iron blogger

My friend and former colleague Paultag has challenged me to participate in a scheme he calls Iron Blogger, which nudges people to blog by fining them $5 per week if they don’t. More posts than usual should follow! And no, this one doesn’t count.

be gentle to their servers and mean to their lawyers

I didn’t like this article about ethical screen scraping very much, and said so on Twitter.

Well, you asked for it.

Screen scraping is the automated collection of information from the web. For our purposes, let’s assume it’s public information. Stuff you can load in your web browser, using an incognito window and a pasted URL. Stuff meant for ungated human consumption.

When might it be unethical to systematically collect this information, which is being published freely? I can think of a few scenarios that might qualify. If your use of the resource makes it unavailable to others, that might be unethical. This could happen if you hammer the server, but it could also happen if you mirror and resell a database that someone has spent money amassing and maintaining, undercutting them and destroying the model that sustains the resource for others.

What if the owner simply doesn’t like the way in which you use their information? Some people think this is a workable way of limiting how information is used. For example, they feel that public tweets shouldn’t be quoted by journalists if the tweets weren’t written with widespread distribution in mind. In a screen scraping context, a realtor site might be fine with you shopping for a home but less excited about your collecting price data to power an analysis of gentrification.

I think that these kinds of implicit rules about how information is used are at best impractical. Well, okay, that’s my diplomatic framing. I really think the sentiment is prudish, illiberal and ludicrous. The transfer of knowledge is not zero-sum and we should err on the side of preserving that miraculous quality. But some people do think along opposing lines.

And although there is very little legal support for their idea that such limitations should be the default way that our society works, it’s certainly possible to impose arbitrary limits on what people do with information you give to them if you can get them to agree to a contract.

This brings us to screen scraping.

You have a right to use information you’ve been told

Liberal society works because facts belong to everyone. Unless you have a very good reason not to, you need to believe in your right to use published information. You need to believe in your right to think and speak freely about the things you have perceived. This is how our civilization works; it’s how our minds work; it’s how reality works. Don’t give up this belief without a fight.

Fuck their contracts

Nearly every website has a terms of service document. These are typically contracts of adhesion that say you can’t use the site at all unless you agree to a ton of fine print, which will often include a prohibition on automated data collection and probably other things you will do in the normal course of using the web and sustaining belief in a modicum of personal rights. They’re also sometimes called “clickwrap” licenses, a rough category of legal agreements that people mindlessly agree to through implicit action when they use software (or when they broke a seal during unwrapping, back when software came in boxes).

This is fundamentally outrageous. You do not enter a contract when you walk into a store or open a book. But the law around websites was born in a later and worse age, when we let them get away with this kind of shenanigan. To a point.

Just because a company puts something in a TOS doesn’t mean it’s legally enforceable. Google probably can’t require you to murder a stranger as a condition of accessing your email, for example. They may not even be able to force Gmail users to permanently forego their right to sue if a self-driving car runs over Fluffy (though Google’s lawyers will certainly try). When the fight lands in front of a judge, who will determine which outrageous overreaches are allowable, Google’s case will be stronger if its lawyers can prove you read and understood the contract terms prior to violating them. I am not a lawyer, and you should consult a real one rather than relying on my advice. But reading the TOS may not do you any favors.

The CFAA is bullshit

Outside of any contracts you mistakenly agree to, the Computer Fraud and Abuse Act is the primary vehicle by which scraping might get you into trouble. Let’s let the EFF explain:

The CFAA is the federal anti-hacking law. Among other things, this law makes it illegal to intentionally access a computer without authorization or in excess of authorization; however, the law does not explain what “without authorization” actually means. The statute does attempt to define “exceeds authorized access,” but the meaning of that phrase has been subject to considerable dispute. While the CFAA is primarily a criminal law intended to reduce the instances of malicious hacking, a 1994 amendment to the bill allows for civil actions to be brought under the staute.

This is a stupid, arbitrary law, and you are potentially violating it every time you use the internet. You should be aware that it exists in the same way that you are aware sharks exist. But you shouldn’t let them stop you from going in the ocean.

