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Startup Idea: Ads for Enemies

A million-dollar idea: An app that lets you program the ads during your enemies' web or Facebook browsing. For $5, you can make sure that the entire day, they are looking at ads for nothing but giant sex toys, hemorrhoid cream, mail-order transgender escorts from Kyrgyzstan, the 'Twlight' movies, and suicide hotlines. 

Freund hört mit, or: Under US Law, Germans Have No Privacy Rights and Can be Spied on at Will


I slapped together a little something (g) for Germany's Legal Times Online about the Snowden case. The editor pepped up the language a bit, but that's fine with me, it's supposed to be a popular format.

What I said is that the Fourth Amendment guarantees US citizens privacy in situations in which they have a 'reasonable expectation of privacy'. Email and (especially) phone calls certainly belong in that sphere. So if the NSA is collecting massive amounts of emails and telephone data randomly, without a specific search warrant, then it is violating the privacy rights of US citizens. According to recent revelations, the NSA has developed internal 'minimization procedures' that instruct agents to stop listening or reading if they find out that they are spying on a US citizen, similar to regulations the German Federal Constitutional Court has required in cases of spying on telephone calls or private apartments. But since the court meets in secret, we have no way of independently verifying these claims. Also, since the Obama administration has blocked all privacy lawsuits with the legal doctrine of the state secrets privilege, no American court has yet ruled on whether these programs are constitutional.

However, the situation in Germany is not very different. German spy agencies have extremely broad powers under existing law, and will gain new ones under the new Telecommunications Law which takes effect on 1 July. There is a parliamentary committee which provides general oversight of requests for surveillance and a so-called G-10 committee which rules on individual requests. They are supposed to follow strict minimization procedures and insist on adequate proof of possible wrongdoing before authorizing spying measures. However, since both of these committees operate in secret, we have no way of knowing how carefully these guidelines are respected. Plus, since there have been no German whistleblowers, we have no real insight into the scope of German programs. As the Green Party speaker Konstantin von Notz recently remarked, it is high time that Germans learned more about what their own spy agency is up to.

One thing that has really angered Germans is the fact that communication to and from and even within Germany are being spied on by the US and the UK. The official position of the US government (in the form of a Senate report) is that foreigners 'foreigners outside the United States generally are not entitled to the protections of the Fourth Amendment.' Thus, the current version of Section 702 of the Foreign Intelligence Surveillance Act provides no protection for the privacy rights of foreigners. The secret court which orders surveillance can authorize blanket data collection on all foreigners, everywhere. The only limitations kick in when it appears that an American citizen may be involved. In the words of the report itself, 'Section 702 thus enables the Government to collect information effectively and efficiently about foreign targets overseas and in a manner that protects the privacy and civil liberties of Americans'.

Of course, this wouldn't matter so much if American and the UK didn't have, and use, spying technology that can sweep up massive streams of data from everywhere and anywhere. As far as remedies for Germany, it's not clear what Germany can do, except send sternly-worded letters (g) to American officials. I'm not aware of any treaty that the US has ratified without reservation which would give Germany a basis for complaint before international tribunals. But I'm happy to be corrected in comments if I've overlooked something.

Germans Are Also Spying on Germans

The revelations of NSA spying activities have, predictably, generated plenty of headlines in Germany. The initial undertone of much of this coverage was predictable: everyone can be a victim of the super-powerful secret American surveillance state; Americans, as usual, are blindly overreacting and sacrificing their so-called liberties for the illusion of security.

However, some reporters and commentators are beginning to ask a question which would seem a lot more relevant for Germans: are German spy agencies doing similar things? The answer, depending on who you ask, is either 'probably', or 'we have no idea, since all these matters are kept secret in Germany and there have been no whistleblowers'. 

That's one point made by Niko Härting (g) at the CR-online blog in a post entitled 'Spy Agencies: Justified Criticism in the USA, Blind Trust in Germany' (my translation):

The manner in which [German] spy agencies use the considerable powers granted them under current law is unknown. Therefore, it's impossible to say if there are programs in Germany which might be comparable to 'Prism'. Spy agencies operate in hiding, and [parliamentary] oversight is performed by a committee whose meetings are strictly confidential. Whistleblowers such as Edward Snowden or Bradley Manning have not come forward in Germany in recent years.

Meanwhile, in Germany, the main spy agency is planning a €100 million program to train and hire 100 new spies for Internet surveillance.

Two questions: (1) Where are the German whistleblowers? and (2) If one actually came forward, would he or she be celebrated as a hero by Germans, or denounced as a 'nest-fouler' who is endangering valuable and necessary security measures?

What Americans Think about Nuclear Energy

Germans, or at least German journalists, are obsessed with nuclear energy. Any list of the themes on which the German press is the most openly biased campaigning coverage, nuclear energy has to be in the top 10, if not the top 5.

So it's not surprising that the nuclear accident in Fukushima prompted an flood of hyperventilating scare stories in the German media, which were enough to actually prompt a major change in policy -- the so-called Energiewende. And this isn't just my impression: a study of Fukushima coverage in Germany concluded that coverage of the earthquake in Germany was dramatically different than in other countries: the German-language media focused more on the reactor catastrophe, provided more dramatic pictures, explicitly linked the reactor disaster to the question of German nuclear reactors, and included more direct journalistic editorializing against nuclear energy and demands that Germany shut down its reactors.

