The Daily Parker

I'm about to head to SFO after this very-quick trip to California. My sleeping Surface will have these articles waiting for me to read:

• The Economist's Gulliver blog grumbles about airlines squeezing bathrooms to make room for more seats on planes.
• The Atlantic has a history of how the Agile Manifesto came about.
• In this era of heightened awareness about sexual harassment, it's comforting to know some Silicon Valley companies continue quaint traditions like hiring models to pose as party guests.
• New fiction from New York magazine.

And finally, check out this recruiting video from the New Zealand police (via Deeply Trivial):

New Republic has excerpted How Democracies Die, by Steven Levitsky and Daniel Ziblatt, to be published this January. Salient points:

If constitutional rules alone do not secure democracy, then what does? Much of the answer lies in the development of strong democratic norms. Two norms stand out: mutual toleration, or accepting one’s partisan rivals as legitimate (not treating them as dangerous enemies or traitors); and forbearance, or deploying one’s institutional prerogatives with restraint—in other words, not using the letter of the Constitution to undermine its spirit (what legal scholar Mark Tushnet calls “constitutional hardball”).

Donald Trump is widely and correctly criticized for assaulting democratic norms. But Trump didn’t cause the problem. The erosion of democratic norms began decades ago.

In 1979, newly elected Congressman Newt Gingrich came to Washington with a blunter, more cutthroat vision of politics than Republicans were accustomed to. Backed by a small but growing group of loyalists, Gingrich launched an insurgency aimed at instilling a more “combative” approach in the party.

Though few realized it at the time, Gingrich and his allies were on the cusp of a new wave of polarization rooted in growing public discontent, particularly among the Republican base. Gingrich didn’t create this polarization, but he was one of the first Republicans to sense—and exploit—the shift in popular sentiment. And his leadership helped to establish “politics as warfare” as the GOP’s dominant strategy.

If, 25 years ago, someone had described to you a country where candidates threatened to lock up their rivals, political opponents accused the government of election fraud, and parties used their legislative majorities to impeach presidents and steal Supreme Court seats, you might have thought of Ecuador or Romania. It wouldn’t have been the United States of America.

The rest is history. Let's just hope that it's the history of a successful republic, not a Weimar one.

The Consumer Financial Protection Bureau's director resigned last week and named his chief of staff, Leandra English, acting director. Citing a statute predating the Dodd-Frank Act (which created the CFPB), the Trump Administration appointed the current OMB Director, Mick Mulvaney, to run the CFPB.

The result is chaos:

On Monday, Mulvaney occupied the CFPB director’s office, dispensed excellent New England doughnuts and emailed the agency staff to “disregard any instructions you receive from Ms. English in her presumed capacity as Acting Director.” English, for her part, sent her own email greetings to agency staff — and filed a lawsuit calling Mulvaney “the person claiming to be acting director” and herself “the rightful director” of the CFPB.

The legal question turns on whether the FVRA gives the president an option for appointing its head — i.e., the deputy or someone else — or whether the text of Dodd-Frank forecloses that option. The FVRA says it is the “exclusive means” of filling a position, except if another statute specifies a particular acting successor. English’s proponents argue that Dodd-Frank does precisely that. Better yet, in doing so it uses the word “shall,” not “may.” That word “shall” is significant, legal scholars such as Marty Lederman emphasize.

The Office of Legal Counsel in the Justice Department, by contrast, issued an opinion defending the president’s right to use the FVRA procedure. Perhaps more surprisingly, so did the CFPB’s own general counsel Mary McLeod. Quoting an earlier Office of Legal Counsel opinion, McLeod concluded the fact that the FVRA “is not exclusive does not mean that it is unavailable.”  That is to say, the FVRA may not be the only way to handle the matter, but it is a possible (an “available”) way, and it’s up to the president to make the call — as other legal scholars such as Adam White emphasize.

On Tuesday, a district court judge declined to grant a temporary restraining order against Mulvaney’s claim to the CFPB throne. That does not settle the merits of the case, of course. And in the meantime, other subplots abound.

One is that the judge in the case, Timothy Kelly, was appointed by Trump and only took the bench in September.

The whole analysis is worth a read. Because like just about every other action of the current administration, it's bloody insane.

My current project involves military enrollment, so I am following the story of the Military Accessions Vital to the National Interest (MAVNI) program, recently suspended by the Pentagon:

Defense Secretary Jim Mattis said Friday that he supports reactivating a program designed to attract foreign military recruits who agree to serve in exchange for fast-tracked U.S. citizenship.