Not asking questions is a great way to avoid dumb answers

This is tricky, I know. If a site operator might be excited about your project, getting their permission might unlock better data, save you time, and avoid subsequent fights. But if they’re antagonistic or even just *surprised*, they will instead ask their lawyers how they should respond to your request and their lawyers will (eventually) tell them to say “no”. Then you will have no plausible way to claim that you didn’t know you shouldn’t collect the information. Worse, the publishers will be on their guard.

If you think the site operator might want to work with you, you should ask for their help. If you’re not sure, you should instead ask yourself if you have an ethical claim to the data. The site operator is not necessarily the appropriate arbiter of that question. At Sunlight we encountered endless situations where the site operator was not the information’s rightful owner. Government sites, hosting public information, with robots.txt files forbidding automated collection? To hell with that. It’s wrong.

The stakes matter

I say all of the above blithely and confidently, and I think it’s good advice for the audience to which the original talk was aimed: journalists. It is decidedly not how I approach these questions in my professional life, at least not these days. I work for a private, for-profit enterprise. We’re trying to make money. We have the resources to be careful, to buy licenses, to read contracts, and to be worth suing.

And while I’m proud of how much work our company does to add to the public good, we are not investigative reporters or nonprofit activists. Perhaps more to the point: if we callously take someone else’s information and they come after us with a decent argument about it, no one will shed tears for us.

If you are acting on behalf of a corporation, talk to your counsel, then talk to their counsel, then work out an agreement. Take it from Gawker, getting deposed isn’t as fun as it sounds.

If you are a journalist, a hobbyist, an activist, or really anyone seeking knowledge rather than wealth: scrape that site. Teach us something. Try not to be a jerk about it. It will probably be fine.

Star Wars

I think Ezra’s right about the commercial mechanics of comic book movies (though I think this is partly due to origin stories being the only filmable comic book stories). But this is not what the new Star Wars movie is doing. Or I hope it’s not.

Retelling a story is one thing, but quoting it is another. The Force Awakens isn’t taking the timbers of the original franchise and building a new house around them. It’s self-consciously constructing a scale model.

There are two ways to interpret this choice. One is that Disney has cynically decided that the things that fans love and will pay for are incredibly specific moments: lightsabers Force-flying out of snowbanks, father-son showdowns on perilous catwalk bridges, precision bombing runs to disable shield generators. The evidence for this perspective is the numerous otherwise-pointless fanservice notes that movie invokes (the holographic chess game on the Millennium Falcon comes to mind) and the colossal amounts of money at stake.

The other interpretation is that the series’ new architects are reestablishing the franchise’s structure, rebuilding a framework badly damaged by the careless renovations in the prequels. The only creative advantage to having such structures — cumbersome, constraining sets of rules and obligations — is that you can subvert them. The evidence for this is pretty thin, and basically boils down to JJ Abrams not being a hack and everyone involved being smart and rich enough to want to play the long game.

Wishful thinking means I’m leaning toward the second option, hoping for a Rey dark side turn and subversion of the franchise’s focus on a small royal family by making Finn the new trilogy’s (Force-less) hero. But who knows. As Yglesias says, we won’t know if this new movie was good or bad for some time. Sure was fun, though.

Paris

We had been feeling cross about Uber. This is, by far, the subject about which Steph and I fight the most, as the service’s admittedly poor routing prompts different and conflicting reactions from us. She cannot resist reaching across gaping chasms of culture, language and basic navigational competence to put our drivers on the right path. I prefer, in characteristically nonconfrontational style, to quietly abandon myself to fate, gladly surrendering a few hundred meters or cents if it saves everyone some embarrassment.

This was the first Uber we had taken in Paris–hoofing it from Île Saint-Louis to Canal Saint-Martin seemed unappealing, especially since we’d dawdled longer than we’d planned. Mostly the ride was great. Our driver Radhouan spoke no English but was impeccable at piloting a black sedan while wearing a suit and bald head, in exactly the way that people in movies often do before being beaten up by Jason Statham.

Our plan had been to start at the south end of the canal and pick a restaurant as we walked north. Instead, Uber’s geocoding dropped us closer to the Porte Sainte-Martin.

uber trip in paris :-(

We walked a few blocks past tiny, packed restaurants, many featuring diners sitting outside under heaters. The neighborhood was clearly cooler and younger than the tourist-filled center of the city where we’d been spending our time.