I don't have time to look up the views of ordinary Germans on nuclear energy, but it's hard to imagine the wall-to-wall indoctrination hasn't had its effects. I was thinking of this because of a recent post from Razib Khan's excellent Gene Expression blog. The subject is what Americans think about the dangers and potential of nuclear energy, broken down by political views and education:

Column: POLVIEWS(r:1-3″Liberal”;4″Moderate”;5-7″Conservative”)

Selection filter(s): year(2010-*) 

Views on nuclear energy N ~ 400
  Lib Mod Cons
Strongly favor 16 13 12
Favor 49 50 64
Oppose 28 27 16
Strongly oppose 7 9 8
Nuclear power dangerous to the environment N ~ 1300
  Lib Mod Cons
Extremely dangerous 26 23 16
Very dangerous 25 29 23
Somewhat dangerous 33 32 31
Not very dangerous 14 13 22
Not dangerous 3 3 8

As you can see liberals do tend to be more skeptical of nuclear energy, but it is not stark. In fact, attitudes toward nuclear power seem to be as strongly, if not more so, variant on a populist vs. elite axis than conventional ideology. Here’s the second question replicated for education:

Nuclear power dangerous to the environment N ~ 1300
  No college College  
Extremely dangerous 26 11  
Very dangerous 27 21  
Somewhat dangerous 31 34  
Not very dangerous 11 28  
Not dangerous 4 7  

But, when you look only at college educated individuals the ideology divide doesn’t go away. In fact, it seems more extreme.

Nuclear power dangerous to the environment N ~ 370
College educated only
  Lib Mod Cons
Extremely dangerous 14 16 5
Very dangerous 28 22 14
Somewhat dangerous 38 35 28
Not very dangerous 15 24 42
Not dangerous 5 4 11

That’s strong circumstantial evidence that the gap here is one of cultural norms and values, and not facts.

Note that many people favor nuclear energy while at the same time conceding that it's dangerous or harmful to the environment. It's also interesting to note that college-educated people think it's less dangerous than those who didn't attend college.

Ask Me Anything about American Law or Life in Germany

You know, I've been wondering what to do about this blog. I don't really have the time for elaborate posts anymore, or perhaps I just don't have the patience. I was considering just shutting it down for a while, but then there was a bit of an outcry, so I kept it alive, but as you can see it's sort of limping along.

But then I got an idea from this brilliant series of videos called Sixty Symbols, where people write in with questions about physics and other things, which questions are then answered by the physics faculty of the University of Nottingham. So far, my favorite question has been 'What would happen if you put your hand in the Large Hadron Collider?', plus the God video I just posted. 

I also just got a GoPro Hero 3 camera, which makes great HD videos and is much smaller than a pack of cigarettes. Therefore, I thought to myself, why not open up the floor to my readers? Instead of me having to think of stuff to blog about and then laboriously type it up, I can just field questions from you. Hyperinteractive Web 2.0, people!

But obviously nobody wants to just hear me rambling about random subjects such as anal fissures, Albanian hip-hop, or chameleon husbandry. The only things I can really claim any expertise in are American law and life in Germany. As a bonus, I'll try to record some of the answers in interesting spots in or near Düsseldorf, if time and weather permit.

So if you have any questions about either of those subjects, fire away! You can also ask about other stuff and try your luck, but I will only pick questions I feel like answering. You can propose them in comments or by email, I guess. Let me know if and how you want to be identified.

Oh, and nothing in any of these videos will ever constitute legal advice of any kind whatsoever, or any other kind of advice on any subject. And all views expressed will be my own, blah blah blah.

Fewer Unions, Falling Wages, Rising Inequality

I was kindly invited to give a speech at the annual conference of the German American Lawyers' Association in Freiburg. I agreed, since Freiburg is a delightful place, the annual wine festival's happening at that time, and I can probably get some study time in at the Max Planck Institute for Criminal Law. The downside? I have to talk about collective bargaining. That's the theme of the conference, and although I repeatedly told the very nice lady that wasn't really my field, she was extremely persistent.

So now I'm boning up on collective bargaining. Which turns out to be a fascinating, if depressing story. The modern era of collective bargaining in the U.S. started with the National Labor Relations Act, which was supposed to set up a fair and equitable means of managing labor disputes. However, especially since the 1970s, changes in the American workplace and a concerted anti-union effort by conservative politicians and judges have effectively deprived American workers of the right to strike (for the long version of this argument see this article on how American workers have lost the right to strike).

Here are a few charts that basically tell the story. First, union membership rates:

As the article from which this was taken puts it:

In 2012, the rate of union membership in the public sector fell by more than a full percentage point, from 37 to 35.9 percent of workers, while in the private sector it dropped from 6.9 to 6.6 percent. The combined rate of American workers now belonging to a union stands at 11.3 percent, down from 11.8 the previous year and the lowest figure ever since the bureau started collecting the data in 1983, when the rate was 20.1 percent.

Strikes have also become practically non-existent:

Since the 1970s, wages and compensation for lower-middle and working class people have stagnated or dropped (the lines represent percentile rankings of the population):


Men are making less in real terms than they did in 1970, and many have therefore dropped out of the labor force entirely:

 ...and increases in productivity have increased corporate profits and the income of the top 1%, rather than funding a broad, prosperous middle-class: