legislative debate that preceded the passage of the Act; it was summarized at length in the committee report; and one senator even read large parts of the opinion into the legislative record. See 161 Cong. Rec. S3331-02 (daily ed. May 31, 2015) (statement of Sen. Rand Paul); H. Rep. No. 114-109, at 8–10 (2015); June 2 Application at 9 n.2 (“Congress was aware of the Second Circuit’s opinion . . . .”). Against this background, it would be bizarre to understand Congress’s “failure” to expressly prohibit bulk collection as an implicit endorsement of it. Indeed, if it has any bearing at all, the doctrine of legislative ratification favors Plaintiffs.

The argument is not entirely convincing, but it has the advantage of being less ridiculous than FISC’s claim that Congress ratified a court ruling that 1) Congress didn’t know about and that 2) FISC had never written up into an opinion.

Ultimately, though, this seems to be an invitation to the Second Circuit to weigh in on FISC’s surly refusal to pay attention to a Circuit Court ruling.

The FISC specifically rejected the reasoning of this Court’s May 7 ruling, writing that it rested “[t]o a considerable extent . . . on mischaracterizations of how [the call-records program] works and on understandings that, if they had once been correct, have been superseded” by the USA Freedom Act. Id. at 16. On the issue of the constitutionality of the call-records program, the FISC judge reaffirmed earlier FISC opinions holding that the issue was controlled by Smith v. Maryland, 442 U.S. 735 (1979), and that the call-records program was, therefore, consistent with the Fourth Amendment.

Of course, we’re faced with a jurisdictional conflict, one discussed at length in a hearing immediately after the Second Circuit ruling.

Sunlight Foundation’s Sean Vitka: Bob, I have like a jurisdictional question that I honestly don’t know the answer to. The Court of Appeals for the Second Circuit. They say that this is unlawful. Obviously there’s the opportunity to appeal to the Supreme Court. But, the FISA Court of Review is also an Appeals Court. Does the FISC have to listen to that opinion if it stands?

Bob Litt: Um, I’m probably not the right person to ask that. I think the answer is no. I don’t think the Second Circuit Court of Appeals has direct authority over the FISA Court. I don’t think it’s any different than a District Court in Idaho wouldn’t have to listen to the Second Circuit’s opinion. It would be something they would take into account. But I don’t think it’s binding upon them.

Vitka: Is there — Does that change at all given that the harms that the Second Circuit acknowledged are felt in that jurisdiction?

Litt: Again, I’m not an expert in appellate jurisdiction. I don’t think that’s relevant to the question of whether the Second Circuit has binding authority over a court that is not within the Second Circuit. I don’t know Patrick if you have a different view on that?

Third Way’s Mieke Eoyang: But the injunction would be, right? If they got to a point where they issued an injunction that would be binding…

Litt: It wouldn’t be binding on the FISA Court. It would be binding on the persons who received the —

Eoyong: On the program itself.

Patrick Toomey: The defendants in the case are the agency officials. And so an injunction issued by the Second Circuit would be directed at those officials.

Because FISC has its own appellate court, the FISA Court of Review (FISCR), it doesn’t have to abide by what the Second Circuit rules, especially not if FISCR issues its own ruling on the same topic.

For that reason, I reiterate my prediction that the FISC may resort to using a provision in the USA F-ReDux to eliminate the Second Circuit’s ability to weigh in here. USA F-ReDux affirmatively permitted the FISC to ask the FISCR to review its own decisions immediately, what I’ve dubbed FISCR Fast Track. It was dubbed, naively, as a way to get appropriate appellate review of the FISC’s secret decisions (yet the provision, as written, never requires any adversary, so it doesn’t address the problems inherent to the FISC). But here, there’s no reason for such secret review and an appellate court has already weighed in.

But that doesn’t mean the government can’t use it.

In other words, if the Second Court rules in a way the FISC doesn’t like (which they already have), if the FISC just wants to reiterate that this is one situation where the FISC gets to override the judgments of appellate courts (which the FISC has already done), or if the FISC just wants to set the precedent that no FISC decision will ever be reviewed by a real court, it can ask the FISCR to weigh in (and given FISC’s refusal to call in a real advocate, the FISCR would even have precedent to blow off that suggestion).

The FISC has the ability to undercut the Second Circuit. And they’ve already shown a desire to do just that.

Beware FISCR Fast Track, because it could really threaten any ability to review these kangaroo court decisions.

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Emptywheel Twitterverse
emptywheel TIL: 3 years after insisting if you don't call Benghazi terrorism instantaneously terrorists win it's okay not to call terrorism terrorism.
bmaz @mattfwood @jujueyeball You may read, but you clearly have a comprehension problem. Now go away or I will block your ass.
bmaz @mattfwood @jujueyeball Truly, go away with your repetitive false baloney. I am done with you.
bmaz @mattfwood @jujueyeball Because Dan's point was that too much is being called terrorism and that it will hasten a police state w/less rights
bmaz @mattfwood @jujueyeball Now begone, I am done with your nonsense
bmaz @mattfwood @jujueyeball Neither you nor JuJu can tell the difference between definitional provisions and actual available charge provisions
bmaz @mattfwood @jujueyeball But hey WTF, if you think you know more than the AG, preeminent experts and experienced criminal attys, stay deluded
bmaz @mattfwood @jujueyeball You think maybe there is a reason the analogous case of Dylan Roof wasn't charged as "terrorism"? Of course there is
bmaz @mattfwood @jujueyeball Here is piece by Head of Brennan Center Nat Sec Dept stating the same thing+explaining why https://t.co/ut4SLf1tjT
bmaz @mattfwood @jujueyeball You're just dense aren't you? Here is article quoting AG Lynch that terrorism does not apply https://t.co/fi5iTOYeMq
bmaz @mattfwood @jujueyeball Right back at you
November 2015
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