Soon we reached the canal. I thought it was obvious that most of the restaurants would be south of us, but Steph wanted to go left and I was already in hot water for my poor piloting of the Uber app. So left it was. As we walked, a police car’s blaring siren tore past us, headed south, and I made a lame joke about it not being very romantic.

The restaurants were indeed more sparse to the north, so when we found Les Enfants Perdus we quickly went in.

Five minutes, we were told. No problem: the bartender looked like he knew what he was doing. I ordered a Sazerac. Not-particularly-soon-after we were seated uncomfortably close to an older couple, just past the bulk of the bar.

When did it stop being a regular meal? I’m not entirely sure. The wait staff locked the doors at some point, but I thought perhaps dinner service was ending. Waves of additional emergency vehicles sped south, but this was a city, after all. Snippets of English kept reaching us from across the room, containing increasingly alarming words. With growing frequency, the sound system erupted in booming, buzzy hums as the staff swapped out iPhones to take calls and send urgent texts. Bit by bit, we all stopped looking at our companions and food and began staring into our smartphones.

Les Enfants Perdu

I’d drunk enough to want to make off-color jokes on Twitter, so I set about doing that. Steph and I didn’t think there was much to be done but to wait out the emergency, so we ordered more drinks and more dishes, which were slower and slower to arrive.

The rumors in the room and online intensified. We soon heard about the siege at the Bataclan, though not yet the full extent of that horror. But people were saying this was not all, that drive-by shootings were still occurring, that a new attack was unfolding at Les Halles, far from our restaurant but quite close to our apartment. No one denied that gunmen were still at large.

It did not seem safe to go outside. Soon, the staff acknowledged what was occurring: a blonde waiter without much English did some comic capering to lighten the mood, and his colleagues assured us that the restaurant’s large glass windows were bulletproof, which seemed unlikely. The neighborhood was now cordoned from traffic, they said; there would be no taxis. The owner announced that everyone was welcome to stay, but the staff would call the hotel a block away on our behalf if we’d like.

We stayed. Many diners left for nearby cars or short, furtive walks home. Eventually only four or five parties remained. The staff asked us to assemble at one table and assured us again that there was no need to leave. They opened some bottles of champagne, they put on the Beatles’ White Album. The doors were declared to be definitively locked, and cigarettes appeared as if by sleight of hand. The blonde waiter sat down with us, said he had given away his tickets to that evening’s show at the Bataclan, and began weeping. I watched as Steph comforted him. I continued to check my phone.

By two AM, I was thinking seriously about sleep and how glad I was that the restaurant’s back room decor featured padded benches and implausibly fluffy pillows. But our fellow diners were restless. Group by group, they decided to walk. We checked the hashtag that the media had been writing about, the one by which Parisians were offering refuge to those stranded on the street. Useless. Steph called some of the nearby hotels, but they couldn’t help.

So: bikeshare. There is a Velibe station in front of Les Enfants Perdus, but not one that takes credit cards. Our maître d’ led us through a block and a half of empty streets, and then several pages of inscrutable French bikeshare menus. We looked with fear into every car that passed.

I hope I will never see Paris that empty again. Police cars prowled the streets, activating their sirens every other block. And there were people, more than I expected, but all walking in the same direction or huddled in doorways, speaking urgently into their phones.

The Velibe top gear is much better-considered than D.C. bikeshare’s, and we plunged through the streets. Outside a nightclub people were massing, piling into cars. I remember desperately wanting to get away from them, from any group of people, any crowd. But otherwise the ride felt quiet, urgent, unpanicked.

A wrong turn dropped us too far west, in front of a police station across from Notre Dame. Men in police jackets were milling around on the corner, looking unsure of what to do, as if the real cops, headed to Saint-Martin, had told their little brothers to put on ill-fitting departmental jackets and do their best. We biked past the cathedral, finding more police guarding the monument–some sitting near-invisibly in nondescript cars. Ever since landing our Americanness had been reliably detected from hundreds of meters away, and this was no exception. The cops saw us, but melted from our path.

We dropped our bikes at a station next to the Seine and crossed to Île Saint-Louis, immediately feeling safer for no good reason. Soon we were in our apartment.

