Wednesday, April 30, 2014

Crime, Clemency, and Constitutional Corrective Action

“[T]he world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

--Thomas Paine, Common Sense, 1776

Last week, many criminal justice advocates rejoiced at the Department of Justice’s announcement of a broad clemency initiative targeting “nonviolent felons who have served at least 10 years in prison and who would have received significantly lower prison terms if convicted under today’s more lenient sentencing laws.”

Many of the potential beneficiaries of the program were convicted of drug crimes between 1980-2010, during which time there only significantly more draconian penalties across the board and gross disparities in sentences based on certain types of drugs (powder v. crack cocaine being the most infamous).

As the Times notes, while Congress reduced (but did not eliminate) the disparity by passing the Fair Sentencing Act (FSA) in 2010, it has not chosen to apply the new sentences retroactively (though the Supreme Court did rule, 5-4, that the lower minimums apply to people who committed crimes prior to the law being enacted, but who were sentenced after the bill became a law—see: Dorsey v. United States, 567 U.S. ___ (2012)).

The decision not to apply the Fair Sentencing Act retroactively was not made without significant consideration by the Legislative branch. Indeed, in the wake of the FSA’s passage, Senators Dick Durbin (D-IL) and Mike Lee (R-UT) proposed broader retroactively in the “Smarter Sentencing Act”, which would allow individuals to petition the courts for sentence reductions commensurate with the FSA.

While the bill has yet to receive a vote, the Senate Judiciary Committee approved the Act by a bipartisan vote of 13-5 in January 2014. It is a good bill—a critical second act to the FSA—and Congress should pass it without delay.

But where does that leave the President’s new clemency system? Is it an appropriate tool to use to modify potentially thousands of sentences in a way that Congress specifically rejected when it passed the FSA only 4 years ago?

Linda Greenhouse, former SCOTUS scribe for the Times and current Journalist in Residence and Lecturer at Yale, wrote in January, “Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.”

I completely agree and that’s a darn good argument to make to urge House and Senate members to pass the Smarter Sentencing Act. It is, however, not such a good argument for the unilateral imposition of what one unitary Executive deems “rational” (indeed, logical as you may be, dear reader, it stands to reason that the officeholder at 1600 Pennsylvania Avenue is quite likely to disagree with your sense of rationality over time).

Indeed, the use of the unilateral clemency power is a far cry from supporting legislative changes to criminal laws, sentencing guidelines, or policies related to the use of prosecutorial discretion. In all three of those instances, the Executive branch is either using authority specifically granted to it and it alone under the Constitution, or is seeking to persuade another branch to support a specific policy recommendation.

The clemency power, while constitutionally authorized, has not traditionally been applied to situations in which Congress or the Courts could act—through their basic structure—to cure the underlying injustice.

As Chief Justice William Rehnquist declared in Herrera v. Collins, 506 U.S. 390 (1993), “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” (emphasis added).

Like presidential pardons, which can and often are abused for political gain, a broad grant of clemency by the President, particularly where the underlying effort conflicts with recent Congressional action (see Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)), is a tool that lends itself to overreach, particularly in lame duck terms.

Thus, sympathetic as I am to the urgent injustice the President is seeking to address, I cannot support a blanket use of the clemency power to address such an injustice (just as I cannot accept broad based commutations of death row inmates by governors despite my personal view that the death penalty is heinous and unconstitutional in all cases).

Instead, we must actively persuade our fellow citizens and our elected representatives to pass laws to end the era of irrational drug penalties and, if they choose not to do so, we must punish them at the ballot box. That’s the way democracy functions—not by fiat or force, but by politics and persuasion.

Tuesday, April 29, 2014

SCOTUSWatch: The iPhone Meets the Fourth Amendment

The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate.’”

-- Justice Antonin Scalia, Kyllo v. United States, 533 U.S. 27 (2001)

This morning, the Supreme Court will hear argument in United States v. Wurie and Riley v. California, two cases concerning the right of police officers to search cell phones incident to an arrest without a warrant.

These are just the latest in a long line of cases in which the Court has had to try to graft the text of the Fourth Amendment’s prohibition against unreasonable searches and seizures onto modern technology.

