Tuesday, June 11, 2013

More Thoughts on the NSA Snooping Leak

As I noted in yesterday's post, the whole NSA "scandal" came about because Edward Snowden, a high school dropout with Top Secret clearance, leaked thousands of pages of information to Glenn Greenwald, which was easy because he was an IT guy.  Oh, by the way, he had next to zero training in computers, and made over $120,000 per year.*

But aside from the fact that he leaked these documents, and from the fact that he apparently thinks Hong Kong will keep him safe from the U.S.**, Edward Snowden's identity should be a mere footnote in a much larger issue.  Namely, that the National Security Agency has been spying on Americans, and the head of the NSA apparently lied to Congress about it.  In fact, to the extent that there is a scandal, its that it took the completely batshit insane act of probable treason by Edward Snowden for any of us to know it was going on.

And ultimately, I don't mind the NSA doing any of this, if, and only if, the following safeguards are put into place - either by executive order, or, and much better, by actual statutory law:

1) Any internet spying is done to either (a) prevent acts of violence against Americans because they are Americans to induce terror, or, (b) to catch those who have perpetrated acts of violence against Americans because they are Americans in an effort to terrorize the populace.

2) Any information gathered that does not have to do with terrorism will be destroyed and cannot be used for any purpose by the government of the United States, or any state government in any criminal or civil proceeding, except for the purpose of trying terrorists in criminal court, or allowing the victims of terrorist attacks to sue terrorists or their organizations.

3) Have a Court that oversees the NSA actually provide some oversight.  Currently, the FISA court, which oversees the NSA, has allowed the government to do whatever it wants 99.67% of the time.  Of the over 33,000 requests for a warrant, the FISA court turned down the government 11 times.  ELEVEN!  There has to be better oversight.

Now this is a short set of limitations, and I'm still pondering what else to add, but I think this would be a great place to start.  One thing that worries me is that its pretty easy to add more topics to the list of things we use the information for.  For instance, I'd be hard-pressed not to include child porn or human trafficking to 1).  But I do think that we can find some middle ground in this.

*My favorite part of this post will be that my fiance' will read the point about Edward Snowden twice her salary (she's a teacher), and blowing up.  Also, unless you are an IT guy, an engineer or a scientist, you definitely studied the wrong subjects in school.  Just sayin'.

**Actually, I think the Hong Kong thing is a ruse to throw the investigators off his track. Snowden has been a spook since 2007, at least, and rose up from security guard to IT guy/spook really fast.  I don't think he's dumb enough to think that China won't give him up.  If I had to bet, I'd say he's either in Ecuador or in route to Ecuador right now, probably on a container ship.  Then again, I may have watched too many spy movies.

Monday, June 10, 2013

Deep Thoughts on the NSA. . .

Via Twitter and a few trusted blogs, I've been following the NSA "scandals" of recent days, and I've been troubled to say the least.  There are a number of practical and not-so-practical issues the result from the recent disclosures to the world via Edward Snowden.

First, it should be noted that the recent revelations about what the National Security Agency has done can't really be described as a scandal.  The NSA performed searches of phone metadata (who you called, where you were when you called, and how long the phone call lasted), and internet data on a massive scale because current law lets the NSA do so.  Both the Federal judiciary and Congress have been briefed on these activities, and the judiciary specifically authorized the NSA to take part in these activities (as far as I can tell).  In other words, what we have here isn't so much a scandal as it is a policy choice that was enacted into law, and has been overseen by all branches of the government.  

But with all that said, the question remains whether the NSA should be able to snoop on individuals at this level.  Unfortunately, because the NSA's activities are necessarily secret, we as Americans can't debate them the way we would with any other policy decision.  So, in that context, what Snowden did was important.  We are now asking important questions about these programs.

So, where do I stand? I tend to have a different view of the Constitution than most - I don't think there is a right to privacy in the Constitution.  The Constitution's framing is all about who has what power, rather than who gets to find out who's doing what.  To that end, I think the Constitution grants individuals the right of self-sovereignty - the right to speak their minds, practice their own religion, write blogs and newspapers, be secure in their bodies, homes and belongings, and be free from interference unless the government has a good cause.  And in that context, what the NSA's collection of metadata from cell phones is important, but ultimately not interfering with people's lives.   