I kept thinking about what I’d read: that people in the Bataclan had sent messages begging the police to come, that they were being executed one by one. That was the thought that horrified me more than any other. But soon sleep came. I woke up feeling no wiser than the morning before.

ad blockers won’t be a big deal

One of the few downsides to attending a conference in Asia is that when the English-speaking world is waking up and beginning to groggily think serious thoughts, you will have just returned to your hotel from a reception with free beer, which you will have had sort of a lot of. The food here is spicy enough that beer availability is a basic amenity, like electrical outlets or ventilation. Korea is a great country.

Although fundamentally delightful, this dynamic can push your level of Twitter cantankerousness out of global circadian sync. Last night it led me to wade, intemperately, into the Great Media Ad Blocker Freakout of ’15.

This morning I woke up and resolved to be a better, more understanding conversational partner. It was easy enough to identify the pieces influencing everyone’s thinking via the Today in Tabs Media Monoculture. But these pieces are surprisingly bad!

Here is The Verge’s Nilay Patel bringing the kind of tech blogger tunnel vision that can turn a wristwatch into the fulcrum of conscious experience. He thinks this minor iOS feature is best understood as a major chapter in the Manichean conflict between tech company nation-states. Here is The Awl’s Casey Johnston relaxing into the newly-minted blend of evocative GIFs, Marxist analysis and depressive fatalism that has made her employer the web’s most prestigious purveyor of media industry commentary. She never mentions pop-up blockers or points out that non-Safari webviews aren’t affected. The other pieces just don’t make any fucking sense.

Notwithstanding the App Store rankings of the new iOS ad blockers–which are better understood as a measure of download acceleration, not velocity–I doubt that all this handwringing will be justified by the number of ads whose lives are actually cut short. But let’s suppose that’s wrong.

Ad blockers work by preventing your operating system from speaking to ad networks’ domains. Those domains are where the ad network Javascript lives, which gets added to the page and loads the images or video or flash for the ad (among other things).

You could make ad blocking much, much harder by serving this Javascript from the same domain as the page content. Ad networks don’t want to do this for two reasons.

Their first objection is about control. It’s coming from their servers, it’s their Javascript, and they get to make the decisions. Handing these Javascript responsibilities to publications would introduce a big support headache and would require the networks to police the code to ensure it isn’t modified. Their Javascript is often inexcusably shitty, and modifying it would be a great idea, so publishers might be tempted to do so. Personally, I would be very excited to see this devolution of technical power.

Their second objection is about capability. Something called the same-origin policy means that when you visit publisher-a.com the site cannot detect that you have visited publisher-b.net. However, if both pages include Javascript from ad-network.biz, your path between sites can be observed. This allows your behavior to be tracked, and enables the networks to assign you to segments like “auto buyer” or “likely golfer” or “pervert”.

You can pull off tracking while serving everything from a constellation of publisher domains, but it’s not trivial to do so. Many publishers would need a hosted solution to handle these engineering details, and this is where the Awl’s paranoia about a totalitarian Facebook dystopia starts to look a bit plausible.

The hypothesized migration toward a central Facebook-like architecture has a cyclical fat/thin client whiff about it, and I suspect the pendulum will swing back before too many of us are forcibly grafted to Oculus Rifts. But then again I earn my living in a different industry and have the luxury of waiting to form a conclusion.

Still, I’m unconvinced that audience segmentation is actually good for publishers. The goal of segmentation is to target ads efficiently. But efficiency means achieving a result with fewer resources than you otherwise might. In this case, those resources are the very things that pay for all those tickets to XOXO. (I’ve meandered toward this point before.)

Besides which, there’s a convincing case to be made that ad efficiency is meaningless. A roughly constant share of the economy goes to advertising:

ADS_gdp_vs_spending
ADS_percent_GDP_b

Maybe some of the spikes in those graphs came from VCRs or loudness regulation or FTC actions or the payola scandal or Tivo or pop-up blockers. But I doubt it.

So. Could ad blockers damage or destroy some publishers? Yeah, this seems possible, particularly for niche publications with geeky audiences.

Could ad blockers hasten Facebook’s ingestion of the media industry? Sure, maybe. Kind of seems like a long-shot but I know a lot of people are freaking out about this.

Could ad blockers shift spending to TV or print, overwhelming trends toward mobile and away from cable? Kind of implausible, don’t you think?