Since 2001, the Court has ruled that placing a GPS device on an individual’s car constitutes a search (United States v. Jones, 132 S. Ct. 945 (2012)), the warrantless use of a thermal device to scan the inside of a home for evidence of heat lamps that could be used to grow marijuana violates the Fourth Amendment (Kyllo), and, my personal favorite, that a California law limiting the sale of violent video games to minors violated the First Amendment (Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)).

Brown is noteworthy not just for the Court’s strong affirmation of the First Amendment, but also for revealing the limits of the Justices’ understanding of modern technology. During oral argument Justice Elena Kagan stated, “A reasonable jury could find that Mortal Kombat -- which is, you know, an iconic game, which I'm sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing,” at which point Justice Scalia interjected, to the laughter of the courtroom, “I don't know what she's talking about.”

Suffice to say, every Supreme Court justice has a cell phone (whether they have smart phones is another story—the Justices are famous for their paper-based inter-chambers communication), and therefore the issues at stake in the Court today should be at least somewhat familiar.

What are those issues precisely? From my perspective, there are two major questions posed by these cases: (1) What types of content on a phone carry a reasonable expectation of privacy; and (2) How (if at all) does the advent of “cloud” based storage change the calculus for police who seek to preserve evidence incident to an arrest?

First, as NYCLU Associate Legal Director Chris Dunn wrote in a column in the New York Law Journal in February, our phones include a vast amount of information, from emails, photographs, and social media postings to browsing histories, financial data, and GPS-based location tracking.

Some of these “possessions”—like financial records and health information—would seem to fall under the most stringent privacy protection, while others, particularly social media postings (which almost by definition are meant for public display/dissemination), seem to lack the type of reasonable expectation of privacy usually linked with the Fourth Amendment.

Indeed, given that law enforcement agencies already patrol Facebook/Twitter/etc for leads—particularly regarding youth gangs—it would seem odd to
 not permit cops to examine public social media postings after an arrest, even without a warrant.

On the other hand, why not get a warrant in these situations? For one, a legitimate fear that has long been cited for the need to quickly perform a search incident to an arrest is the concern that evidence could be tampered with, spoiled, or otherwise rendered useless during the booking process. Today, digital “evidence” is uniquely capable of being destroyed from anywhere at anytime by anyone, since a friend could theoretically log in to someone's account and delete potentially incriminating material. That concern creates at least some urgency to a review.

While the First Circuit insisted in Wurie that officers could remove the phone battery, place the phone in a available bag that blocks incoming signals, or copy the phone’s contents without examining them before obtaining a warrant, the fact remains that the evidence accessible via the phone often isn’t on the physical phone. Even the New York Times editorial board fell into this trap, insisting that “any evidence on the phone can be preserved by using special devices to prevent remote deletion of the data.” That’s not true now and is far from a guarantee in the future.

Finding a way to preserve potential evidence stored in the cloud within the framework of the warrant system is a challenge, but not an impossible one. Warrant procedures would need to be streamlined—such that if probable cause exists that evidence of a crime is accessible via the phone, a warrant could be issued in something close to real time.

Establishing such a system is important because the Times is right on the merits—cell phones today are not the 5-pound blocks of Wall Street fame, but are instead repositories of our most intimate associations, private thoughts, and day-to-day movements. For originalists, this means viewing phones as diaries, bank ledgers, and general store receipts rolled into one—precisely the type of “papers and effects” that the Fourth Amendment was designed to protect.

Monday, April 28, 2014

This Land is Whose Land? From NYCHA Housing to Nevada’s Ranches

Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn't say nothing —
This land was made for you and me.

-- Woody Guthrie, “This Land is Your Land,” 1940

In the summer of 2000, our family rent-a-car emerged from the Grand Tetons and traveled down National Highway 26 into the town of Jackson, Wyoming. As we sped along (the urgent need for pancakes and flat, clear terrain propelling us forward at speeds that would be reckless at best on the I-95 corridor), I stared out the window and watched the cows chewing their weight in grass on federal property (about half of Wyoming is owned by the U.S. Government—see map, below).