Speaking with reporters at the Pentagon, Mattis said the Military Accessions Vital to the National Interest program, or MAVNI, was suspended a year ago and additional security measures were put in place to guard against “espionage potential” among U.S. military recruits born in other countries. Those new regulations left the program paralyzed, ending a reliable stream of high-quality troops.

“We are taking the steps obviously to save the program, if it can be saved,” Mattis said. “And I believe it can.”

The MAVNI program has produced more than 10,400 troops since 2009 — personnel who possess language and medical skills deemed vital to military operations and in short supply among U.S.-born troops. The military continues to process those who enlisted before the program was suspended.

It may seem odd that people who enlisted over a year ago still require processing, but this is pretty normal. The Delayed Enlistment Program (DEP) affects nearly all applicants as military needs and space in Basic Military Training (BMT) and advanced schools are both limited. People who enlist can take up to 545 days to ship.

Also, an interesting bit I just learned, if an alien enlists in the DEP and then drops out before shipping to BMT, that person is forever ineligible for US citizenship (8 USC 1426). Also see 8 USC 1429 for how to become a naturalized citizen through military service.

First, New Republic's Jeet Heer calls President Trump "truly the first TV president and a harbinger of the decline in intelligence" in American politics:

While earlier presidents, notably John Kennedy and Ronald Reagan, benefited from being telegenic, they were still tied to an earlier, pre-television world in ways that Trump isn’t. (If Kennedy was the magazine-star president, Reagan was the film-star president.) He’s a pure product of the age of television, someone whose mental horizon is the screen. And television isn’t just a passive medium for Trump, his main source for understanding how Americans think. As the star of the long-running reality show The Apprentice, where he played the tough, no-nonsense boss who relishes firing people, Trump actively used TV to shape how millions of Americans think of him.

The key insight of the McLuhan school is that print culture is deliberative, while television is performative. Typographical fixity preserves, and gives a certain permanence to, written thought. It doesn’t just transmit information; it creates habits of thought, and encourages the cross-examination of ideas. On television, by contrast, everything is in a perpetual present, an endless flux. No wonder Trump, a master of television, has no permanence of thought. He shifts his positions depending on opportunistic ambitions or passing whim, sometimes motivated by nothing more than a desire to echo whom he is talking to. Indeed, sometimes his ideas are little more than echoes of what he sees on Fox.

In last year’s election, nearly 63 million Americans supported a presidential candidate who was proudly post-literate. This is a testimony to the rising right-wing anti-intellectualism in the U.S., where being well read and well educated is not to be admired—or even something to aspire to—but rather bestows the black mark of elitism. The question remains: Is this a passing trend, or just a sign of things to come? The dumbing-down of American life, as traced by McLuhan and his descendants, suggests the latter. Just as Bush seems downright scholarly compared to Trump, we may one day look back at Trump and admire his ability to follow a teleprompter.

Meanwhile, Josh Marshall sounds another alarm at Trump's increasing militarism and always-present authoritarianism:

What we’re seeing today from President Trump is a very specific danger with the militarization of civic culture: an anti-democratic leader can use military sacrifice as a totem to squelch dissent.

[A]s [a Twitter image of a disabled Marine in uniform] is used here, you can see the whole mindset, use of loss and blood as a cudgel in its most brutal form. The act of protest is enrolled as a specific disrespect of this man who has had his body ripped apart in military violence. Images like this, combined with these words, are meant to inspire rage at the targets of the attack.  Guilt, admiration and vicarious horror are transmuted not simply into opposition but rage at dissenters.

[T]he weaponization of betrayed military sacrifice is a common, almost universal feature of rightist political movements.

Yep. And it works, if enough of the polity believes it. I hope we can get through this ugly phase of our history intact. And I'm not even commenting on James Fallows' shock at Trump railing on about black NFL players.

Via Andrew Sullivan's essay today in New York, Brookings released a poll this week that shows disturbing trends among college students' attitudes about free speech:

[A]mong many current college students there is a significant divergence between the actual and perceived scope of First Amendment freedoms. More specifically, with respect to the questions explored above, many students have an overly narrow view of the extent of freedom of expression. For example, a very significant percentage of students hold the view that hate speech is unprotected. In addition, a surprisingly large fraction of students believe it is acceptable to act—including resorting to violence—to shut down expression they consider offensive. And a majority of students appear to want an environment that shields them from being exposed to views they might find offensive.

