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Wednesday, April 29, 2015

Hillary Clinton and Unknowns

Donald Rumsfeld, U.S. Secretary of Defense

I always wished that I knew more about my great-grandfather.  I have an inlaid wooden table in my office that he made.  We have a nursing chair at home that he made.  These are beautiful examples of what he apparently did --- woodworking and furniture making.

I have only a little family information.  He was William Young and he was born in 1841.  His family came to America from Scotland.  I could go to websites like and look for more records, but these amount to a rough sketch of the man.  They would not give any detail of what he was really like.  Too little actual personal information has been passed down through the family.

Thus, I have a "known unknown" -  in Rumsfeld's equation "we know there are some things we do not know."  What is missing is any information that would lead to knowing more.

Keeping information, large and small, is important when we try to understand the past and apply that understanding to the future.  Information provides context.  New information may shift interpretation of prior judgments.  As lawyers, we might substitute the term "evidence" and consider the elaborate set of rules that the legal system employs to allow or disallow evidence at trial.  Without information or evidence, we are in the kind of darkness, Rumsfeld's unknown unknown.

We are said to live in the "Information Age."  Computers and the Internet have us awash in information.  We have at our finger tips access to massive amounts of information that once required extensive physical searches of libraries, museums, and public records.  That immediacy and accessibility, however, does not help us at all with the information that is missing, lost or never retained.

I have written about privacy of our information in the digital age.  I want to focus here on the need to know, to preserve information, so that history may assess it and make conclusions from a more complete record.

Let's start by looking back to 16th and 17th century England at someone that we may think that we know well.  Bill Bryson has written a slender biography of William Shakespeare.  Intentionally so, because Bryson limited himself to those elements of Shakespeare's life as to which there is some hard evidence or record.  The surprising thing is that we have relatively little documentation about a man that many consider the world's greatest playwright.  He surfaces in public records (birth, marriage,  court, death) infrequently and often at long intervals. There are only a handful of sketches that are purported to be of Shakespeare, but even these are doubtful.  Speculation abounds, over the spelling of his name (not an uncommon problem in his time), his marriage (leaving his wife his second best bed), even his authorship of the works that bear his name.

What we have is a very rough sketch and much broad speculation about who Shakespeare, speculation not supported by the historic record.  We really do not know Shakespeare that well at all.  In fact, if it were not for technology, we likely would not have much interest in Shakespeare at all.  He might have been a tiny footnote or small paragraph in the history of theater in the Elizabethan age.  The technology involved was the printing press.  Shakespeare had the good fortune to have had his plays published both during his lifetime in the folios and, more importantly, because of the additional number of plays collected, in the quartos published posthumously by his friends and theatrical colleagues John Heminge and Henry Condell.  To have been published at all was a haphazard thing in Shakespeare's time, but extremely important to our analysis now.  Because plays performed in London's robust theatrical world had to be licensed, the records of the time preserved much information as to the names of playwrights and plays, but very few texts of the plays survive.

Artists like Shakespeare and Ben Johnson are known and revered today because their poems and plays were published.  We can read and evaluate their art.  And, of course, the printed plays had to be preserved to survive, so future generations long after could appreciate and debate the merit of them.  Again, fortunately for Shakespeare, an abundance of his published work was preserved.  Without these printed examples, Shakespeare likely would be one of those "known unknowns," someone with a name and a place in history, but no context or evidence of his work, of his greatness.
What historical analysis needs is contemporaneous documentation of some kind.  Even with documentation, things can be confusing.  Hopefully, many of us might say that we know Lincoln's Gettysburg Address (, one of the most famous speeches in American history. This is so because of the historical record.  There were contemporary newspaper stories and ample written recollections.  The record is not without some ambiguities. Lincoln followed a two hour oration by Edward Everett.  His speech of just ten sentences and lasted only a few minutes, so the majority of the crowd apparently was unaware of that the President had spoken at all.  Although we think that we know the words of the Gettysburg address, perhaps by memory, there are actually five known copies, differing in some respects, as well as printed transcripts in the newspaper reports.