Curious about the agreements that allowed for such private use of public property, I asked our waiter at the local diner who owned the cows and how much he/she paid to have them grave on “federal property.” The waiter, already put off perhaps by a New Englander wearing his ever-present Sox jacket, set his pen and paper on the table, looked at me, and declared simply, “That’s our land.”

I was firmly committed to putting pancakes over politics, so I demurred further argument, certain that whoever the “our” was didn’t include me.

This month, a dispute over federal grazing fees charged to Western ranchers once again erupted, with armed civilians taking up positions against Bureau of Land Management rangers who, pursuant to a court order, attempted to confiscate 500 cattle owned by Cliven Bundy, who has been illegally grazing his herd on public land since 1993.

Senate Majority Leader Harry Reid (D-NV) responded by calling the armed vigilantes “domestic terrorists”, while Nevada’s junior Senator, Dean Heller (R), called Bundy’s supporters “patriots.”

Not only is there no agreement on what taking up arms against the federal enforcement of a court order should be called, there isn’t even consensus on the facts underlying the case. Washington Post columnist Marc Theissen decried Reid’s “domestic terrorist” comment, stating that “defending your property against a paramilitary force of armed federal agents is not the equivalent of blowing up a federal building or sending letter bombs” (emphasis added).

Indeed, while Bundy’s abhorrent comments on race and his unwillingness to pay below-market grazing fees to the Federal Government have given him 15 minutes in the national spotlight, what his case and the story of the diner in Jackson are really about is the very nature of property rights—not just in the American West, but across the country.

Indeed, I’ve spent the last week pondering Theissen’s remark, trying to come up with an East Coast equivalent to understand the “ownership” Bundy and people like him feel over land whose title is in our collective name. As it turns out, we have a pretty good analog right here in New York City in how we try to grapple with the difficult concept of “home” as it relates to scarce and precious public housing resources.

This month, NYCHA General Manager Cecil House testified before the New York City Council about the Housing Authority’s “rightsizing” plan. As the wait list for public housing continues to grow (in 2012, NYCHA projected that nearly one in three units (55,000) were “underoccuiped”, while the wait list swelled to 160,000 families), NYCHA has sought to optimize apartment usage by “transitioning families to apartments appropriate for their needs.”

As House stated, “Rightsizing does not only improve the quality of life of current NYCHA residents but also provides housing to more New Yorkers on our waiting list.”

The rightsizing issue has been extremely controversial, largely because its very nature necessitates removing people from their homes and placing them in smaller apartments (particularly older residents whose children have moved out). NYCHA is, after all, a public resource and rightsizing is absolutely needed to ensure that new families can take advantage of the opportunities it provides.

However, if our homes are indeed our castles, it is also understandable as to why ranchers or public housing tenants would feel ownership, the deed notwithstanding.

In situations like these, where emotions run hot and mistrust lurks around every corner, there are few good choices. However, our system of government is rooted in the consistent application of the rule of law, rather than the fallible whims of officials.

Indeed, just as the BLM didn’t attack Bundy for who he was, but for what he did (violate the law by refusing to pay a standard fee), so NYCHA’s rightsizing is not directed at individual residents as punishment, but is instead enforced as part of a contractual agreement entered into by tenants with the Housing Authority.

As long as the system itself is fair and people have the opportunity to argue their case before a neutral arbiter, that’s all we can ask in a Republic. Taking up arms against that effort is an affront to a government of laws itself—a government that is fallible, but far better than the alternative.

Friday, April 25, 2014

Net Neutrality: A Revolutionary Solution to a 21st Century Problem

 Whatever facilitates a general intercourse of sentiments, as good roads…a free press, and particularly a circulation of newspapers through the entire body of the people…is favorable to liberty.”

--James Madison, Public Opinion, 19 Dec. 1791

This week, the Federal Communications Commission (FCC) announced a major shift in policy concerning “net neutrality”—the principle that has heretofore established that all legal internet traffic must have equal access to the networks of service providers. This shift will potentially allow larger companies (particularly providers of bandwidth-busting streaming video, like Netflix or ESPN) to pay for preferential access to the internet’s infrastructure—what the New York Times deemed “the digital equivalent of an uncongested car pool lane on a busy freeway.”