We don’t need to turn middle and high school students into experts on constitutional law. But we can do a better job of giving them a fuller explanation of the scope of the First Amendment, and the fact that it protects the expression of offensive views. And, I would hope that we can do a better job at convincing current and future college students that the best way to respond to offensive speech is with vigorous debate, or peaceful protest—and not, as many seem to believe, with violence.

Sullivan thinks about the results:

Today’s students neither comprehend nor support the very concept of free speech, which is foundational to a liberal democracy. A full 19 percent even believe that physical violence is now justifiable to shut down speakers who engage in the vaguely defined term “hate speech.” That’s one in five students endorsing physical coercion. Antifa really is making headway, isn’t it? A small majority, 51-49, supports shouting down speakers you disagree with — and that goes to 62 percent of students who identify as Democrats.

We often discuss these things in the media without understanding the core ideas that animate them. But it’s important to understand that for the social-justice left, there is nothing irrational about any of this. If you take their ideas seriously, oppressive speech is violence and self-defense is legitimate. Violence is therefore not some regrettable incident. Violence to achieve liberation is a key part of the ideology they believe in.

Put another way, intolerance for opposing views is no longer just a feature of the right.

Credit reporting agency Equifax reported last week that thieves had made off with 143 million customer records:

According to a person familiar with the breach investigation, Equifax appears to have been targeted initially because the company keeps on file millions of active cards, belonging to people who pay $19.95 or more per month to have Equifax monitor their credit reports and alert them to potential fraud. The hack, which the company says took place in late July, put as many as 143 million consumers -- or half the U.S. population -- at risk.

The person, who requested anonymity to discuss the ongoing investigation, said the web application the attackers used to breach Equifax’s corporate network granted access to both the credit card files and back-end systems storing the exhaustive data profiles on consumers. Those profiles include Social Security numbers, driver’s license numbers and other sensitive information, Equifax said Thursday in a statement.

Criminals took advantage of a “U.S. website application vulnerability to gain access to certain files” from mid-May through July of this year, Atlanta-based Equifax said. The intruders also accessed dispute documents with personal identifying information for about 182,000 consumers. Credit card numbers for about 209,000 consumers were also accessed, the company said.

“You would expect these guys to have compartmentalized this data far enough away from a web server -- that there would not be any way to directly access it,” said Tim Crosby, senior consultant with security-assessment firm Spohn.

Knowing how large companies work, and knowing about the diffusion of responsibility principle, and having a healthy belief in the power of governments to correct for bad incentives, I can't say I'm surprised. Neither is the Atlantic's Ian Bogost:

There are reasons for the increased prevalence and severity of these breaches. More data is being collected and stored, for one, as more people use more connected services. Corporate cybersecurity policy is lax, for another, and sensitive data isn’t sufficiently protected. Websites and apps, which are demanded by consumers as much as they serve the interests of corporations, expose paths to data that should be better firewalled. Software development has become easy and popular, making security an afterthought, and software engineering has failed to adopt the attitude of civil service that might treat security as a first-order design problem. And hacking and data theft have risen in popularity and benefit, both as an illicit business affair and as a new kind of cold warfare.

Of course Equifax, as would be expected of a normally-functioning American corporation, bungled the response:

On Thursday night, I entered my last name and the last six digits of my Social Security number on the appropriate Equifax web page. (They had the gall to ask for this? Really? But I digress.) I received no “message indicating whether your personal information may have been impacted by this incident,” as the site promised. Instead, I was bounced to an offer for free credit monitoring, without a “yes,” “no” or “maybe” on the central question at hand.

By Friday morning, this had changed, and I got a “your personal information may have been impacted by this incident” notification. Progress. Except as my friend Justin Soffer pointed out on Twitter, you can enter a random name and number into the site and it will tell you the same thing. Indeed, I typed “Trump” and arbitrary numbers and got the same message.

So, yes, your worst suspicions are now confirmed. Equifax may actually make money on this breach. We would expect nothing less from the credit reporting industry, with which few of us would choose to do business but nearly everyone has to sooner or later.

The solution many people recommend is to freeze your credit reports—for a fee, multiplied by 4 to make sure you get all of the credit-reporting agencies. (Everyone has heard of Equifax, TransUnion, Experian...and Innovis. You've heard of Innovis, right? The one that doesn't offer a free annual report?)