Where I do have a problem is with the collection of interpersonal communications on what appears to be a massive level.  Not because a lot of that information is secret - after all, the whole point of this blog, my Facebook account, and my Twitter feed is to broadcast my life - but rather, because, as an attorney, I have a duty to keep my communications with clients secret.  If the NSA is reading my emails, then how can I claim these emails are privileged communications?  Unfortunately, its a grey area, and I'm concerned.

Of equal importance is how the data is used.  What if the NSA, looking for terrorists, discovers a medical marijuana ring, or (much, much, more likely) a NCAA Tourney pool?  In either instance, the NSA would receive evidence of a federal crimes. Or, what if the NSA was able to determine who belongs to the Republican Party or the Democratic Party?  Could an Administration use this information to maintain power?  Um, probably.  

So there needs to be a discussion and some clear ground rules as far as what the data can and can't be used for.  Ideally, it's used only when someone is planning to attack U.S. civilians, and otherwise destroyed.  Certainly, this kind of information is important, and might've prevented 9-11, but as I said, I'm concerned, but I'm also glad we are having the discussion.

Thursday, May 16, 2013

Random Thoughts Blogging (Amy's Baking Co, Benghazi and More)

In the effort to unleash a few thoughts rattling through my head in the past few days, I thought it was high time to do a random thoughts post wherein I write about a few subjects instead my usual one long post.  So here goes:

Epic Internet Fail: In case you missed it, Amy's Baking Company had a few issues lately.  Hit the link and you will see what I can only call an epic public relations disaster.  After having Gordon Ramsey walk out on them during Kitchen Nightmares, the owners of said bakery went apparently went full-on crazy on their Facebook page, insulting customers and telling the kids at Reddit to bring it on.  I would link to one article, but honestly, the whole thing was crazy, and you can see the Google results for yourself. Now, the couple is saying they were hacked and did not go totally apeshit on their Facebook page.  I don't buy it, mostly because the couple has a history of going apeshit on Yelp reviewers who post bad reviews.

While this crazy episode continues, I should note that dealing with Yelpers through intimidation, or anger is definitely the wrong way to go.  A quick anecdote: about a year and a half ago, I had a cleaning service clean my apartment upon my moving out.  I found the service through Yelp, and it had 5 stars.  I paid $200 in cash to the service, and  received what I believed (and still believe) was substandard cleaning.  So, I wrote a review on Yelp detailing my issues with the company.  The head of the company responded by saying I was a liar, etc., and asked to "meet me in person."  This too was the wrong approach.  Instead, the right approach would have been to calmly explain his side of the story, and perhaps offer me a minor discount on a future cleaning.  Even if I didn't want the discount, other customers would see that he was reasonable.

Look, not everyone likes every product the same way.  We have different tastes in food, clothing, cars, etc.  That's why in a market economy there are different products to use.  So, not everyone will like your product, and some will express their opinion.  What the business owner has to do is make sure in that moment that he/she doesn't look like the asshole.

Benghazi: A few days ago, I tweeted that I didn't understand the whole hubbub about Benghazi.  Yes, there was an attack which killed four Americans.  The FBI investigated, and are still looking for the guys who did it.  Terrible stuff.  But I never understood the apparent "cover-up" involved with Benghazi.  I guess the argument was that the White House lied about the attacks immediately after the assault to make it seem less like a terrorist attack, and more like a spontaneous action.

Here's the problem with that argument: 1) a terrorist attack is an attack made on civilians to incite terror.  Attacking an embassy to damage American intelligence in the area is an act of war, not terrorism; 2) Nobody expects the first, second, or third reports out of any tragedy to be accurate, because nobody knows anything; 3) the thing worth covering up WAS THE ATTACK AND THE FOUR DEATHS, not whether the attack was "an act of terror" or a "terrorist act."  By the way, the recently released emails back up point number 2, as it indicates that the CIA, the Department of State and the White House were still trying to figure out what was going on.