But we have some record of these events that has been preserved and can be analyzed.  Lincoln provides another famous example of history's dependence on preservation of a record.  In November of 1864, Lincoln wrote a short, but moving letter to Mrs. Bixby in Boston, Massachusetts to console her on the loss of her five sons who died fighting in the Civil War.  That letter survives and has made its way in to contemporary culture.

Preservation of an archive is essential to understanding the past.  That archive may not be without contradictions or omissions, but it is better than pure fabrication.  It allows historians some insight from contemporaneous evidence, which then can be weighed and from which conclusions can be drawn.  It gives us our "sense of the past." 

We now have a National Archive for the precise purpose of preserving a record of government activities, communications, and deliberations.  One of the reasons to be thankful that contemporary U.S. Presidents raise money and build presidential libraries is that they donate their personal papers to such libraries, so that we have them to assist in accessing history.

With modern technology, the preservation of a record of government deliberations has entered a new era.  Let's look at two separate examples.

If you may remember "Watergate" during Richard Nixon's presidency.  Watergate involved hired persons breaking into the office of the Democratic National Committee.  In addition to much other information gathered during his presidency, Richard Nixon had tape recording equipment installed in the White House, from which much was learned of his personal interaction and involvement in the Watergate break-in.  Much mystery arose, however, from the famous "18 minute gap" in those tapes.  The gap allegedly resulted when Nixon's secretary, Rosemary Woods, mistakenly erasing part of a tape she was transcribing.  This mysterious omission aside, the Nixon tapes proved rather revealing about the general workings of the Nixon White House.

Now we have revelations that, while serving as Secretary of State, Hillary Clinton did not use the government network servers for email communication. Instead, she used a private server installed in her home in Chappaqua, New York.  While the government security services protected this computer, the computer and its files remained with Clinton after she left office.  She did not turn over any of her emails to the State Department or the National Archives.

When the existence of the governmental email held by Clinton on her private server surfaced recently, there was immediate interest and demand in knowing what those email contained.  Not only was Clinton a high profile Secretary of State and at the center of controversy (notably over events at the U.S. Embassy in Benghazi), but politically she appears to be a leading candidate for the Democratic presidential nomination in 2016.  The Clinton email revelations also were followed by revelations that hackers gained access to President Obama's email, including his schedule.  These problems with Clinton's and Obama's email only highlight continuing concerns over security of electronic information.

Hillary Clinton and former President Bill Clinton are quite familiar with these kinds of controversies.  The Clinton ability to slide out of tight spots is well known.  The political question here is whether it will work this time.

There is, however, a more fundamental question of accountability that may not be so easily dodged.  First, let's look at the way in which Hillary Clinton has dealt with this controversy so far.  She did turn over to the government a significant number of email that she (or someone working for her) determined to be related to State Department or other governmental activities.  Clinton declared what was left on the server was private, personal communication not related to governmental activities.  How this was determined may yet be satisfactorily explained, but there does not appear to have been any independent governmental involvement in this determination.  Clinton then inched toward treating the matter finished.  Congressional critics continued to seek everything on the private server (or at least some independent verification that the server did not contain other governmental communications).  Then, Clinton seemly closed the door by announcing that the contents of the private server had been wiped clean.  Everything is gone!

With the Clintons, distinctions and finer delineations are often employed to dance away from trouble.  Let's keep in mind that, as Secretary of State, Hillary Clinton had obligations to preserve the record as the head of a cabinet agency and a key participant in our nation's foreign policy.  Whatever selection process was employed to determine which emails she turned over was entirely of her choosing.  There has to be suspicion in this approach that something could have been left out, intentionally or unintentionally.  At best, the preservation of email was handled poorly, without transparency, leaving a lingering cloud over the completeness of the record and underlying facts. 

So, the government, Congress and history are left with what Hillary Clinton determined it should have.  Concurrently, this whole situation revealed that the government generally has been doing a very poor job at turning over the records required by law to be sent to the National Archives.  As part of its coverage of Hillary Clinton's email, in March The New York Times reported:

"But the State Department disclosed on Friday that until last month it had no way of routinely preserving senior officials’ emails. Instead, the department relied on individual employees to decide if certain emails should be considered public records, and if so, to move them onto a special record-keeping server, or print them out and manually file them for preservation."

