The Internet

McAfee And Me: An Ethics Rant

/ Jack Marshall / 29 Comments

I have written here before about my theory that the needless complexity of life, especially involving daily interactions with technology, are driving normal people crazy, and sometimes homicidally crazy. While activists and justly alarmed citizens point to guns and mental health policies to explain murderous rampages by citizens previously regarded as quite and law abiding, insufficient attention is being paid to the ratcheting-up of daily stresses caused by the private and public sectors gratuitously making  daily life unbearably frustrating to navigate, particularly for the less skilled navigators among us.

I don’t expect to snap, but you never know. It is said, I assume apocryphally, that there was a sick drawing New Yorker black humor cartoonist Charles Addams would send to his editor when he was about to have one of his periodic breakdowns, and the magazine would see that he was deposited in his favorite sanitarium in a timely fashion. If you read the message  “AGGGGGGGGGGGGGGGGGGGGGGGGZZZZZKKKKKAAAAARHHHHHYY!”-–and nothing else-–-in a future post, you will know that I have gone full Sweeney Todd (Sweeney in his fury and grief determined that half the human race were so cruel and corrupt that they deserved to die, and that they made the other half so miserable that it was merciful to murder them too) and my immediate neighborhood is in mortal danger. Call the police. I don’t have a gun, but I don’t need one: I’m pretty good with a baseball bat.

If and when that happens, something like my experience yesterday will be the cause.

I have a new netbook, and it included a free 30 day trial subscription to McAfee’s virus protection service. For a week I had been getting obtrusive pop-up ads from McAfee telling me that my protection was about to lapse and my opportunity to purchase a special discounted continuation of the service (Just $39.99, marked down from $89.99!) would soon evaporate. Yesterday was the expiration date, so I decided to accept the offer and sign up online.

I checked the appropriate boxes and filled in all the information, including the credit card data. The attempt to pay was rejected, the screen told me, for my security code, that little three digit number on the back of the card, was incorrect. So I reentered it, after checking it carefully. After much churning and two “preparing your order” screens, I again got the error message. Huh. I tried again. Same thing.

This provoked a mature explosion quite familiar to my wife and dog (the dog hid under the bed), in which I cursed all online purchase, subscription and registration procedures, which inevitably take far longer than they are supposed to, are so complicated that they invite human error, and appear to have been designed by Joseph Mengele as some kind of sadistic experiment. My wife sagely suggested that I try another credit card, since the one I was using had recently been the object of a bank screw-up that ate another several hours of my rapidly dwindling life span. This I did…four times. Every time, the security code was flagged as entered wrongly, which it was not. Finally, I used a third card. Again, no dice, “incorrect data.”

The attempt to pay McAfee $39.99 had now taken about a half an hour. Continue reading →

Unethical Website Of The Month: “Above The Law”

/ Jack Marshall / 21 Comments

above-the-law

Stay classy, Above The Law!

Above The Law, which styles itself a legal profession gossip site and half-baked professional ethics watchdog, has been a useful resource for me on occasion, though the commentary of its writers, particularly lead writer Elie Mystal, has often left a lot to be desired ethically and logically. My last four posts regarding Above the Law, going back a year, have been Ethics Dunce entries, and there easily could have been more.

I used to get Above the Law’s stories sent to my in box, as I had subscribed several years ago. Then I noticed that I wasn’t getting them any more, so I subscribed again. I got notices for a few days, then they stopped. Again I subscribed. Again, my subscription vanished.

I just re-subscribed today, and expect that I will again be cut off.

Ethics Alarms has, it seemed, been “unfriended” by Above The Law, because I have had the impertinence to point out the increasingly lunk-headed ethics confusion and partisan bias of the site. Wow, that’s petty!  That’s also cowardly: the site seems to think that if I don’t know about their frequently misguided posts, I wouldn’t be able to criticize them. In fact, they are mostly right. I have now more than once gone many weeks without noticing the lack of the site’s notices in my e-mail. Life without “Above the Law’ is still rich and full of joy.