A host of consumer and civil liberties groups—from Common Cause to the American Civil Liberties Union (ACLU)—have spoken out against the proposed rule changes, with the ACLU predicting, “barriers to innovation will rise, the marketplace of ideas on the internet will be constrained, and consumers will ultimately pay the price.”

On the other side of the argument are telecommunications companies that for years have insisted that “tiered” bandwidth would benefit the majority of consumers. As David Cohen, an executive at Comcast declared at an FCC hearing at Harvard Law School in 2008, “Bandwidth-intensive activities not only degrade other less-intense uses, but also significantly interfere with thousands of Internet companies’ businesses.”

While I personally believe that net neutrality should remain the law of the land, I am not blind to the pressures facing ISPs or the writing on the wall from the FCC. Therefore, I want to focus today on the potential effect that a “bandwidth to the highest bidder” system could potentially have on a free press and whether an ancient Constitutional clause long forgotten—the Post Roads Clause—can be seized on by Congress to ensure a free and equal exchange of ideas online.

I propose that Congress enact legislation recognizing fiber-optic/broadband cable as the post roads of the 21st century, and (assuming the FCC’s plans go through) require all ISPs that choose to implement differentiated services to permit news organizations to have free and uninhibited access to the fastest possible connection to end users. This designation would reduce the potentially devastating effects of “bandwidth to the highest bidder” and would comport with the history of Congressional awareness of the importance of a free and open press.

The Old Boston Post Road-- From Wall Street to the Hub
In 1791, Massachusetts Congressman Elbridge Gerry declared, “Wherever information is freely circulated there slavery cannot exist; or if it does, it will vanish, as soon as information has been generally diffused.” Shortly thereafter, the first Postal Act passed and ever since, the Post Roads power of Congress (Art. I, §8, Cl. 7) has been used to support the work of newspapers. Newspapers were permitted to use the mails at deeply discounted rates throughout the 18th and 19th centuries and were eventually joined in that privileged position by magazines, books, and other periodicals.

Over time, the Post Office has continued to be at the forefront of using transportation and communications technologies to improve both the reach of the press and the speed at which its product could be transmitted across the continent.

In 1823, waterways were declared post roads. In 1838, all railroads in the United States were declared post roads. And in 1922 and 1923, the Post Office was awarded the Collier Trophy for important contributions to the development of aeronautics for its contributions to airliner safety.

The Post Office not only asserted control over transportation technology, but also over new forms of communication technology. As the Supreme Court of the United States noted in Pensacola Telegraph Company v. Western Union Telegraph Company, a case upholding Congressional regulation of telegraph lines:

Post-offices and post-roads are established to facilitate the transmission of intelligenceThe powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth.

Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9-10 (1878) (internal citations omitted) (emphasis added).

Like the canals, rails, and wires before it, the internet has become the great facilitator of knowledge—tying the nation and the globe together and transmitting ideas across oceans in ways the Founding generation never could have imagined. And yet, as the Court said 136 years ago, the Constitution stands ready to adapt to the “progress of the country.” In 2014, the time has come for Post Roads to meet Cyber Space.

Thursday, April 24, 2014

Stamps, Low Prices, and Banking in Modern America

 “I cannot forbear intimating to you the expediency… of facilitating the intercourse between the distant parts of our Country by a due attention to the Post-Office and Post Roads.”

--President George Washington, 1st Annual Address to Congress, 8 Jan. 1790

In February, Senator Elizabeth Warren (D-MA) unveiled a proposal, based on a white paper issued by the Office of the Inspector General for the United States Postal Service, to resuscitate the flailing Postal Service by partnering with banks and credit unions to offer basic banking services -- bill paying, check cashing, small loans -- for the nearly 70 million Americans who are part of the “unbanked” economy, lacking access to checking or savings accounts.

As Warren noted, the costs imposed on the working poor by lacking access to bank accounts is substantial.

Collectively, these households spent about $89 billion in 2012 on interest and fees for non-bank financial services like payday loans and check cashing, which works out to an average of $2,412 per household. That means the average underserved household spends roughly 10 percent of its annual income on interest and fees -- about the same amount they spend on food.

