February 2008 Archives

February 22, 2008

Don't Worry About Privacy -- You Don't Have Any

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Much to-do is being made of the Bush administration's push for legislative authority under a recently enacted provision of the 1978  Foreign Intelligence Surveillance Act (FISA), known as the Protect America Act (PAA). Under FISA, he must obtain a warrant (one which can be obtained up to 72 hours after surveillance has begun), whereas under the PAA, the president has the authority to eavesdrop on terrorist conversations without a warrant or court permission. While the PAA has only been on the books for approximately six months, the controversy is not over the president's new authority to spy on anyone without accountability -- most senators and many members of congress seem willing to grant this executive request. The real hang-up is whether the telecom industry can be held liable for past cooperation in the government's warrantless surveillance -- the very thing FISA was enacted to combat. However, for reasons of my own -- soon to be explained -- I think the very idea that we have privacy that needs protection is an urban myth, more or less.

To begin, there is the Patriot Act, which made vast inroads to whatever privacy we thought we had. Also, dozens of U.S. Supreme Court decisions (since the Warren Court of the sixties) have been chipping away Fourth Amendment protections in the criminal context, mostly because the justices are loath to let suspected criminals go free because of an illegal search. There are exceptions, of course, but the overall effect of recent Supreme Court decisions has been to vastly expand the circumstances in which the police may search without a warrant.

Whatever the state of the law in our criminal courts, the federal executive branch will use whatever technology is available to ferret out the "enemies of the state," with or without judicial permission. Our national budget allots many billions of dollars to the National Security Agency (NSA), the agency responsible for monitoring the electro-magnetic spectrum, and we the people haven't a clue as to how the money is spent under what's known in Washington as a "black" budget. We can rest assured, however, that the NSA is hard at work to make sure it has access to every communication that occurs in or out of the U.S, save only those disseminated by carrier pigeons (and who really knows about them).

By their nature, civil libertarians oppose the proposition that the executive branch can, without a warrant, legally intercept any and all communications -- domestic and foreign -- if it (in its executive wisdom) thinks terrorists are somehow in the mix. Unlike the FISA, which required judicial approval of wiretaps, the new version of the PAA advanced by the senate, and sponsored by Senator Jay Rockefeller,  makes the government the sole arbiter of whether any particular communication qualifies for warrantless surveillance. This, in the opinion of the ACLU and other similarly-inclined organizations, clearly tramples on the checks and balances inherent in our constitutional form of government. And in doing so, the legislation obliterates our Fourth Amendment protection against unlawful search and seizure. Who can argue with that?

Not me. But I don't much give a damn. Most of my adult life I've assumed that the government is listening in to my calls and emails. And why not? In the 1960s, we were convinced that the FBI or the local cops had taps on our phones, tape recorders in our meetings, and cameras trained on our protests.

Whether this was because of our political activities or illegal drug transactions (consisting primarily of buying and selling bad Mexican marijuana in matchboxes), our sense of self-importance led us to believe we were the center of a law enforcement campaign to put us away for years if not decades. When using the phone we were very careful to speak in what we hoped was undecipherable code, whether about a particular drug transaction or experience, or about plans to engage in civil disobedience. We never doubted that eager law enforcement ears were just waiting for the right words to launch a bust.

Now, of course, we are much wiser. We know there are only so many hours in the day and the government can only listen to so many conversations in real time -- and that ours were and are probably not among them. But the point is, we always assumed we had no privacy when using telephonic communications or engaged in civil rights activity or protests against the Vietnam war. This wasn't paranoia, but rather an understanding that the government had the capacity to listen in, and watch, if it wanted to. And we were pretty sure it did.

Also, back in the 60s, we always assumed the government could get a warrant if it wanted one, and that the only protections we had under the Constitution were if they busted us and we could prove in court that they somehow screwed up the warrant process. As a latter day criminal defense attorney, I'm of the opinion that the warrant requirement didn't (and doesn't) provide much protection. There are numerous loopholes in the warrant requirement itself, and even when one is technically required under current case law, most judges rubber-stamp the applications submitted by the police, and most trial judges uphold warrants issued by their brethren no matter how flimsy the factual basis put forth in the supporting affidavits. There are exceptions, of course, but as the old bromide goes, the exception proves the rule.

There also have been rare instances when the ACLU successfully sued transgressing government agencies for Fourth Amendment violations. For the most part, however, there has been little or no accountability for illegal surveillance that does happen to come to light. The only real accountability for a Big Brother administration is regime change, and even then, the new government will be just as likely to spy on its (or America's) perceived enemies as the last regime. My reading of history is that the level of government surveillance never goes down regardless of who is in power.

In a democracy we theoretically could bring the government to heel on these privacy concerns if, as a people, we were more concerned about privacy. But the fact is, we don't really hold privacy in high regard no matter how we respond to the polls. We are, in fact, addicted to gossip (something common to the entire human race and thought to be the reason we have speech in the first place), and a large part of our entertainment is based on privacy violations of one type of another. It would be nice if we could distinguish social privacy from privacy against government intrusions, but that doesn't seem likely. Our lives are laid bare to the world, and we rather get off on it.