Slate has a further commentary on this more dismaying revelation in its post "The Real Scandal Behind Hillary Clinton’s Email."  Fred Kaplan's piece makes Hillary Clinton's situation truly secondary to the more pervasive loss of information:

"The Times story then returns to the saga of Clinton’s private email account, but the big, truly gasp-worthy story for the ages lies in those two sentences. The State Department is doing nothing to retain public records. Neither, others tell me, are the other federal bureaucracies. As a result, our history is vanishing into the ether. Major decisions—cataclysmic events—are happening all around us, but their causes may never be known."
Certainly email can be as deceiving or ambiguous in interpretation as any other communication --- often only a partial narrative without a fuller context.  And certainly Hillary Clinton is entitled to privacy with respect to personal email.  In choosing to use her private server for both governmental and personal communication, however, Hillary Clinton created a difficult situation with respect to knowing what was contained in her governmental communication.

The process of history, however, should not and does not operate like Fox News.  Proper historic analysis is not "spin" in a 24 to 48 hour news cycle.  It takes pieces of the puzzle and tries to put them together in a coherent, cogent analysis of what happened.  So every piece counts in that analysis.  Without them the puzzle has empty spots, like the gaps in Shakespeare's life, which if filled, would perhaps prove critical to understanding the entire picture.

At worst, what has happened is destruction of the record of history.   At best, what happened is a careless disregard for history in favor of temporary expediency, an appropriation of independent judgment about what is important and what is not.  Either way, history may have been robbed of information that might have resulted in fuller understanding of what happened during Hillary Clinton's tenure as Secretary of State.  In effect, Hillary Clinton has created at least a "known unknown," something similar to Nixon's "eighteen minute gap."   A result could be that we repeat the mistakes of the past.

Friday, December 5, 2014

Flashbyte: CAPTCHA: Are You Gort or Gnut?

PCMag reports on December 3, 2014 that Google has eliminate CAPTCHA, replacing it with a simple yes/no check box to the question "Are You a Robot?"  CAPTCHA is a "challenge response" test designed to detect spammers and other non-human computer automated (robotic) programs from clogging online ques.  An example would be a robotic program trying to purchase concert tickets for a ticket scalper.

This solution seems so simple it poses the question "why did it take so long" to figure it out.

So are you Gort or Gnut?  Yes ____  No _____

(Disclosure:  The author has stock in Google, but did not use a robotic program to purchase it (although the author's broker certainly may have used a computer in the transaction).)

Bitcoin and FBAR

Bitcoin may seem a bit exotic for most of us. Bitcoin is an electronic currency often associated with speculators and users interested in disguising their payment exchanged for illicit goods but it is used in legitimate commerce as faster, cheaper way to make payments across borders, skipping over currency conversions and exchange rates through commercial banks.  As such, Bitcoin represents something that we may see as increasingly useful for legitimate purposes, even in personal transactions.

The IRS seems to think Bitcoin warrants serious consideration, particularly in its efforts to track offshore funds held by U.S. taxpayers.  Now, Bloomberg BNA reports:

Taxpayers may soon have to report bitcoin and other virtual currency accounts held in foreign exchanges to the IRS as the agency's focus on foreign assets sharpens, experts tell Bloomberg BNA. They say there is a strong possibility that bitcoin accounts could fall within the scope of assets individual taxpayers must reveal to the IRS on the Report of Foreign Bank and Financial Accounts (FBAR). Eventually, experts say, it is even possible that the foreign exchanges themselves may be considered foreign financial institutions that have to report the accounts to the IRS under the Foreign Account Tax Compliance Act.
FBAR and FATCA are major efforts to track accounts across borders.  Also associated with this effort is FATFA, the Financial Action Task Force on money laundering.  The United States actually lags behind much of the rest of the world in the effort to gain more transparency with respect to financial accounts and transactions.  This is partly due to the strongly imbedded American legal principle of client confidentiality.  International pressure gradually is forcing change here.

The IRS considerations are a part of this broader effort.  For more information, see:

IRS News Release 2014-68 06/02/2014.