Finally, will ad blockers reduce the size of the ad dollar pool, shrinking the total resources available to content creators? Flatly: no.

ALSO: Matt’s post is characteristically excellent.

rotation is great but someday machines will do something else & it’ll be amazing

Gear_5-bar_linkage

Yglesias has just published a great post about robots’ persistent failure to put us all out of work. You should go read it immediately, forsaking any activities that contribute to GDP.

This is part of Matt’s thesis, of course: that information technology is contributing to welfare in ways that don’t show up in productivity numbers. This makes some sense. Right now the digital music player on my kitchen counter is humming some vaguely new-wavey Millennial band, and by doing so offering me both greater control and higher fidelity than its radio forebears. Those differences are not necessarily captured in its price tag.

On the other hand, I spent part of Sunday reading a great Wired story about sneaking paper maps out of post-Soviet Russia, smuggling briefcases full of cash into Parisian cafes while trailed by KGB agents. It sounds like it was considerably more trouble than I had this morning, when I researched, located and priced out Slovenian geospatial data from their government’s (non-English) website. It took me about one and a half cups of coffee to get through it, which were much more pleasant than flying across an ocean and maybe getting injected with polonium (the Parisian cafe bit sounds okay).

Still, I think Yglesias is probably right: there’s value showing up off the books, there’s goofing off, there’s overstatement of the importance of the IT-relevant section of the economy, and there’s genuine value being created. And it looks like it’s been a mistake to just assume that the last effect will surely swamp the others.

This makes IT innovations a different beast from affirmed productivity boosters like HVAC and dishwashers. Those things manipulate actual atoms, and seem to produce wealth and surplus time in a way that software might not.

Here’s the thing, though: from a certain perspective, those are pretty much all the same machine. You can create an astounding number of things with a motor and some switches and some surrounding plastic and metal bricabrac, including not only the aforementioned appliances but your dryer, refrigerator, automobile, running water, vacuum cleaner, garbage disposal and washer/dryer. Lately these appliances been tarted up with LEDs and microcontrollers, but they all come down to a fairly simple switch mechanism detecting input and, when appropriate, setting a motor turning. Powered rotary motion has been a great friend to humanity (not least thanks to the satisfaction to be had from an afternoon spent browsing websites about mechanical linkages).

But even the noble rotary motor has its limits, tasks that humans can do but which we cannot plausibly harness the awe-inspiring might of rotation and switches to accomplish. Preparing good meals, cleaning bathrooms, navigating road traffic–all of these require a bit more finesse. Or at least a much more complicated collection of switches and motors. Perhaps we won’t be able to deliver that finesse, but it sure looks like we’re close. The Roomba knockoff in my living room isn’t perfect, but it really has dramatically reduced the percentage of time I spend on certain classes of housework.

I won’t dwell on autonomous vehicles. But c’mon. Even the most curmudgeonly unmanned vehicle skeptic can buy a startlingly cheap drone. Even he must admit that we could deploy slow, unmenacing delivery droids to toddle along our sidewalks today, if we weren’t so convinced that actual cars, with all the inalienable rights American society affords them, were just around the corner. A truly enormous economic class of atom-moving will be converted from labor to capital in short order. It will involve information technology, yes. But this will be no Facebook.

And from there, who knows? I’m not sure that Asimo will be scrubbing my toilet anytime soon; perhaps one of his descendants will lift my withered body back into its goo-filled pod after every fresh organ installation. Moving atoms around is very hard if you’re facing a problem you can’t cheat your way out of with photolithography, and I doubt that a Google Car will be the harbinger of robotic burger chefs.

Still. The car thing. That will be a big one. We’re going to notice it.

VPNwatcher for OS X

Swap out “Transmission” for your own VPN-sensitive client, obvs. Assumes Viscosity or another client that creates a tun0 interface.

while [ 1 ]; do if [ -z "`ifconfig | grep tun0`" ]; then ps ax | grep -i Transmission | grep -v grep | awk '{print $1}' | xargs kill; echo "killed process at `date`"; exit 1; fi; sleep 1; done

#teens

Sam Biddle thinks we care too much about teens:

Teens will betray you. Teens won’t even remember your URL. They’ll click whatever’s put in front of them. They’re colliding particles. Would you interview a bee? Should tech investors study a pile of wobbling sea foam? Adult culture has become so obsessed with harvesting youth culture that we haven’t stopped to consider whether or not these kids are basically just gangly, brand-obsessed dorks who drive poorly and have partially formed brains. We’ve been worshipping at the consumer altar of teenagers that we’ve forgotten how little this particular crop has done for us; their cultural pinnacles are EDM and acoustic Vine covers. And why be surprised? Can we resent teens for not being little culture panaceas when their entire world consists of apps, track practice, and their house? We’re the fools for thinking the tiny teen world view really became larger just because it now includes the internet.