In summary, since we don't have much if any privacy in the first place, we shouldn't worry about what powers the government has under the FISA act, or its amendments and provisions. If you want your communications to remain confidential, stay away from the telephone or figure out a code that is unlikely to trigger the government computers to alert their minders that the conversation warrants further processing. The government has been Big Brother for a long time and, as in 1984, little brother ain't coming back.

February 20, 2008

Launch of New Website by HALT Featuring Works of Fred Rodell

[Here is the text of an email circulated by HALT, the nation's leading law reform organization, announcing a new website and blog featuring the works of Fred Rodell, a Yale Professor who debunked the legal profession and accompanying myths.]

Sixty-nine years ago, a young Yale law professor rocked the legal establishment with a scathing indictment of the American civil justice system entitled Woe unto You, Lawyers! Almost overnight, Fred Rodell became the nation's leading debunker of legal myths, and the target of untold ire from thin-skinned lawyers. And his provocative observations are as accurate today as they were seven decades ago. Here is just a sampling.

Rodell's 1936 article Goodbye to Law Reviews opens by explaining: "There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground." The article proceeds to take on the entire profession: "[I]t is pretty hard to find a group less concerned with serving society and more concerned with serving themselves than the lawyers."

In Woe, Rodell's critique is cultural: "In TRIBAL TIMES, there were the medicine-men. In the Middle Ages, there were the priests. Today there are the lawyers." But the effect of the mystifying process is to exclude ordinary people from the legal process: "[L]aw deals almost exclusively with the ordinary facts and occurrences of everyday business and government and living. But it deals with them in a jargon which completely baffles and befoozles the ordinary literate man."

Finally, Rodell points out the basic hypocrisy of the Law: "The last thing any court will ever admit, even when it is being quite practical about what it decides, is that practical considerations have anything to do with the decision."

As a leader in the legal realist movement, Fred Rodell stuck to his guns for the next four decades (including a stint on HALT's Advisory Board), arguing that we should simplify, demystify and open up our civil justice system. Rodell was a true pioneer of the legal reform movement, one of the first to identify the structural failures of our civil justice system and to stridently challenge the legal establishment. But since his death in 1980, his thinking has not received the serious consideration that it deserves, and his key writings have disappeared from print.

That is why we at HALT were so excited to begin working with San Francisco legal reform advocate Alex Kline and Fred Rodell's family to revive these visionary legal reform lessons on the Internet. In addition to introducing Rodell to a new generation, we want to provide a meeting place for those who share an appreciation of his ideals, criticisms and reform objectives. We want to provide a forum where they can put their heads together and work to implement his ideas in practical ways. Rodell taught at Yale Law for over forty years, and we hope that his students will find their way to this site and use it as a place to re-connect, brainstorm, and formulate action plans to bring about the changes he advocated.

Today we are launching www.FredRodell.com to make Woe and Goodbye available to all, along with TheLawBlog.FredRodell.com, a forum for renewed critique, debate and thinking.

Let the fun begin.

James C. Turner
Executive Director, HALT, Inc.

February 19, 2008

Project Lifeline: Too Little Too Late

On February 12, 2008, a consortium of mortgage lenders trotted out a voluntary program purportedly designed to help prevent foreclosures. Under this program, termed Project Lifeline, lenders will give homeowners who are still in their homes some additional time to work things out before foreclosure proceedings are initiated.

Here's how it works. If you are 90 or more days delinquent on your payments, and foreclosure or bankruptcy proceedings haven't yet been started, the lender will give you a 30-day written notice prior to initiating foreclosure proceedings. The notice will invite you to contact the company servicing the mortgage for a possible resolution. If agreement isn't reached within that 30-day period, the foreclosure can begin.

On the surface, this looks like a good thing. Homeowners who fall behind sometimes get fatalistic and don't bother to attempt a resolution. This 30-day notice may stimulate you to give it one more try. It also gives you an extra month without paying if you are ultimately going to lose the home. Every month you can live in a home "rent free" is an opportunity to put some money aside for moving expenses and other costs associated with finding new shelter.

The downside of this new plan? If you are busy negotiating with the lender and the negotiations don't produce anything useful, you may have foregone a more appropriate action for your individual circumstances, such as filing for bankruptcy, passing up an opportunity for new shelter, or even hunting for refinancing on your own.

Don't let time run out. Although the major lenders may say they want to work things out with their borrowers, the truth is that many homeowners have been forced into a kind of rope-a-dope (a la Muhammad Ali) where the lender implied that relief was just around the corner, only to deliver a knockout punch by cutting off communications on the eve of the foreclosure sale. This 30-day notice appears to be more of the same, rather than a new policy that might substantially cut down on foreclosures.

Project Lifeline assumes you can trust the folks throwing the rope, even thought they're the same folks who put you into the water in the first place.