Final Regulations Expand on FBAR Reporting for Trusts,
Charles Rubin and Jenna Rubin
Estate Planners Alert Newsletter (RIA)

FBAR and FATCA Compliance in the Age of Digital Currencies, Rajiv Prasad, J.D., LL.M., Los Angeles, Published 05/01/2014.


FlashByte: Getting Mircosoft 360 Into Your Life

I have written before about the changes at Microsoft since Satya Nadella took over as CEO (Changing of the Guard (Have Things Changed?).   Under Nadella, Microsoft has moved rather rapidly to reshape its relationship to mobile computing.  Earlier Microsoft announced that its most popular software (Word, Excel, etc.) now would be available as free applications for mobile platforms.  This placed Microsoft software products on many mobile devices and helped to stem migration away from Microsoft desktop software for businesses and individuals who wanted integration across desktop and mobile computing platforms.  At the same time, Microsoft has continued to improve the desktop products used by many businesses.

Now comes the announcement that mobile users will get free basic access to Microsoft 360. (Microsoft will continue to charge a subscription fee to access advanced features.) Microsoft 360 essentially is a hub through which desktop and mobile applications can share work product back and forth.  This announcement is a big step toward capturing more users on iPhones and iPads. It also is another strategic move to make Microsoft a meaningful player in computing beyond the desktop.

Microsoft products are still a fundamental part of computing in both the office and home.  While software from others plays some role, Microsoft has continues to dominate operating systems on desktops and continues refine its software suite.  Its current versions of Outlook, Word and Excel are very functional and will become much more important now that they can be used more effectively on all mobile computing devices.

Ultimately, this announcement is going to drive other companies toward greater and better integration of software.  For consumers faced the dilemma of different software in the office, at home and on mobile devices, this strengthens Microsoft's hand in trying provide one application platform that will cover the full spectrum.

(Disclosure:  The author owns stock in Microsoft, but way, way, way, way fewer shares than Steve Ballmer.)

Tuesday, November 4, 2014

. . . . I'll Be Watching You.

Every breath you take
Every move you make
Every bond you break
Every step you take
I'll be watching you

Every single day
Every word you say
Every game you play
Every night you stay
I'll be watching you

     - Gordon Sumner  

In 1984, George Orwell depicted a repressive, totalitarian society under constant surveillance by the government.  We now live in an age in which there is much concern about government surveillance.  In the wake of the revelations of Edward Snowden, no doubt there are fundamental questions for any free society on where the boundaries lie between the right to privacy and the government's responsibility to protect its people.

In the Orwellian world, people expected Big Brother to be watching.  In fear of this, they repressed expression.  It was a world in which secrecy was operative down to the most common elements of daily life.  People lived in fear of reprisal if they freely expressed themselves.  In modern free societies today, the opposite is far more often the norm.  Although the government is watching and listening to us, we seemingly have little restrain in, and only moderately more concern over, what we reveal publicly about ourselves.

There are considerations which may give us pause about such openness of expression.

Some years ago, Great Britain launched a community surveillance system through a closed circuit cable network know as CCTV.  The idea was to place a greater police presence in neighborhoods by using technology to replace manpower.  Instead of more policeman walking the streets, the ever-present cameras would keep watch over public safety.  This prompted cries of "Big Brother" and debate over the scope of government power to watch over what, after all, were public activities.

In 2013, the British newspaper The Telegraph reported that there now was one CCTV camera for every 11 people in the UK.  The Telegraph went on to quote Nick Pickles, the director of the privacy campaign Big Brother Watch, as saying: “This report is another stark reminder of how out of control our surveillance culture has become."

By comparison, the British newspaper The Guardian reported in 2011 that the ratio of surveillance network of closed circuit camera to people was one camera for every 32 people.

In the United States, we may not have reached such ratios yet (if anyone really knows), but we are under surveillance.  An example is a Reality Byte article (Big Brother Part I) from 2013 about cameras and voice recorders on the Baltimore MTA buses.  Baltimore City is also known for the "blue light cameras" that populate corners in some of its neighborhoods.  The closed circuit cameras serve the same purpose as those in the UK, keeping an eye on the streets.  Let's not forget the infamous "speed cameras" that keep watch over intersections for travelers exceeding the speed limit.

When the Chicago police let loose on demonstrators in Grant Park during the 1968 Democratic National Convention, the protesters chanted "the whole world is watching" as short-hand means for saying that the "police riot" would not go unnoticed.   Indeed, Mayor Daly was less than happy that his brutal heavy-handed police state tactics were captured on national television.  Hubert Humphrey may have been even less pleased.

Are we becoming a society that wants to share everything? There is the seemingly endless social media barrage of Facebook check-ins, selfies and photographs, Twitter and Tumblr posts, Instagram photographs and Pinterest boards.  The Internet has become the scrapbook of our modern lives.

Harmless you might think, just social interaction on the web.  Are we really thinking at all about how much information about our lives these ubiquitous postings contain?  Locations, associations, random thoughts, opinions, political views.  Photographs of conduct that more reflective thought might suggest we not share, even with our "friends," as they may slip out into wider circulation.

Pause to consider where the legal and societal boundaries should be drawn when we so freely share our lives.  Start with a somewhat more well defined example from recent headline news.  You may recall that "hackers" recently spread across the Internet intimate photographs of actress Jennifer Lawrence.  Reports said that the hackers targeted as many as 101 celebrities. These were not images that Lawrence had shared publicly, but private images stored on a personal device or on the Internet, in the "cloud" (some thought "iCloud"), which the hackers had accessed and made public. Without permission.  Illegally.  That is, the hackers stole them.

Hackers, for lack of a better term, often may seem like, and may often be in many situations, Internet whistleblowers -- revealing information on wrong-doing, violations of rights, including our human rights and rights to privacy.  Fundamentally, they are appropriating information over which they do not have rights.  This may seems useful socially or politically, but it still breaking the rules.

The societal balance here is an uneasy one. Some may applaud Edward Snowden for the revelations that he made, deeming his motive as serving the greater good, but fundamentally, what he did broke the code of secrecy.  Do we feel that same about the hackers that have made off with individual financial information from the computer of Target or Home Depot?  Would we feel the same with regard to someone accused of espionage for a foreign government who stole important government information?  Consider Julius and Ethel Rosenberg or Kim Philby.

And what of corporate espionage?  Do we think that it is noble to undermine legitimate research and corporate business practices by letting trade secrets be stolen or sold without permission?  It may be a stretch far beyond legal fiction to say that corporations are people, but established laws of copyright, patent and trademark protection are designed to preserve the rights of those who develop intellectual property.

So, it is right to judge these "piracies" based on motive?  White hats and black hats?

Let's return to those who hacked and distributed pictures of Jennifer Lawrence.  These pictures were most likely held in storage on a cellphone or in the "cloud".  Apple has flatly stated that its iCloud storage was not hacked.  Clearly, they were not "public," however, and Lawrence had a reasonable expectation that they would remain stored and protected -- in a word "private."

The debate, if there is one here, has nothing to do with why these photographs were taken.  It has everything to do with the expectation of privacy and the violation of that right.  To use a more conventional example, if you put your money in a bank, you have reasonable expectation that it will stay there until you take it out.  We have laws that regulate banks and insure deposits.  If someone robs the bank (or hacks your account) they are stealing your money.

Because we recently have come to look at financial institutions with great skepticism, perhaps there is a better analogy.  Your home is filled tangible items like pictures.  If someone breaks into your home, invades your privacy, and steals your pictures, they have stolen something from you.  The value of the pictures does not matter.  Whether the thief ever profited from the theft does not matter.  Someone has taken something from you.

So too, hackers have stolen what belonged to Jennifer Lawrence, not to them.

How do we draw the lines in this debate, in an open society in which we seem most often to be giving away so much information for free?  In the September 22, 2014 issue of The New Yorker, Nick Paumgarten wrote an insightful article entitled "We Are The Camera," a profile of the Go-Pro phenomena.  

A Go-Pro is a small portable camera used most frequently by athletes and sportspersons to capture their own physical endeavors. Video from these cameras has become ubiquitous in the sporting world and extremely popular on Internet video sharing sites and social media like Facebook.  Go-Pro footage also has made its way into documentary films.