The IRS Curfluffle: So, the IRS' Cincinnati office was targeting conservative and Tea Party groups in 2011.  The whole "scandal" reminds me of what a college professor once told us - the one thing that drives Presidents crazy is when a civil servant does something stupid that ends up biting the President in the ass.  This scandal is exactly that - these IRS employees are pretty far down on the totem pole - and the President can't fire them directly (normally a good thing, but a bad thing here).  The only guy he could fire, the Acting Director, actually was cleaning up the mess left by President Bush's appointee.  As I noted in a tweet that the U-T published (to my great ambivalence), this had the makings of a real scandal when the news first broke.  Now it doesn't.


Friday, May 10, 2013

How to Lose Friends and Alienate People (San Diego Labor Council style)

For my friends in places other than San Diego, I am sad to say that I am writing again about the San Diego City Council District 4 Special Election.  Sorry.  I promise that I'll go back to writing about other topics soon - I have a few thoughts on Benghazi coming up - but with the election coming up, I thought I'd mention this article in the San Diego Union-Tribune. . . .yes, its owner does insist on people calling him Papa. . . .yes, its as creepy as it sounds. . . .and, yes, it does believe that Playboy naming its playmate of the year is "breaking news" - but that's besides the point.  What is interesting is who's spending what.

In this race there are essentially four major players - Myrtle Cole, Dwayne Crenshaw (my friend), the San Diego Labor Council (known locally as "Labor"for short), and the Tea Party/Downtown Special Interests types.  Cole and Dwayne are the candidates, and find themselves in the midst of what is essentially a proxy war between Labor and Downtown.  As I wrote in an earlier response to an article in Voice of San Diego,* Labor is trying to buy the election, and Downtown is trying to fuck with Labor because it can.

The fundraising numbers that came out today bear out a lot of what I have said.  Dwayne, who has a great deal of support in the District, doubled Cole's fundraising numbers.  This is despite the fact that Cole has the explicit backing of Labor, and of the entire Democratic Party establishment, from the mayor on down.

On the independent expenditure side, the Tea Party/Downtown establishment types have spent $60,000, more or less, on the race.  In the meanwhile, Labor has spent $200,000 so far.  Labor HAS SPENT $200,000 SO FAR.  In a voter universe of around 20,000 people.  Against a guy who the local liberal alternative weekly, San Diego City Beat, deems to be the true progressive in the race.  In other words, Labor has really fucked up here.

Let's take a look at what Labor had going for it going into this race shall we: (1) District 4 is, and has always been, a strong Democratic District; (2) With a few notable exceptions, the candidates were Democrats, and generally pro-Labor; (3) The two candidates in the run-off were definitely pro-Labor.
So, what if Labor had, after spending $70,000 to get Cole into the run-off, decided to back off the race, and let Cole and Crenshaw battle it out on their own? Their best case scenario would have been Cole winning, with their worst case scenario would be Dwayne winning - but since Labor backed off after the primary, he isn't pissed at Labor, and goes back to his natural constituency (progressive Democrats).  This race should have been the definition of a win-win.

But of course, Labor didn't do that.  Instead, it got rope-a-doped into believing that Downtown actually wanted Dwayne in office, and spent over $200,000.  Much of that spending has been on negative mailers. And some of which (as I noted in a previous post) attack Dwayne receiving money as a result of what appears to be a meritorious discrimination lawsuit, equating the lawsuit with "taking money from the community," and mocking what was one of Dwayne's most painful personal experiences.  Do you think that, post-election, Dwayne is going to be chummy with Labor?  Do you think that the San Diego LGBT community, which has seen one of its leaders ravaged unfairly, are going to be as supportive of Labor in the upcoming years?

So here we are.  Instead of having options, Labor is painted into a corner.  It has to, HAS TO, spend big to destroy Dwayne.  In the meantime, Labor is slowly poisoning its connections with the LGBT community.  Oh, and because Labor has relatively big pockets, and don't shift their money around like most PAC's, Dwayne wouldn't be entirely crazy to sue for defamation, especially given the conservative bent of the local judiciary.  This ramifications of this race could hang around Labor's neck for years.