I did check today, however, which is when I discovered my latest subscription was gone with the wind. While I was responding positively to the site’s invitation to me to subscribe (for the 4th time), I checked the most recent posts, and saw this, from Elie, naturally…

Praising a recent post by a professor who was criticized for openly supporting Black Lives Matter—a group that declares on its website that the deaths of “Alton Sterling and Philando Castile at the hands of police” were “murders” before any investigation or assessment of the events leading up to the shootings has been completed—Mystal’s post, titled “To Be Honest, I’m In No Mood To Explain #BlackLivesMatter To White People Today” reads in part… Continue reading →

Ethics Hero (And Author Of Perhaps The Best Facebook Post Ever): Palm Beach Florida African-American Police Officer Jay Stalien

/ Jack Marshall / 102 Comments

Jay Stalien

When I read published quotes from police officer Jay Stalien’s Facebook page post, now deservedly in the process of going viral, my immediate reaction was that it was a hoax, a measured and well-researched explanation of the racial unrest surrounding police shootings and the Black Lives Matter movement written by a professional pundit  and placed in the metaphorical mouth of a black police officer to give it added power and credibility. It was, in short, too good to be true.

It is true, however, as well as good. To be presented at this time is an act of courage and civic responsibility by Stalien, and his effort redeems the existence of Facebook and social media, not to mention the internet, as few posts have. In the past, someone like Stalien would have to submit a column to a newspaper editor, and agree to cuts and edits that reduced its effectiveness, if his important observations were to have any impact beyond his living room or workplace. Now he can publish himself. The First Amendment has seldom been better served.

The post is very long, but you should read it all, here.  I will only point out some highlights.

He begins, in part…

The following may be a shock to some coming from an African American, but the mere fact that it may be shocking to some is prima facie evidence of the sad state of affairs that we are in as Humans.

I used to be so torn inside growing up. Here I am, a young African-American born and raised in Brooklyn, NY wanting to be a cop. I watched and lived through the crime that took place in the hood. My own black people killing others over nothing….I used to be woken up in the middle of the night by the sound of gun fire, only to look outside and see that it was 2 African Americans shooting at each other.

It never sat right with me. I wanted to help my community and stop watching the blood of African Americans spilled on the street at the hands of a fellow black man. I became a cop because black lives in my community, along with ALL lives, mattered to me, and wanted to help stop the bloodshed.

As time went by in my law enforcement career, I quickly began to realize something. I remember the countless times I stood 2 inches from a young black man, around my age, laying on his back, gasping for air as blood filled his lungs. I remember them bleeding profusely with the unforgettable smell of deoxygenated dark red blood in the air, as it leaked from the bullet holes in his body on to the hot sidewalk on a summer day. I remember the countless family members who attacked me, spit on me, cursed me out, as I put up crime scene tape to cordon off the crime scene, yelling and screaming out of pain and anger at the sight of their loved ones taking their last breath. I never took it personally, I knew they were hurting. I remember the countless times I had to order new uniforms, because the ones I had on, were bloody from the blood of another black victim…of black on black crime. I remember the countless times I got back in my patrol car, distraught after having watched another black male die in front me, having to start my preliminary report something like this:

Suspect- Black/ Male, Victim-Black /Male.

Then Officer Stalien, in the same powerful style, proceeds to answer typical complaints from the black community by presenting  “FACTS” that too many African-Americans, elected officials, journalists and partisans refuse to believe, accept, or comprehend: Continue reading →

Hey Uber: Shut Up And Drive.

/ Jack Marshall / 20 Comments

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Uber, the transportation networking company, now subjects customers seeking to book a ride to a directive calling on them to think about gun violence before they continue the process. When users open the Uber app, they see a message reading, “Our hearts go out to the victims of this week’s terrible gun violence….As we move around our cities this weekend, let’s take a moment to think about what we can do to help.”  Thusly:

Ubergunviolence2

Okay, here’s what Uber can do to help. Stop referring to law enforcement action, even if it’s excessive, as “gun violence.” Stop referring to racially motivated hits, like the murder of the Dallas police officers, as “gun violence,” as if in some alternate universe where there are no guns, Micah Johnson would have hurled spitballs at the officers to show his contempt. In fact, Uber can shut up entirely.

And stop suggesting that the shooting of two individuals in a police confrontation is equivilent to the assassination of five police officers. How despicable.

We saw this kind of arrogant, obnoxious abuse of the customer/service relationship when Starbucks decided it was appropriate to challenge its customers to have dialogue with 20-something barristas about race. Uber knows how to get me to my destination, supposedly. It has no more expertise regarding social and law enforcement policies than my mail carrier, and if he tells me to take a minute to think about gun violence before I can get my mail, I’m telling him to go to hell.