Many elected officials have taken significant steps to solve the problems facing the unbanked. For instance, as Manhattan Borough President, my boss, Scott Stringer, partnered with banks to promote low-cost checking accounts through the Bank On Manhattan program, saving thousands of New Yorkers hundreds of dollars in check-cashing fees every year.

However, there are few institutions in American life that have the scope and reach of the United States Postal Service. Indeed, from the flagship Farley Post Office on and 8th Avenue in Manhattan (10001) to the remote outpost in Barrow, Alaska (99723), USPS has been designed, from the founding of the Republic, to “bind the nation together” as one.

The Founding Fathers wouldn’t have believed it, but in 21st century America, there may be one entity that can compete with the reach of the USPS: Wal-Mart. The world’s largest retailer, with over 10000 stores in 71 countries (over 4000 stores in the U.S.) and over $476 billion in sales in FY 2014, Wal-Mart’s footprint is so large that over 90 percent of Americans live within 15 miles of a store.

So perhaps it comes as no surprise that as same-store sales stall (thanks in no small part to the stagnation in wages growth for the vast majority of Americans), Wal-Mart is dipping its toes into the financial services arena. Last week, the company announced that it would launch a new, low-cost money transfer system today, Thursday, April 24, which will allow customers to transfer up to $900 between stores at a fraction of the cost of competitors Western Union and MoneyGram (whose stocks plunged upon the news).

While many justifiably criticize Wal-Mart’s labor and environmental practices (though in my view in a manner disproportionate to the scrutiny other similar firms face), there is little doubt that Wal-Mart’s sheer size can have a potentially transformative effect on the unbanked. Indeed, just as we now shop for groceries, set our alarms, read our email, watch TV, and pay our bills with our phones, so the banking of the future is likely to take place outside the traditional bank—be it online or at a store like Wal-Mart (a similar, consumer-oriented trend has emerged in medicine with the proliferation of “minute clinics” in pharmacies nationwide).

It will be interesting to see how Wal-Mart’s new service fares. For now, government regulators should take a wait-and-see approach to the initiative, ensuring that consumers are properly informed of the services offered and the fees charged, while also allowing the market to innovate in order to drive down costs.

And if it doesn’t work out, there’s always that post office in Barrow.

Wednesday, April 23, 2014

An Awakening: School Holidays + Political Power

Being in politics is like being a football coach. You have to be smart enough to understand the game and dumb enough to think it’s important.

-- Sen. Eugene McCarthy, 1967

Last week, the New York Times and the Boston Globe wrote about the hot-button issue of religious equality in school holidays. In Massachusetts, the last state in the Union to dismantle its State-sponsored church (in 1833!), the controversy is over the decision of 17 school districts to open on Good Friday. In New York City, the debate is over whether to add the Muslim holidays of Eid al-Fitr and Eid al-Adha to the calendar of the nation’s largest school system.

In the Bay State, districts are responding to demographic shifts, seeking to find a consistent balance in an increasingly secular world.

In New York, the situation is far more interesting. In 2009, the City Council (with only one dissenter) approved a resolution calling on Mayor Michael Bloomberg to add the two holidays to the school calendar. The dissenter, Councilmember and former Attorney General G. Oliver Koppell (D-Bronx), worried about the potential for a proliferation of holidays, inquired, “Where are we going to end with this?” The answer, as it turns out, is based in no small part on how well different communities are able to organize.

Five years later, with a Mayor in office who campaigned to add the holidays to the calendar, what we’ve witnessed is the culmination of efforts to mobilize an entire population to wield political power—call it a “secular awakening” of sorts. As the Times wrote, the vigor and organization of the effort is “a testament to how the city’s Muslim community is gaining a measure of political confidence.”

The renewed campaign to get holy days on the school calendar comes on the heels of the launch of the City’s first Muslim-American Democratic Club, the aptly named Muslim Democratic Club of New York (MDCNY) in 2013—a club that understands that its mission is to simultaneously inspire and deliver.

As MDCNY states, its mission is to, “mobilize and empower the American Muslim community in NYC by nurturing a culture of civic participation.” That lofty and important aspiration is grounded in a real politik concern as well. “Our goal in establishing a democratic club is to increase the number of American Muslim triple prime Democratic voters” (that is, voters who cast ballots consistently in primary, general, and special elections).