Again, I can't stress enough how badly Labor has fucked up here.  They should never have been in this position. EVER.  And ultimately, that's the strangest part of this race.  I know the guys at the Labor Council. I've worked with some of them back in my political days.  Heck, one of the guys at the Labor Council was Dwayne's campaign manager not so long ago.  Labor's head, Lorena Gonzalez, who's now running for the State Assembly, is a goddamn political superstar who should be Speaker of the Assembly any day now.**  But this is just fucked up, and I have to think someone over at Labor has to wonder how they got here.

*Damn, I still need to give Voice of San Diego money.

**Lorena, if you're reading this, and I don't think you are, this is your floor.  Anything less would be a disappointment.

Tuesday, April 30, 2013

Um Guys. . .Seriously. . .What Are You Thinking?

I guess all the hit pieces run by the Lincoln Club hit a nerve.  The Labor Council sent out a hit piece on Dwayne Crenshaw in District 4 (see my last few post for the background), attacking Dwayne for his tenure at the Coalition of Neighborhood Councils (hereinafter CNC), most likely referencing this article by Voice of San Diego.*

So, let's go to the facts as we know them.  Dwayne worked for the CNC as the Executive Director.  When he started, the CNC had 1 part-time employee and an operating budget of less than $50,000.  Under his leadership, the CNC employed 50 people full-time, and had an operating budget of over $1.5 million.  After complaints by several members community regarding Dwayne's sexual orientation apparently, the CNC fired Dwayne, and he promptly sued the CNC for wrongful termination.** Thereafter, the parties settled, Dwayne went to law school without the aid of student loans, didn't work for around 3 years, and was able to loan his campaign $20,000.  Oh, and CNC completely collapsed after Dwayne left.

In the hit piece, the Labor Council claims that Dwayne was fired for "mismanagement of funds."  This is a lie.  The CNC never stated any reason for Dwayne's firing whatsoever.***  The only explanation for Dwayne's firing comes from Dwayne himself, and he claimed he was fired for being gay.  Oh, and he received an unspecified sum as a result of the lawsuit.  It also claims that he "took money from the community," because he received money from the lawsuit, compensating him for lost wages as a result of being fired for being gay. Classy huh?

As with earlier efforts to equate generally bad politicking with homophobia, this particular hit piece is pretty tone-deaf, and maybe a bit homophobic itself.  Was Dwayne Crenshaw supposed to accept that he was fired from the CNC because he was gay?  Was he not supposed to fight discrimination?  More importantly, is the Labor Council really attacking Dwayne because he availed himself of the legal process, and well, won?  I guess the message the Labor Council wants to send to members of the community is that racism and homophobia are no big deal, and that anyone who stands up for himself or herself is a traitor to the community.  Quite frankly, that's a pretty shitty thing to say, and violates every principle the Labor Council is supposed to stand for.

Here's the thing - I know these guys.  The Labor Council is lead by good people, who care about their community.  But this hit piece is completely ridiculous.  Again, not only is it lying about the facts, but it tells every gay kid that standing up for himself makes him a traitor to his community.  Seriously, guys, what the fuck?

* I seriously need to give those guys some money.

**A quick lawyerly note - there is no cause of action for wrongful termination in the State of California, as California is a right to work state.  There are causes of action for discrimination in termination, which is a nearly impossible claim to prove.  To win, Dwayne would have had to prove the motivation of the CNC was to fire him for being gay.  But I digress.

***Quick note - on Twitter, Lorena Gonzalez and Evan McLaughlin (who are both on leave with the Labor Council), defended the piece, stating that there were allegations that Dwayne had misappropriated funds, and had been sued for the misappropriation.  This is also false.  The CNC countersued Dwayne when he filed his discrimination suit, but never alleged misappropriation of funds.   If anyone at the CNC believed that Dwayne stole from the CNC, not alleging misappropriation of funds in a cross-complaint (which is constitutionally protected from defamation), is bad lawyering unless the CNC didn't believe Dwayne had misappropriated any funds.  The only thing Lorena could point to was a case against the CNC itself regarding a school lunch program, which the CNC successfully defended.  Even there, the issue wasn't so much misappropriation of funds, but rather, initially poor management of the program, which was corrected in the Court's view.

Friday, April 26, 2013

Is District 4 Bought and Paid For? (Local San Diego Post)

A recent article in San Diego's excellent online newspaper Voice of San Diego* recently had an article quoting local consultant Jennifer Tierney as saying that whoever wins in the San Diego City Council in District 4 will be bought.  Forgive me, but I had a few thoughts.

I think its half right. If you recall from my earlier post about the background of this race, there are two candidates in the race - Dwayne Crenshaw and Myrtle Cole.  Dwayne Crenshaw, again, is a good friend of mine.  Myrtle Cole is a former police officer for the local community college board, former campaign manager for Tony Young (the outgoing City Councilman for the area), and works for one of the labor unions.  Both Dwayne and Cole are Democrats with a long history in the Democratic Party.  And both are being backed by large independent expenditures - Cole is backed by the San Diego Labor Council (our local AFL-CIO affliate), and Dwayne is being backed by Republican groups such as the Lincoln Club.

But here's the thing - Dwayne isn't a Republican.  He's never been a Republican, and as an African American gay man, he probably never will be.  Not only that, but he is the Executive Director (on leave) of San Diego Pride, and works with the Innocence Project to get the wrongfully convicted out of prison.  When he ran for Assembly in 2000, NARAL and Planned Parenthood overwhelmingly endorsed him, and sent volunteers to work on the campaign.  This is not someone who is exactly close with the ultra conservative Lincoln Club.  And noticeably he has not accepted any campaign dollars from any conservative or Republican group.

Cole, on the other hand, is completely beholden to the Labor Council.  As she admits in the article, it was the Labor Council's spending (more than all the other candidates in the race combined) that pulled her into the run-off.  Her donations come as a result of the Labor Council's backing. The Democratic endorsements come as a result of the Labor Council's backing.  In the meantime, she has little support by the intelligentsia of the District.  So much so that five of the seven candidates in the primary have endorsed Dwayne.**  She could never even think of going against the Labor Council's wishes, even if those wishes are contrary to the needs of her folks in District 4.  Without Labor's support, her base of power completely drops out, and everyone knows this.

Again, the Lincoln Club isn't getting this with Dwayne at all.  He doesn't support their issues, or their philosophies of governance.  So why is the Lincoln Club supporting Dwayne?  For one reason, and one reason only - to fuck with Labor.  They can see that Cole is a weaker candidate, and are moving in for the kill.  Thus, the District 4 seat is half bought.

*I really need to buy a membership and support of Voice of San Diego.  If you live in San Diego, you should too.

**As Liam Dillon pointed out in a Tweet, of the seven primary candidates besides Dwayne and Cole, five have endorsed Dwayne, one has endorsed Cole, and one has not made an endorsement.  My apologies for the error, and like I said, those guys at Voice of San Diego are really thorough.  They deserve your money.

Wednesday, April 24, 2013

These Two Things Are Not the Same - Post on District 4

For those of you who follow me on Twitter (the feed is to the left, by the way), you may have noticed a few tweets last night with the hashtag #sameashomophobiarightevanandlucas.  But you may not have understood the context of the tweets.  So allow me to explain:

After the 2012 general election, San Diego City Councilman Tony Young resigned from office to pursue other interests.  And, as you might expect, there was a special election to replace Mr. Young.  The primary has taken place, and the general election is coming up.

There were a large number of participants in the primary election, but there are only two you need to worry about for this post - Dwayne Crenshaw and Myrtle Cole.  Dwayne is a good friend of mine, and I have supported him from the get-go, including donating to his campaign.  I also believe that Dwayne would be a great City Councilman - he has a record of economic development in this City Council District as a private citizen that most politicians would be proud of.  Myrtle Cole, I do not know, but she is backed by the Labor Council, who, in turn, secured her endorsement from the Democratic Party. Dwayne is also a Democrat, by the way.