Paumgarten's article is partly a business saga of Go-Pro's rise from a start-up with humble beginnings, its development of the iPhone of first-person video cameras, and its initial public offering on Wall Street.  Wrapped around this business story, however, is another more fascinating examination of extreme self-documentation and self-promotion.

Because of their first-person perspective, Go-Pro cameras are purchased and used to record the user's personal experiences:  a ski or snowboard run, a mountain bike descent, a kayak trip, undersea experiences, skydiving, etc.  Although these cameras can document amateur attempts, the first experiences of novices, etc., the footage most eagerly being sought and shared may be best described as "extreme sport."

The Go-Pro phenomena illustrates several interesting points.  Some footage no doubt ends up only on home computers and private family viewings.  What is driving Go-Pro's business success, however, is not the home video library, but the desire of many users to share their exploits on social networks and beyond.  What emerges is content, which Go-Pro is mining as part of its business model.  As of September 30, 2014, Go-Pro seems to be doing rather well.

As Paumgarten's article pointedly illustrates, athletes who once pursued the personal achievement of their sport now are becoming filmmakers -- on a quest to capture themselves in action with the best, most exciting footage.  We, the armchair spectators are the audience.  It may begin by watching a snowboarding run by a relative or boyfriend, but the Internet is filling up with ever more adventurous footage.

Go-Pro and others are using this Internet video traffic to make money.  Yes, Go-Pro pays some people to be "ambassadors," but largely to promote others to buy cameras and share experiences.  As with much of the social sharing on the Internet, the material being shared (pictures, videos, music, etc.) is largely produced for little or no compensation and the sharing sites are making money off of advertising or subscription fees.  This exhibitionism (in some cases extreme) is being mined to make money.

This is not necessarily new.  This summer I read Bill Bryson's One Summer, a snapshot of the summer of 1927.  A recurring sub-theme is how the events of that summer (Lindbergh's triumphant reception after flying from America to Paris, Babe Ruth setting his home run record, notorious murder trials, flag pole sitting, gangsters, even the prolonged vacation of the seemingly uncharismatic President Coolidge) were constant sources of content for the reigning media (newspapers from The New York Times to the tabloids of the day) and the infant radio and talking picture industries.  We love to devour glimpses of worlds beyond our own.  Since the earliest cave paintings and hieroglyphs we have recorded large and small pieces of our activities.  Mass media simply carries this to broader audiences.

So where does this leave us?  The photographs on our cellphones should have a reasonable expectation of privacy.  (The current SCOTUS may think otherwise, of course.) What we openly share with the world (or a part of it) likely is a different story.

Returning to Nick Paumgarten's article in The New Yorker, he concludes with an instructive story of three "jumpers" -- the extreme sport of jumping off tall structures, in this story, the new World Trade Center One in New York City.  (For some context here, in 1974 French high-wire artist Philippe Petit strung a cable at 1,350 feet above the ground between the original Twin Towers of the pre-9/11 World Trade Center and walked across it a for 45 minutes.  In so doing, he also walked into history (and fiction)).

In Paumgarten's article, in September of 2013, after by-passing security to reach the top of the new World Trade Center One, with Go-Pros mounted and rolling, two jumper leaped from the tower and parachuted to the ground (with a third as a lookout).  A bystander on the ground saw them and called 910.  In a somewhat staggering fact, Paumgarten reveals that the police reviewed video from "more than four thousand working security cameras and license-plate scanners below Canal Street" in NYC and eventually identified the get-away car.  The jumpers turned themselves in.  Only then did they put their video on the Internet.  Also somewhat astounding is that Go-Pro was not interested in the footage.

Perhaps here we have the perfect storm.  Submitted for your consideration: Three individuals clearly intent on doing something illegal, who filmed themselves doing so, although not intending to publicize their acts, only memorialize them.  A police investigation using publicly-placed surveillance camera footage to track down the suspects.  Likely there is little argument that the Go-Pro video, once posted on the Internet, has any expectation of privacy.  In between the extremes, however, there should be much to consider -- by all who "share" their experiences, either intentionally or unwittingly.  You never know who ultimately may be watching you.