Other organizations, from the Arab-American Family Support Center (founded in 1994), to the Arab American Association of New York (launched in 2001), which worked with NYU to produce a groundbreaking survey of Arab Americans in NYC in 2012, community groups serving NYC’s Arab American community are thriving as the population in the Metro area continues to climb (hard data is notoriously difficult to come by, but the general direction is clear).

It goes without saying, of course, that even within these groups, there is immense diversity. Arab American groups are made up of members of many of the world’s great faiths and the membership of Muslim groups is a cross-section of the City in that it is a mixture of American and foreign-born advocates. In 2009, the Times noted that this very diversity could be an obstacle to effective political organizing and that the community had, at times, “seen its social and political ambitions hamstrung by schisms among competing groups.”

That lesson—of learning to compromise internally in order to project a unified, forceful position externally—is part of how a community learns to transform its economic and demographic clout into political power.

The next step—after celebrating what we hope will be a great victory on school holidays—is to bring that same political energy and passion to bear on issues that affect people beyond the community. Indeed, by the 2017 election, my hope as a New Yorker is that the MDCNY and others are getting calls from candidates and elected officials not only about issues of particular salience to the Muslim community—like school holidays and surveillance—but on a whole host issues, from landmarking and tax policy to economic development and transportation.

It will be at that moment when the awakening of a community will have become cemented into the political fabric of the City, never again to be overlooked and forever more to be valued as a key contributor throughout the five boroughs.

Tuesday, April 22, 2014

From Romance to Realism: Connecting the Boroughs

“What thrills me about trains is not their size or their equipment but the fact that they are moving, that they embody a connection between unseen places.”

--Marianne Wiggins, The Shadow Catcher, 2008

Yesterday, Times architecture critic Michael Kimmelman wrote about the need for a streetcar line to connect the burgeoning neighborhoods along the Queens and Brooklyn waterfronts. While some of these neighborhoods (such as Downtown Brooklyn and Long Island City) are well served by transit vis-à-vis the “Manhattan Core,” they lack reliable, efficient options for inter-borough travel (with the notable exception of the ever-maligned but ever-more-popular G train).

In endorsing a streetcar line (nicknamed the “desire line”), Kimmelman admits that buses may provide a “more obvious solution,” but that a bus would lack the “romance” of a streetcar. Kimmelman is nothing if not consistent—his columns on the current and future state of Penn Station often dwell on what was lost in the destruction of the old Penn Station rather than necessarily where the rebuilding of a new “head house” should rank in the pecking order of Midtown Manhattan’s public transportation wish-list.

Now, I’ll admit—as someone who dreams of the California Zephyr and gets excited by National Train Day, more sympathetic to this view, I could not be. 

However, there are bolder, more urgent priorities than the “desire line” that the City and State of New York should be focusing on to improve inter-borough service outside Manhattan. Indeed, the best plan of all—the “X” line—would seize on existing rights of way to stimulate investment in neighborhoods beyond the waterfront that could make up the job corridors of New York’s 21st century economy.

The Regional Plan Association first proposed the “X” line, which stretches from the Bay Ridge waterfront to the South Bronx in a semicircle route, in its Third Regional Plan in 1996. And since that time, many folks with far more knowledge of NYC transit than yours truly—from Michael Frumin (whose map is shown below) to Ben Kabak to Andrew Lynch have added to the chorus of voices clamoring for this transformative cross-town line.

In short, the “X” line would travel along the old Bay Ridge Line, which makes a broad arc through southern Brooklyn from Bay Ridge to Broadway Junction. It would then use the Canarsie Line (L) until it turns towards Bushwick. It would then run through Ridgewood, Middle Village, Maspeth, Jackson Heights, and Astoria before rising onto the Hell Gate Bridge and terminating in the South Bronx.

In 2012, Kimmelman declared, “We have become a city too cynical about big change, resigned to the impossibility of unraveling bureaucratic entanglements, beholden to private interests, inured to commercialism and compromise.”

I agree with this critique—but it is imperative that our response to it be properly directed to maximize scarce resources and build up communities that have traditionally been underserved by transit and are in need of investment for future growth.