The other thing to know is that this particular race takes place in San Diego's historically African-American District.  Ironically, African Americans aren't the largest ethnic group in this area - Latinos are more numerous - but it has historically been the seat of African American politics in San Diego.  Both Dwayne and Myrtle are African Americans.

It is also important to know that Dwayne Crenshaw is gay, and his coming out process was brutal. When running for the same City Council seat in 2004, he was outed publicly and was subject to vicious and homophobic attacks.  He left politics, and worked for a nonprofit called the Coalition of Neighborhood Councils (CDC), which employed 1 part-time employee when he arrived, and employed over 50 full-time employees when he was fired for being gay (allegedly).  The whole process left Dwayne bruised and battered.  Oh, and the CDC collapsed when Dwayne left.

Anyway, back to the story - a few days before the Primary, the San Diego Voice & Viewpoint, the biggest and most influential African American newspaper in San Diego, who's editor regularly appears on radio and other local media outlets, endorsed a third candidate in this election.  That's not very important.  What is important is that the newspaper specifically rejected Dwayne Crenshaw because he is gay.  Not because of his record, but because he is gay.

Shortly thereafter, there were calls from various progressive groups to condemn the Voice & Viewpoint for this editorial.  48 hours later, Myrtle Cole did so.  Now, keep in mind, she wasn't endorsed by the Voice & Viewpoint either.  She had no dog in the fight, and would have won brownie points by denouncing the rampant homophobia right away.  But instead she waited.  Mostly, I think she waited because she didn't think about it.  Anyway, she got on board, and finally denounced the Voice & Viewpoint.

Now, moving forward to yesterday, there have apparently been some hit pieces distributed in the District by San Diego's Lincoln Club - basically the well-oiled, well-financed, Republican/conservative group here in San Diego.  From what I've seen, these hit pieces are a bit ridiculous - alleging Cole just moved into the District from Arizona (she is from Arizona, but moved to San Diego years ago; she moved into the District recently), that she was fined $10,000 for ethics violations (she was not, a campaign she worked for was, but after she left), and there are a few other iffy claims in the mailer.

Thus began a twitter war - two members of the Labor Council's political arm - Evan McLaughlin and Lucas O'Connor both tweeting that if given the whole blow-up over the Voice & Viewpoint, surely Dwayne would denounce the Lincoln Club's slimy hit pieces against Cole.

And this is where I got pissed off.  There is simply no equivalence between what the Voice & Viewpoint did and what the Lincoln Club has done. Yes, the Lincoln Club are slimy fucks.  Yes, they are lying in a hit piece against Cole. This is politics, and sadly, it happens all the time.  That's why politicians have bad names, and why most people don't read mail hit pieces - they throw them out almost immediately.  What the Voice & Viewpoint did is different.

The Voice & Viewpoint did not send out obvious advertising, it wrote an editorial on the front page of the paper.  As I said earlier, John Warren is a public figure - and in some circles, he is the voice of San Diego's African American community.  So, for John Warren to reject a candidate because he is gay is a statement that San Diego's African American community rejects everyone in the LGBTQ community.  Because a "confessedly homosexual lifestyle" is wrong in his eyes.

Think about a young teenager in that community hearing that message of hate.  We know what the effects are - Dan Savage started a YouTube channel called "It Gets Better" specifically to convince LGBTQ teens to not kill themselves for being gay.  We have seen gay men targeted for beatings because they are gay.  The Stonewall Patrol in Hillcrest was formed specifically to prevent such attacks on gay men that were occurring on a way too-regular basis.  The editorial didn't just attack Dwayne for being gay, it attacked the entire LGBTQ community.  That's why it had to be denounced immediately.

By contrast, a hit piece filled with lies, against a single person, written by a Republican Party group in a predominately Democratic District is hardly equivalent.  Is the Lincoln Club filled with slimy fucks who will lie at the drop of a hat?  Of course.  But no one is going to kill themselves over the message. When someone tries to draw a parallel to what happened with the Voice & Viewpoint, I get pissed off. And hence, the twitter war.