Law – Page 26 – a sibilant intake of breath

Citizens arrest

There are good reasons why we restrict powers like arrest to trained agents of the government. While there are certainly many problems with the conduct of police and oversight over them, at least they have training and experience and there are mechanisms in place to evaluate their actions. By contrast, empowering every shopkeeper and random citizen to physically detain people who they think are criminals seems dangerous and unnecessary. In a few cases, it may be the least bad option available, but I think the onus should be on the person performing the arrest to justify it later.

In the grand scheme of things, shoplifting seems a lot less significant than physically detaining somebody against their will. Saying that as soon as somebody steals from you, you have the right to effectively kidnap them seems liable to create harm and abuse. Kidnapping is rightly considered a more serious offense than shoplifting, and I don’t think the fact that someone committed a crime before being thus apprehended has all that much legal or moral significance. It smacks of the sort of crude revenge-based legal systems where people get their hands lopped off (or get thrown into the terrible conditions of prison, but that is another discussion).

That’s why I think it is wrongheaded when people argue that David Chen – the Toronto shopkeeper who physically detained a shoplifter – should never have been criminally charged. When you opt to take the law into your own hands, you are effectively claiming that the situation is so important and so urgent that you should take over from the actual authorities. It seems to me that such cases are rare and involve things like real risks of injury or death – not the danger of losing a few dollars worth of merchandise.

If you feel that you need to usurp the powers of the police, it just seems sensible to expect that you may need to justify that choice in a court of law. They may well find that you behaved reasonably. But the fact that there will be some after-the-fact oversight could in itself act as a minor deterrent to abuses of power.

Bell, usage based billing, and TekSavvy

It seems the Canadian Radio-television and Telecommunications Commission (CRTC) has let the dominant internet service provider (ISP) Bell largely ruin the smaller ISP Teksavvy:

From March 1 on, users of the up to 5 Mbps packages in Ontario can expect a usage cap of 25GB (60GB in Quebec), substantially down from the 200GB or unlimited deals TekSavvy was able to offer before the CRTC’s decision to impose usage based billing…

We encourage you to monitor your usage carefully, as the CRTC has imposed a very high overage rate, above your new monthly limit, of $1.90 per gigabyte ($2.35 per gigabyte in Quebec).

Forcing big companies like Bell to lease capacity to companies like Teksavvy seems very smart, as it helps prevent dominant monopolies from forming. Unfortunately, such arrangements don’t have much meaning if you also allow the big company to force their own policies on the smaller companies that are leasing from them.

Consider the case of a customer using 100 GB a month – half of Teksavvy’s previous low cap. Before, they would have paid $44.30 with tax. Under the new rules, they would pay that plus another $142.50 in additional data usage fees.

Regulating health claims

Arguably, the existence of truth in advertising laws has a perverse effect when they are not rigorously enforced.

For example, all kinds of highly dubious claims get made about herbal supplements. Not only do manufacturers not need to provide high-quality evidence to back them up, but they can print things that are contradicted by high quality studies that have been done.

In Trick or Treament? The Undeniable Facts about Alternative Medicine, Simon Singh lists some of these:

The evidence that chamomile or lavender helps with insomnia is poor.
There is poor evidence that either asian or siberian ginseng helps with impotence, cancer, diabetes, performance enhancement, or herpes. There is also poor evidence that it serves as a ‘cure all’.
The evidence that aloe vera helps with herpes, psoriasis, wound healing, or skin injuries is poor.
There is poor evidence that evening primrose helps with eczema, menopausal problems, PMS, asthma, or psoriases, or that it is a ‘cure all’.

Singh also lists some side effects of herbal medicines that are often not described on the packages. For instance, hops can interfere with oral contraceptives, and many herbal supplements can interfere with anticoagulant and antidiabetes drugs. St John’s Wort can inhibit the normal operation of over half of prescription drugs, including anti-HIV and anti-cancer drugs, as well as oral contraceptives.

I have personally seen really absurd claims made on products in health food stores, often featuring real scientific terms used in meaningless ways.

What I worry is that people have an inflated expectation about how closely health claims are scrutinized. That could give people a false sense that the claims made on herbal supplement bottles, by dieting companies, and so on deserve to be taken seriously, when they could well be pure hogwash.

I was surprised and disappointed recently to listen to a conversation in which the participants asserted that (a) most or all of the claims made by doctors and pharmaceutical companies are false and made in bad faith and (b) that the claims made by companies selling ‘alternative’ treatments were credible. While the system for reviewing the former may be lacking, there seems to be no system at all for reviewing the latter. As a consequence, there is a lot of dangerous nonsense out there.

Perhaps there should be some sort of mandatory warning included in advertising that contains unverified medical claims. Something along the lines of: “The health claims made in this advertisement have not been evaluated for accuracy”.

Unions and education

Education is one of relatively few remaining industries that are heavily unionized in industrialized countries, including Canada, the United States, and the United Kingdom. Given the societal importance it has, it seems worth examining whether that state of affairs serves the interests of the public at large. I certainly remember the disruptiveness of school strikes when I was growing up, and there is a plausible case that unions are one of the most powerful forces protecting the worst teachers. They also seem to have consistently opposed efforts to reward the best, preferring to reward seniority rather than competence. Arguably, the result is mediocrity in the profession and a lack of accountability. For instance, Eric Hanushek – an economist at Stanford – has concluded that if you could replace the bottom 5-8% of the worst teachers in the United States with teachers of average competence, the overall academic performance of American students would rise from near the bottom of international math and science rankings to near the top.

Arguably, unions are also able to exert undue political influence. They are able to lobby left-leaning political parties for favourable treatment, using money collected from membership dues. That is the basic model of lobbying employed by all interest groups, of course, but what is potentially worrisome is how that political support can be used to block the emergence of promising policies that would threaten union power, such as offering parents vouchers which they can use to cover a portion of private school fees, or merit-based pay schemes for teachers. Unions may be able to use wealth from an unjust status quo to fund the perpetuation of that same problematic state of affairs.

Are there any plausible or proven benefits to unions in education, except from the perspective of those who are members of them? Are there ways in which students would be worse off if they were taught by a non-unionized workforce, or one with a more limited right to strike? If so, can those benefits be said to adequately compensate for the harms that seem convincingly documented? If it is indeed the case that unions in the educational sector harm society at large – while benefiting their membership – it seems especially regrettable. Not only would it represent a situation in which a minority is exploiting its power over the population at large, but they would be doing so within an institution that is meant to be one of society’s great levelers. Those who lack access to decent educational options cannot plausibly be expected to thrive subsequently in many important areas of life, such as employment and informed and effective participation in public life.

Taking one action

Talking with my friend Meaghan, the question arose: what is the single most useful thing individuals can do easily to help address climate change? Almost certainly, it is taking some action to influence the politics in their country. For those living in democracies, there is probably nothing more useful they can do than nudging their elected representatives a bit toward understanding climate change, wanting to curb it, and being aware of how to do so.

As BuryCoal argues, the key to dealing with climate change is to stop burning fossil fuels. The more coal, oil, and gas stay underground, the less the climate will change. At the moment, I think that is probably the most important message people can convey to their representatives.

Of course, anyone who you tell that to is likely to come back at you with various objections. Fossil fuels power the world economy, for instance. It may be unrealistic to expect the average citizen to prepare counter-arguments for the major objections they will hear – which range from the realistic to the completely deluded. This major counter-argument, however, seems to have two responses. First, we do have alternatives. The total amount of renewable energy out there is huge, and we have many different ways to capture it. Second, nothing about the universe guarantees our current level of energy use. It may well be that future generations experience leaner times. That is far preferable to a world where they are trying to deal with catastrophic or runaway climate change.

The degree to which members of the general public need to understand climate change and its solutions is debatable. It may well be that the problem can be solved by stealth, without much input from the average individual. My fantasy climate change policy doesn’t call for much in the way of voluntary action. For those individuals who are concerned, I would say that first and foremost they should be expressing their deep concern to their elected representatives, highlighting how climate change is the challenge facing humanity and the most important current force that will determine how future generations live.

Once you have done that, you can go on to take actions that reduce your personal contribution to the problem, like improving the efficiency of your home, going vegetarian, reducing travel, etc. Ultimately, the emergence of society-wide mandatory solutions seems to have a much greater chance of addressing the problem than hoping for bottom-up voluntary actions to do the job.

One North American group focused on encouraging ordinary citizens to lobby their representatives for action on climate change is the Citizens Climate Lobby.

Sovereign debt crises in the EU

I find all the economic anxiety in the European Union (EU) to be rather worrisome, from a long-term historical perspective. I think the last 500 years of history demonstrate pretty convincingly that the most benign possible way for European states to spend their time is arguing over agricultural subsidies and cheese standards. It’s definitely a lot more congenial than building tanks and smashing through Poland and Belgium over and over.

As such, I rather hope the EU is able to sort things out and set up systems that prevent these problems in the future. There definitely need to be ways in which the actions of less responsible governments can be prevented from requiring frequent bailouts from more responsible governments, but I don’t think the risk of that happening from time to time is so severe that it is worth derailing the whole European project over.

Ethics and weapons of mass destruction

Unsurprisingly, my review of Richard Rhodes’ The Making of the Atomic Bomb generated a discussion on the ethics of the United States using such bombs on Japan in 1945.

In the same book, a moral question with some similar characteristics comes up. Describing the American attack on Iwo Jima, Rhodes explains:

Washington secretly considered sanitizing the island with artillery shells loaded with poison gas lobbed in by ships standing well offshore; the proposal reached the White House by Roosevelt curtly vetoed it. It might have saved thousands of lives and hastened the surrender – arguments used to justify most of the mass slaughters of the Second Worlld War, and neither the United States nor Japan had signed the Geneva Convention prohibiting such use – but Roosevelt presumably remembered the world outcry that followed German introduction of poison gas in the First World War and decided to leave the sanitizing of Iwo Jima to the U.S. Marines.

In the end, 6,821 American marines were killed and 21,865 were injured. 20,000 Japanese troops died, with 1,083 ultimately surrendering.

I presume most readers think the use of poison gas would have been more immoral than attacking with Marines, despite how similar numbers of Japanese troops would likely have been killed in either case. What I am curious about is the reasoning. Is the use of certain kinds of weapons fundamentally unacceptable, regardless of the consequences of their use or non-use? Or would using poison gas on Iwo Jima have established a harmful precedent that would have caused greater suffering later? Or is there some other justification?

Spying on the U.N.

In addition to describing many situations of allies spying on allies, Richard Aldrich’s GCHQ: The Uncensored Story Of Britain’s Most Secret Intelligence Agency also describes a number of alleged incidents of the United States and United Kingdom spying on the United Nations, particularly during the led-up to the Iraq War.

Aldrich describes how the NSA and GCHQ used the UNSCOM weapons inspectors in Iraq as “short-range collectors” of signals intelligence (SIGINT). He also describes the bugging of the U.N. headquarters in Iraq during that period, the bugging of the U.N. Secretariat (including Secretary General Annan’s office), and espionage conducted against non-permanent members of the Security Council before the vote that would have authorized the 2003 invasion of Iraq.

Aldrich claims that “listening in on the UN was routine” and that “in 1945 the United States had pressed for the UN headquarters to be in New York precisely in order to make eavesdropping easier”.

GCHQ: The Uncensored Story of Britain’s Most Secret Intelligence Agency

Richard Aldrich’s excellent GCHQ: The Uncensored Story of Britain’s Most Secret Intelligence Agency contributes significantly to the public understanding of the role secret intelligence agencies have played in world affairs and the domestic politics of Britain and elsewhere. From the codebreaking of the second world war to the frightening mass surveillance and data mining of the modern era, Aldrich provides a consistently interesting and informative account. Technical details on signals intelligence (SIGINT) techniques are relatively few, but the book contains a lot of new and interesting information running quite close to the present day.

GCHQ’s history

The Government Communication Headquarters (GCHQ) is Britain’s version of America’s National Security Agency (NSA) or Canada’s Communication Security Establishment (CSE). They are primarily the governments interceptors and decrypters of communications: from the telemetry data from the missile tests of foreign powers to (increasingly) the electronic records tracking the communication and behaviour of all ordinary citizens. Aldrich covers the history of GCHQ from the second world war virtually up to the present day: with long sections on the U.S.-U.K. intelligence alliance; the Cold War; progressing intelligence technologies; overseas listening stations and decolonization; terrorism; secrecy, the media, and oversight by politicians and the public; the post-Cold War era; and the modern day.

Aldrich describes an extraordinary number of cases of allies spying on one another: from the United States and United Kingdom during the interwar and WWII periods to India bugging Tony Blair’s hotel room during a Prime Ministerial visit to the considerable espionage conducted by the U.S. and U.K. against the United Nations Security Council and Secretariat in the lead-up to the 2003 Iraq War. It is safe to assume that everybody is spying on everybody all the time. Indeed, in the later chapters, GCHQ describes how private organizations and organized crime groups are increasingly getting into the game. For instance, he alleges that British banks have paid out billions of Pounds to hackers who have gotten into their systems and blackmailed them.