This week, the RPA is hosting its annual Assembly with an eye toward its Fourth Regional Plan. While it is beyond dispute that the waterfront districts have benefitted from zoning changes, reductions in crime, and other public efforts over the past 20 years, they have also been able to attract billions in private investment even without ideal cross-borough transit access (though the East River Ferry has significantly improved this service).

As a result, my hope is that the RPA uses this opportunity to make the “X” line a centerpiece of its vision for regional transportation. More than ever before, connectivity outside the Manhattan Core is central to New York’s continued success and few projects hold the potential to bring communities together in support of mass transit like the “X”.

Friday, April 18, 2014

Connectivity and the Prisoner's Dilemma

Bay State Brahmin will be off on Monday in honor of Patriots Day. We'll be back on Tuesday, April 22.

“The peculiar problem of constant connectivity: any silence of more than a few hours provokes apocalyptic thoughts.”

-- Dave Eggers, A Hologram for the King, 2013

Last week, labor unions and corporate leaders in France agreed on a framework to limit connectivity for at least 11 consecutive hours a day. This “obligation to disconnect from remote communications tools” is designed to ensure that individuals are actually able to be free from the 24/7, on-call demands that have come to characterize many U.S. workplaces, especially in the years since the Great Recession.

While France is (in)famous for embracing a blunt approach to labor regulations, there are certain contexts in which regulation short of absolute bans (literally turning off the switch) will invariably fail to achieve the desired ends. Indeed, the world of ever-present connectivity is just such a context—a classic prisoner’s dilemma where all would benefit from signing off and checking out, but the incentives are so strong for people to be constantly available that all end up feeling pressured to always be “on-call.”

As Allison Rimm, a management consultant, told the Boston Globe, “You can have all the policies in the world. But if you are the leader, and you’re sending late-night e-mails, that creates a certain culture. It’s a real leadership issue.”

Part of the reason why connectivity and the effort to achieve work-life balance constitutes a classic prisoner’s dilemma is that many people eschew the very idea of balance in the first place. As former General Electric Chairman and CEO Jack Welch said in 2009, “There’s no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.”

And in 2011, Chief Judge Loretta Preska of the United States Court for the Southern District of New York issued a historic ruling in EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458 (S.D.N.Y. 2011), stating:

The law does not mandate “work-life balance.” It does not require companies to ignore employees' work-family tradeoffs – and they are tradeoffs – when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be "forward-thinking." But they are not required by law…In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences.

I believe Preska’s interpretation of the law as written is the correct one. But of course, that only begs the question—so often asked by Chief Justice Earl Warren—is the law right? Is it good? The answer—at least for the majority of Americans who desire greater balance—would seem to be no.

As is so often the case, technology itself offers a solution—this time to the constant connectivity problem. Apps offering “freedom” from connection have proliferated in recent years, helping thousands of Americans unilaterally detach.  As reported in the Times, some corporations have taken this step company-wide, with Volkswagen shutting down its Blackberry servers off-hours.

As I sit here at 1 A.M. finishing this entry, I am not naïve enough to think that American companies will soon follow suit—unless, of course, the companies themselves are convinced that such disconnection is a net positive to productivity.

Indeed, as Philip Roth told GQ, “I can only really write when I'm alone in a place that’s mine, that I’m accustomed to, and there's no interruption. I don't have a phone. I don’t have anything that can distract me. And I spend the hours ruminating. If you spend six or seven hours ruminating on your invention, the next part of it will come to you.

You don’t have to be world-famous author to realize how connectivity leads to burnout and disconnecting to rejuvenation. Recent surveys have shown that over 80 percent of American workers check work email on weekends and over half of workers respond to emails off-hours either in close to real-time. This pattern contributes to a high rate of stress among U.S. workers that is estimated to cost the economy about $300 billion annually.

In the end, like any prisoner’s dilemma, the only lasting solution to the problem of constant connectivity likely lies in collective action. In our nation, that action is unlikely to come from the government. As a result, advocates must convince business leaders to change their policies—for the good of their profits and the people they employ.