Uber is showing disrespect for its customers and its customers’ time. The company has no right to rob me of a single moment to force-feed me its anti-gun chairman’s political views, and I would say the same if they were pro-gun sentiments. It’s unethical to make me a captive audience for ten minutes, five minutes, a minute or a second. I’m calling for a ride, not indoctrination, not presumptuous attempted enlightenment, not to be told to save the whales, reduce my carbon foot print, vote for Hillary, or think about gun violence.  Continue reading →

Ethics Observations On FBI Director Comey’s Statement Regarding The Clinton Investigation

/ Jack Marshall / 132 Comments

James Comey

The transcript of FBI Director James Comey’s full remarks on the Clinton e-mail probe follow. I will highlight important sections in bold, and in some cases, bold and red. My  observations will follow.

Good morning. I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.

After a tremendous amount of work over the last year, the FBI is completing its investigation and referring the case to the Department of Justice for a prosecutive decision. What I would like to do today is tell you three things: what we did; what we found; and what we are recommending to the Department of Justice.

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

I want to start by thanking the FBI employees who did remarkable work in this case. Once you have a better sense of how much we have done, you will understand why I am so grateful and proud of their efforts.

So, first, what we have done:

The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

Consistent with our counterintelligence responsibilities, we have also investigated to determine whether there is evidence of computer intrusion in connection with the personal e-mail server by any foreign power, or other hostile actors.

I have so far used the singular term, “e-mail server,” in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways. Piecing all of that back together — to gain as full an understanding as possible of the ways in which personal e-mail was used for government work — has been a painstaking undertaking, requiring thousands of hours of effort.

For example, when one of Secretary Clinton’s original personal servers was decommissioned in 2013, the e-mail software was removed. Doing that didn’t remove the e-mail content, but it was like removing the frame from a huge finished jigsaw puzzle and dumping the pieces on the floor. The effect was that millions of e-mail fragments end up unsorted in the server’s unused — or “slack”— space. We searched through all of it to see what was there, and what parts of the puzzle could be put back together.

FBI investigators have also read all of the approximately 30,000 e-mails provided by Secretary Clinton to the State Department in December 2014. Where an e-mail was assessed as possibly containing classified information, the FBI referred the e-mail to any U.S. government agency that was a likely “owner” of information in the e-mail, so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify the e-mail now, even if its content was not classified at the time it was sent (that is the process sometimes referred to as “up-classifying”).

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

Continue reading →

Fourth Of July Ethics: The Signers, Snopes, And Fact-Checking

/ Jack Marshall / 11 Comments

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I received  this inspiring bit of Americana from an old friend, a Marine and lawyer with a love of history. It’s a screed of unknown origin that has been circulating the internet since the 20th Century. Maybe you’ve seen it too:

The Price They Paid

Have you ever wondered what happened to the 56men who signed the Declaration of Independence?

Five signers were captured by the British as traitors, and tortured before they died.

Twelve had their homes ransacked and burned.

Two lost their sons serving in the Revolutionary Army; another had two sons captured.

Nine of the 56 fought and died from wounds or hardships of the Revolutionary War.

They signed and they pledged their lives, their fortunes, and their sacred honor.

What kind of men were they?

Twenty-four were lawyers and jurists.

Eleven were merchants, nine were farmers and large plantation owners; men of means, well-educated, but they signed the Declaration of Independence knowing full well that the penalty would be death if they were captured.

Carter Braxton of Virginia, a wealthy planter and trader, saw his ships swept from the seas by the British Navy. He sold his home and properties to pay his debts, and died in rags.

Thomas McKean was so hounded by British that he was forced to move his family almost constantly. He served in the Congress without pay, his family was kept in hiding. His possessions were taken from him – poverty was his reward.

Vandals or soldiers looted properties of Ellery, Hall, Clymer, Walton, Gwinnett, Heyward, Rutledge, and Middleton.

At Battle of Yorktown, Thomas Nelson,Jr., noted that the British General Cornwallis had taken over the Nelson home for his headquarters. He quietly urged General George Washington to open fire. The home was destroyed, and Nelson died bankrupt.

Francis Lewis had his home and properties destroyed. The enemy jailed his wife, and she died within a few months.

John Hart was driven from his wife’s bedside as she was dying. Their 13 children fled for their lives. His fields and his  gristmill were laid to waste. For more than a year he lived in forests and caves, returning home to find his wife dead and his children vanished.

So, take a few minutes while enjoying your 4th of July holiday and silently thank these patriots.  It’s not much to ask for the price they paid.

Remember: freedom is never free! We thank these early patriots, as well as those patriots now fighting to KEEP our freedom!