When negotiating with a bank or other entity to avoid foreclosure, it's important to remember that you're most likely not negotiating with the decision-maker -- the owner of the mortgage. An important component of the housing bubble is that mortgages were packaged for easy sale on Wall Street and in international markets. To give you true relief with a substantially reduced interest rate or adding your missed payments to the end of the mortgage, the mortgage owner has to give permission. An investor in China or Germany may not be as accommodating as their American counterparts would like them to be, and while it may make sense for a lender to avoid foreclosing, the relationship between the lender and its investors may favor the foreclosure.

So, if you get one of the 30-day notices, feel free to explore possible workouts, but keep an eye on the clock, and if you are in one of the many states that provides very little advance notice for a foreclosure, have a solid Plan B ready and waiting.

February 17, 2008

Routine Legal Services: The Internet is Fast Replacing Lawyers

[This article was written by guest blogger Ralph Warner, founder and CEO of Nolo. He is also the author of the blogs Retire Happy and The Legal Humor Blog.]

In JFK's America, if you had a legal problem, you either hired a lawyer or went without help. Because the majority of middle-class people couldn't afford lawyers' pricey hourly rates, for the most part, lawyers represented the wealthy, the upper-middle class, and business interests. Things began to change in the mid-1960s when, as part of Lyndon Johnson's War on Poverty, federally funded legal services (legal aid) programs were established for the very poor. Now it was just the 100 million people in the middle who were legally disenfranchised. In the early 1970s, this huge unmet legal need helped produce companies like Nolo -- publishers who produced step-by-step workbooks designed to allow self-helpers to accomplish routine legal tasks at a fraction of the fees charged by lawyers. Especially in California and other states populous enough to support state-specific publishing ventures, the educated and energetic could now affordably do their own divorces, guardianships, deeds, wills, and even form a corporation or a non-profit.

But self-help law books were far from a comprehensive solution to America's legal access gap. They didn't hold hands, give fact-specific advice, and were difficult to use for people without good language and form-drafting skills. Part of this self-help law gap was filled by independent paralegals (legal document preparers). These non-lawyer entrepreneurs typically rely on self-help law books like Nolo's to help their customers prepare paperwork for routine legal actions for about 25% of the fee charged by most lawyers. But, because of the aggressive turf-protection tactics of the legal profession (enforcing archaic statutes that make it illegal without a license, as one example), non-lawyer providers have been kept out of many markets, and forced to operate on the margins in others. The result was that even ten years ago millions of Americans still had little, or at best spotty, access to affordable legal services.

Enter software.

Starting with tax preparation and will-making products published by companies such as Intuit, H&R Block, and Nolo, software successfully married legal expert systems to the personal computer. By first prompting the user to answer basic screening questions (Are you married?, Do you have minor children?, etc.) and then following up with queries that met the user's situation, software could both greatly simplify and expedite routine legal paperwork, and then print out the result, ready to file.

More recently, legal software has become widely available online. Now companies with national reach, such as Legal Zoom, Nolo and The Company Corporation, offer to help consumers complete an extensive menu of legal tasks, such as making a will or living trust, filing for divorce, or forming a corporation or LLC for far less than what lawyers typically charge. And when you combine low prices with the fact that web-based software is increasingly well-designed, online help is excellent, and trained back-office people are standing by to help with technical glitches, it's easy to see why the online law business is taking off -- so much so that my educated guess is that upwards of 250,000 legal tasks will be accomplished online this year. And assuming that, as compared to hiring a lawyer, the consumer saves $1,000 per transaction, this amounts to consumer savings of $250 million.

And, interestingly, the migration of basic legal tasks from lawyers to internet-based corporations is still at an early stage. Provisional patents, trademarks, copyrights, deeds, living trusts, and divorces are just starting to be offered by affordable online services -- and many more such as bankruptcy, and many types of business contracts are in the pipeline, something which almost guarantees that online legal providers will experience at least a decade of rapid growth in the process of becoming a billion-dollar industry.

But what of lawyers who offer personal legal services? Are they about to become an endangered species? Hardly. In large part that's because, as discussed, since lawyers never found a way to affordably meet the needs of America's middle class, it wasn't their business to lose. Or, put another way, millions of Americans can now afford to draft legal documents who even 40 years ago would have gone without. And then there are two other key lawyer-friendly trends. First, the world of American business has become ever more rule-bound. 50 years ago, your average Main Street business, Mom & Pop real estate investor, or small non-profit could get by with occasional legal advice. Today, the plethora of employment, intellectual property, landlord-tenant, and other laws mean they are all but tethered to a lawyer.

Second, the increasing size and affluence of the upper-middle and wealthy classes in America has meant that far more people can afford the hand-holding and customized advice lawyers offer. The result is that large numbers of people who learn about their legal task from a book, or even do basic drafting online, also consult a lawyer. (Nolo has designed its lawyer directory specifically to meet this need.) So, especially as lawyers learn to charge fixed fees for the review of documents created online, internet legal providers and lawyers may yet learn to happily co-exist.