Almost immediately, a team of lawyers including a former Georgia governor filed a class-action lawsuit. So have a group of plaintiffs in Oregon. We can also expect an action from the SEC relating to at least three Equifax managers selling their stock right before the announcement.

This situation is why we have government. The incentives for credit-reporting agencies run directly counter to the incentives of the hundreds of millions of people whose data they store. (You're not Equifax's customer; commercial enterprises are.) Without government regulation and higher liabilities for data breaches, this will just keep happening. But that's not "business-friendly," so the right-leaning American and British governments will dither for another few years until someone publishes the leaders' own data. Because their incentives are bad, too.

It took less than a week for two separate entities to challenge President Trump's pardon of racist thug former Maricopa County, Ariz., sheriff Joe Arpaio. Via Jennifer Rubin, the Federal judge who convicted Arpaio of criminal content has stopped short of vacating the conviction:

Instead she ordered Arpaio and the U.S. Department of Justice, which is prosecuting the case, to file briefs on why she should or shouldn't grant Arpaio's request.

Bolton has scheduled oral arguments on the matter for Oct. 4, the day before Arpaio was supposed to be sentenced.

There is case law that says a pardon implies an admission of guilt, and that will have to be argued in open court.

Rubin adds:

Meanwhile, Protect Democracy, an activist group seeking to thwart Trump’s violations of legal norms, and a group of lawyers have sent a letter to Raymond N. Hulser and John Dixon Keller of the Public Integrity Section, Criminal Division of the Justice Department, arguing that the pardon goes beyond constitutional limits.

Put simply, the argument is that the president cannot obviate the court’s powers to enforce its orders when the constitutional rights of others are at stake.

Lurking in the background is the potential for Trump to pardon associates involved in the probe of possible collusion between the Trump campaign and Russian officials and the possible obstruction of justice that followed. The Arpaio pardon may well have been an attempt to signal to those officials and ex-officials that they can resist inquiries with the assurance that Trump will pardon them. (Recall Trump’s unprecedented remarks that Michael Flynn should hold out for a grant of immunity.) Using the pardon power to obstruct an investigation into his own possible wrongdoing would signal a constitutional crisis.

A crisis that the Republicans in Congress could resolve simply by, I don't know, doing their fucking jobs. But the Party of Lincoln is happy to allow the President to destroy his office for personal gain, as long as they get their tax cuts.

Makes you long for the more-ethical days of Caligula and Nero, doesn't it?

On Tuesday, a Federal judge in Chicago dismissed with prejudice a case against Zillow that alleged its "Zestimates" made houses harder to sell:

In the suit, first filed in May, Glenview homeowner and attorney Barbara Andersen alleged that the estimates Zillow posts with for-sale listings essentially act like an appraisal of exact market value. Under Illinois law, only licensed appraisers can issue an appraisal. Andersen's suit alleges Zillow is engaging in illegal practices.

Not so, U.S. District Judge Amy St. Eve wrote in her dismissal. "The word 'Zestimate'—an obvious portmanteau of 'Zillow' and 'estimate'—itself indicates that Zestimates are merely an estimate of the market value of the property," St. Eve wrote.

"We always say that the Zestimate isn't an appraisal," [Zillow's] Emily Heffter told Crain's earlier this year. "It's a starting point that people can use when they're working with a professional appraiser or a professional agent to determine the home's value."

St. Eve also wrote that Zillow's estimates do not constitute an invasion of privacy because they are based on public records, with additions submitted by the homeowners if they choose to.

It zeems obvious, when you think about it.

The organization will no longer defend armed hate groups:

The change in policy followed the ACLU of Virginia’s decision to file suit to ensure that an assortment of white supremacist groups could hold the now-notorious “Unite the Right” rally earlier this month in Charlottesville’s Emancipation Park. While the ACLU wasn’t responsible for the fatal violence that ensued, the entire organization was convulsed in the fallout. One ACLU of Virginia board member resigned in protest. In a historic gesture, three California affiliates broke with the Virginia branch and the national organization to condemn the lawsuit. “If white supremacists march into our towns armed to the teeth and with the intent to harm people, they are not engaging in activity protected by the United States Constitution,” they said.

In a statement to the New Republic, an ACLU spokesperson said the new policy will be applied on a “case by case” basis, meaning greater scrutiny will be applied to possible clients. “If we determine that any potential client intends to subvert their rights under the First Amendment to cause violence, we wouldn’t represent them. The First Amendment doesn’t protect violence, that hasn’t changed,” Noa Yachot said.

Interesting. And sad. But necessary.