I hope you will show your support by sending this to as many people as you can, please. It’s time we get the word out that patriotism is NOT a sin, and the Fourth of July has more MEANING to it than beer, fireworks, HOT DOGS,  and picnics……

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The purpose and primary message of the post is irrefutably true. Those who signed the Declaration did so at great personal risk and sacrifice. Had the new nation failed in its revolution—and really, it is amazing that it didn’t—all of them would have been hanged as traitors. It was an act of principle and courage, and what happened later is entirely moral luck. The signers would have been no less honorable, remarkable and heroic if every single one of them, by various strokes of good fortune, had become wealthy, powerful, prospered in everything they did and died in advanced years, like Franklin, Adams and Jefferson. Unfortunately, most citizens lack the education, acumen and tools to figure this out, so we get stuff that equates random and uncontrollable misfortune with enhanced virtue. Continue reading →

Yes, That Was A Microaggression

/ Jack Marshall / 14 Comments

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Danielle Brooks, the African-American actress who plays Taystee in “Orange is the New Black,” felt that she had been insulted and racially stereotyped as she boarded a plane this week with a First Class ticket because she is, you know, rich. Thus she used  Twitter to complain about a “microaggression.”

I hate when gate agents look at me like I’ve never flown first class and say “You’re in first class, lucky you!”???? really tho

— Danielle Brooks (@thedanieb) June 30, 2016

The celebrity news site Heat Street mocked her complaint, and the mockery was picked up by some conservative sites, though many in the Twitterverse  supported the complaint. Sneered Ed Driscoll on Instapundit:

The nerve of that gate agent! Making $45K a year and not even having an expensive cadre of writers sculpting her dialogue and a director shaping her performance and a cameraman shooting take after take to get things just so! Incidentally, I wonder if the people who imagine all of these microagressions occurring ever wonder why they just keep happening over and over to them? But, really, as with Alec Baldwin accosting American Airlines stewardesses, what’s the sense of being a leftist one percenter who believes in tolerance and diversity if you can’t publicly attack people who actually work for a living? 

Driscoll’s comment is classic conservative jerkism. Brooks was right; the comment was condescending and based on racial stereotypes, she was right to be insulted, and right to make a public comment that might make others aware of what such a comment conveys. Continue reading →

No, Ashleigh, That Isn’t “Libel,” And Why Are You Hosting A CNN Show Called “Legal Affairs” When You Don’t Know That?

/ Jack Marshall / 5 Comments

Ashleigh-Banfield

In an epic clash of incompetents, CNN’s Ashleigh Banfield challenged Michael Cohen, one of Donald Trump‘s advisers over his retweeting an internet meme that said that Hillary Clinton “murdered” the victims of the Benghazi mission assault.

After the House Benghazi Select Committee released its final report on the 2012 terror attacks, Cohen delivered his tweet featuring this…

Cohen tweet

It is about as stupid, lazy and inflammatory as most political memes, and the fact that Cohen would think it worth circulating tells us all we need to know about both him and the man who pays him, who would have probably tweeted this junk himself if Cohen hadn’t. Remember Cohen? He’s the Trump lawyer who crudely threatened the Daily Beast and went on to proclaim that spousal rape was legal, when it isn’t. Cohen is, by definition, a thug, a creep, and a crummy lawyer. Naturally, he’s also a Trump advisor. (Tell me again how Trump, that keen judge of legal talent,  can be trusted to appoint better Supreme Court justices than Clinton would. Or that Honey Boo-Boo would.)

Sparring with Cohen on her show “Legal Views,” Ashleigh Banfield lectured the lawyer and told him, “This is libel.” thus making exactly as accurate a statement of law as Cohen’s earlier one about spousal rape. It was not libel. It was inflammatory political speech in a satirical context (would anyone think Clinton actually said this, as the meme suggests?) about a public figure, clearly an opinion rather than a statement intended to be taken literally, and no more libel than “Bush lied and people died.” Banfield’s diagnosis was 100% wrong, and the fervor with which it was delivered is the calling card of a Clinton defender. Continue reading →

Johnny Manziel’s Lawyer’s E-Mail Ethics Disaster

/ Jack Marshall / 13 Comments

email mistake

In an article last year inspired by increased attention in the legal profession prompted by Hillary Clinton’s epic incompetence handling her e-mail, New York’s Legal Ethics Reporter last year published “Ethical Implications & Best Practices for Use of Email.” It began with a quiz:

Which of the following statements are true?