GCHQ also documents the collusion between private companies and espionage organizations, going back at least to the telegraph and earliest submarine cables. Right from the beginning, the owners and operators of these communication links secretly passed along data to intelligence organizations, which was used for purposes of diplomatic and military espionage, as well as to gain economic advantage through industrial espionage. Aldrich also describes how private companies have been made to build back doors into their products so that organizations like GCHQ and the NSA can crack the communications of people using them. This applied to manufacturers of cryptographic equipment in neutral countries like Switzerland during the Cold War.

Aldrich also argues that the Data Encryption Standard (DES) was intentionally weakened to allow NSA snooping, though I have read elsewhere that the NSA actually used its expertise to strengthen the algorithm. Aldrich does a good job of describing one deep tension in the current mandate of GCHQ: on one hand, it is increasingly encouraged to help private British companies like banks secure their computer and communication systems. At the same time, it tries to preserve back doors and insecure communication methods in products used by others, so as not to undermine its own espionage mandate. Similarly, Aldrich talks on a number of occasions about the tension between using intelligence information and protecting the sources and methods used to acquire it. While it may be especially damning to condemn the dubious actions of a foreign power using their own intercepted and decrypted communication, doing so inevitably informs them that you are reading their traffic. Something similar is true when it comes to using surreptitiously acquired information to prosecute criminal trials.

GCHQ contains lots of information on the spotty record of the world’s intelligence services, when it comes to predicting major events. He describes many situations where policy-makers were caught by surprise, because their spy services didn’t pass along warning. These include the Yom Kippur War, the overthrow of the Shah of Iran, the Soviet invasion of Czechoslovakia, the fall of the Berlin Wall, and others. Aldrich also describes the Iraq-WMD fiasco, what it shows about the analysis of intelligence services, and what some of its broader political ramifications were.

At many points, Aldrich identifies how GCHQ and the NSA are by far the most costly intelligence services of the U.K. and U.S. respectively. The NSA dwarfs the CIA, just as GCHQ dwarfs MI5 and MI6 in staffing and resources. This is reflective of the special importance placed on intercepted communications by policy-makers. It is arguably also demonstrative of how GCHQ has been able to use the deep secrecy of its work to evade government scrutiny and secure considerable material support.

GCHQ’s present

The last section of Aldrich’s book is positively frightening. He describes how the fear of terrorism has driven a massive increase in technical surveillance – certainly within the U.K. but very likely elsewhere as well. He describes how a 2006 European law requires telephone and internet companies to retain comprehensive records of the communications of their customers for ten years, and how the government is planning to store their own copy of the information for data mining purposes. Aldrich explains:

The answer [to why the government wants its own copy of the data] is ‘data mining’, the use of computers to comb through unimaginable amounts of information looking for patterns and statistical relationships. This practice now constitutes the most insidious threat to personal liberty. What makes surveillance different in the age of ubiquitous computer and the mobile phone is that our data is never thrown away. Machines routinely store millions of details about our everyday lives, and at some point in the future it will be possible to bring these all together and search them.

Aldrich quotes a disturbing warning from the retiring Director of Public Prosecutions, Sir Ken Macdonald GC. Macdonald warns that powers are being irreversibly granted to the state, and that “we may end up living with something we can’t bear.”

Personally, I think all this is much more dangerous than terrorism. If the choice is between tolerating a few terrorist attacks per year and building up a gigantic secret alliance between government and private companies, designed to track all the details of the lives of individuals, I would prefer the terrorism. After all, terrorist groups are weak outlaw organizations with limited resources. The state, by contrast, is massive, potent, permanent, and not always subject to effective oversight. Our fear of a few bands of fanatics (collectively far less dangerous than smoking or car crashes) is driving us into giving the state unparalleled ability to monitor everybody.

The book is similar in purpose to Matthew Aid’s The Secret Sentry: The Untold History of the National Security Agency, though I think Aldrich’s book is significantly better. I recommend the entire book to history buffs and those with an interest in intelligence or the Anglo-American alliance. The last section – on the growing power of the state in response to terrorism – I recommend to everybody.

Finland’s nuclear waste dump

This is interesting: Finland is building a radioactive waste dump meant to store the stuff safely for at least 100,000 years. They are in the process of building a new nuclear reactor and – rather admirably – their law requires that the waste be dealt with domestically, rather than exported.

I have argued previously that I would feel more comfortable with the construction of new nuclear plants in Canada if the utilities building them also had to build adequate waste storage facilities before the power plants became operational.