Thursday, April 17, 2014

True Transparency in Gov’t: A “Common Sense” Approach

I know it when I see it…”

-- Potter Stewart, Associate Justice of the Supreme Court
Jacobellis v. Ohio, 378 U.S. 184 (1964) (concurring)

Last year, in a dispute surrounding emails allegedly sent by then-New York Attorney General Eliot Spitzer concerning an investigation of officials at AIG, New York Supreme Court Justice Christopher Cahill ruled that that the use of personal email accounts by government officials for agency-related business cannot be used as a shield against disclosure under the State’s Freedom of Information Law (FOIL).

“Pursuant to judicial precedent and the underpinnings of FOIL, the [Office of the Attorney General] has both the responsibility and the obligation to gain access to the private email account of former Attorney General Spitzer to determine whether the documents contained therein should be disclosed to petitioner in accordance with its FOIL request.” Smith v. N.Y. State Office of the AG, 2012 N.Y. Misc. LEXIS 4166 (Sup. Ct. Albany Cty. 2012).

The case continues to wind its way through New York’s courts. Just last week, the New York Law Journal reported that the State continues to argue that “FOIL does not compel disclosure of records that are not in the possession or control of the state at the time the request is made.”

Spitzer isn’t the only elected official in New York who has sought an end-around FOIL. Governor Andrew Cuomo (in)famously uses BlackBerry PIN messages that are not retained by provider Research in Motion and do not leave a paper trail.

Former Mayor Michael Bloomberg used “” email addresses with his top officials, siphoning public business off of “official” email and on to private servers that are either beyond the reach of FOIL or, at the very least, extremely difficult for public agencies to track down.

In 2002, Former Mayor Rudolph Giuliani sent his official papers to a nonprofit he controlled instead of transferring custody directly to the city’s Municipal Archives.

All of this has taken place despite the fact that New York’s Committee on Open Government (COOG) has issued advisory opinions declaring that private communications, when used to contract public business, are subject to FOIL. [E]mail kept, transmitted or received by a town official in relation to the performance of his or her duties is subject to the Freedom of Information Law, even if the official ‘uses his private email address’ and his own computer.”

Furthermore, it is curious the lengths elected officials go to avoid FOIL given that FOIL specifically provides an exception for “inter-agency and intra-agency” deliberative materials (see N.Y. Pub. Off. Law Sec. 87(2)(g)) and courts routinely uphold the withholding of material about press strategy and other potentially sensitive political decision-making.

So what’s a good government advocate for transparency to do? How do we determine what is a problematic end around FOIL vs. what is a routine practice essential to the open and frank deliberation that any political office must necessarily engage in?

The Embodiment of Government Secrecy.
CC License: Flickr user "Raoul Pop"
First, we can acknowledge how technology has far outstripped FOIL (which was initially passed in the wake of Watergate, in 1976) and that new regulations and penalties may need to be devised to increase the potential cost of moving governmental communications “off book.” For instance, there may well be no reason why official communications should occur outside of official channels that are ultimately within the possession of a given government entity. If that is indeed the case, perhaps penalties should attach to the use of private communications for government work, regardless of whether the private email was used in an effort to evade FOIL.

More importantly, I think we need to apply a little dose of common sense—the type that Justice Stewart was referencing what he penned his famous line about knowing pornography when he sees it, or that the Fourth Circuit Court of Appeals discussed in South Carolina State Ports Auth. v. FMC, 243 F.3d 165, 174 (4th Cir. 2001) (determining that an adjudication “walks, talks, and squawks very much like a lawsuit”).

That common sense approach would look at the subjective motivation of the communication in question. For instance, was the use of private email deliberately employed in an effort to avoid FOIL? After all, if it looks like an end around FOIL, it’s probably an end around FOIL.

The New York Post editorial board recently stated, “If politicians can escape scrutiny simply by doing their work via private e-mails, we lose all hope for government accountability and transparency.” I agree and I hope that New York’s courts rule in favor of complete disclosure of public work, whether on government servers or private email.

However, regardless of how the issue plays out in the courts, citizens should demand that elected officials clearly and transparently share their disclosure policy—both what they will affirmatively share (and in what format/timeframe) and what they will withhold so that voters can hold their leaders accountable for valuing true transparency.