A. Email is a wonderful tool for the successful practice of law.

B. Email not only saves time and money, but also allows for prompt communication with clients, colleagues, and opposing counsel.

C. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your Inbox with useless information.

D. Careless use of email can subject the sending lawyer to embarrassment, unhappy clients, lost income, breach of the duty of confidentiality, discipline, or claims of malpractice.

E. All of the above.

The correct answer is E— All of the above.

One reason lawyers are, as a group, far less forgiving of Hillary’s nonsense (and lies) is that her conduct, if it involved a client, and not just a relatively minor institution like the U.S. State Department, would constitute a clear violation of  the ethics rules covering competence and confidentiality. (Let’s ignore, for now, the rules requiring honesty and the avoidance of conflicts of interest.). Work- and case-related e-mail must be handled with care, or disasters occur. One of the lawyers for disgraced ex-NFL quarterback Johnny Manziel just provided a lesson in how that can happen, and it is going directly into my next seminar.

Defense attorney Bob Hinton, representing  Manziel  in a hit-and-run case, accidentally sent an Associated Press reporter an e-mail intended for the athlete’s legal team. The misdirection appears to be the result of an auto-address feature that assumed whom Hinton wanted to communicate with based on the first few letters he typed.

In the memo, Hinton expresses exasperation at the extent of Manziel’s dependence on illegal drugs, and reveals that he has a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in the crash. “Heaven help us if one of the conditions is to pee in a bottle,”  the lawyer wrote. This is a problem, since Manziel is seeking a plea deal that almost certainly would require periodic drug tests. Continue reading →

Why Does Colby College Think That It’s Ethical To Keep A “Bias Incident Log”?

/ Jack Marshall / 14 Comments
Might be time for a new motto, Colby. On the other hand...

Might be time for a new motto, Colby. On the other hand…

Wait…you say that more than a hundred campuses have this or the equivalent?

Oh-oh.

I am scheduled to teach a legal ethics class in the avoidance of bias in the practice of law next year, and I’m already worried. Past engagements of mine on this topic have been popular with attendees, but not always appreciated by my clients. The bar associations that make such training mandatory usually want to get someone to drone on about how lawyers should love Big Politically Correct Brother and search their souls for any germ of an attitude that would make Chris Matthews say they are racist, or the President of NARAL say they are sexist, or a Black Lives Matter activist call them privileged.  In other words, these are often devised as political indoctrination courses, using “bias” as code for “non-conforming thoughts according to progressive orthodoxy.”

I can’t and won’t teach that, because it’s as wrong as it is boring. Bias includes all ideas wedged in our minds that overcome reason and prevent just, even-handed, logical and fair decision-making. Bias makes us stupid, and for lawyers, the kind of bias I’m talking about undermines justice. Ironically, what most proponents of anti-bias courses want to do is instill biases that they and their partisan allies approve of. Once that is done, the Orwellian process is complete. “Bias” then means “not accepting our biases, which aren’t biases because we believe them, and we are good.”  The rationalization involved is 14. Self-validating Virtue.

The news and ethics issues are reaching one of those crisis points for me where everything seems to be connected to everything else, and I am torn whether to write one huge, conceptual post (the ones most readers skip) or a series of single episode posts. Facebook, a topic on its own, is revealing most of my friends whom I would identify as Democrats or progressives as in the grip of a crippling cognitive bias-based malady. Why did they think it was just wonderful for so many elected officials to deliberately ignore the core Constitutional principle of due process? Why did they reflexively attack the British vote to leave the European Union as “racist” or “xenophobic” rather than recognize it as a principled reassertion of their nation’s autonomy and democratic principles? How did freedom of speech, freedom of thought, true civil rights, and democracy itself become so alien to so many supposedly intelligent and self-proclaimed liberal adults?

Don’t worry, I’m coming back to Colby. It really does come down to bad and anti-American education poisoning the culture. In an excellent though disturbing essay on the Ethics And Public Policy website, Stanley Kurtz persuasively argues that U.S. education itself has turned against liberty, resulting in an increasing majority of citizens who do not believe or accept the virtues of core American ideals.

The incident that brought my attention to the Colby Bias Incident Log, which, at Colby and elsewhere, sends a Bias Response Team into investigation mode, was one in which a student was reported for allegedly using the idiom “on the other hand.”

No, this is not a hoax. It is not a joke. And what the fact that I am writing this suggests is far from funny. It is tragic. Continue reading →