But Sam’s wrong: the app-industrial complex’s slavering maw yearns for teens not because they contain a cure for internet ennui, but because it knows they are its next host.

You know how you hate using Facebook? How it’s nothing but a social obligation and professional imposition? That is the feeling of terminal stage brand loyalty. Someone is now making money off you, because your shared business relationship has aged past the point where they have any reason to please you.

If this were a Buffy episode about drugs, now would be the time when you’d be comatose in the back of a hovel, your life force slowly draining away into some monster that delivered mystic euphoria during act one. Except nobody is about to come crashing through the door to liberate you via a poorly choreographed fight sequence.

Today’s teens are tomorrow’s locked-in social network users, and if they seem frustratingly flighty now it only means it will be that much sweeter when they finally fall into the snare.

dead guys

I love my friend Brian Beutler. But I didn’t like his piece calling for a holiday celebrating the confederacy’s defeat or its followup.

Brian is an excellent writer and he makes his argument well. But this kind of Acela Corridor confrontationalism is inherently cartoonish, and it relies on a cartoonish understanding of one’s countrymen. Like this, where the cultural identity of a large chunk of the country is reduced to nothing more than a devotion to white supremacy:

[W]e probably wouldn’t call the region “The South” if its political identity weren’t still interwoven with a glossy conception of the Confederacy.

This is even harsher than usual: ordinarily Southerners are at least granted a nod toward fried food and congregationalist religion before being called racists.

Jokes aside, I can’t help reacting to the existence of these pieces personally. I was born in Virginia. My last name is Lee. The line of my ancestry goes through Robert E. Lee’s father and up to a bunch of other dead guys, all of whom, I’m quite sure, held odious views and did odious things. To a first approximation absolutely everyone in history was an asshole, but it is certainly true that some managed to do more harm than others. My blood contains echoes of a few who were in a position to hurt lots of people, and did.

Brian wants a fresh verdict about the moral obscenity of the Confederacy, commemorated with a holiday and the destruction of monuments venerating Confederate figures. I don’t think anyone should object to the underlying judgment; I agree that the idea of flying a Confederate flag is disgusting. But it’s sometimes hard not to feel that my fellow liberals’ modern desire to relitigate an old war — to emphatically celebrate a victory no one living remembers — is driven more by moral vanity than a considered approach to ending racism in contemporary society.

If those highways were quietly renamed and statues wordlessly removed, I wouldn’t care. A few others might, but I wouldn’t care about that, either. But I do resent the idea that this is *my* problem by virtue of where I was born or who my ancestors were — that it is my responsibility to account for it. People seem to think it is. Brian’s pieces are addressed to everyone in the South, not to Neoconfederates specifically. There’s a reason that he IMed me the link to his article after he hit publish. There’s a reason my high school girlfriend told me not to mention my last name when I met her mom. There’s a reason people sometimes make jokes about owning slaves when they meet me (really). They are demanding that I repudiate a tribe they’ve imagined for me, and that I glorify one that they have implicitly excluded me from. I wonder what their manners are like when they meet someone from Germany or Japan.

Fuck all that. My grandmother came down from Vermont and married a Lee, who grew up a missionary’s son in China and spent his declining years writing furiously anti-apartheid letters to the editors of the Washington Post. I remember finding my dad’s old slot car set in their attic, the slower, always-losing racecar labeled “BIGOT” — a household moral axiom clumsily translated into child’s handwriting. I won’t tolerate being told those people bore some kind of hereditary moral contamination, or smile at the idea of assigning original sin on the basis of birthplace. The merits of the long-dead have nothing to say about my grandparents’ failings or virtues. Nor our own.

So yes, no more veneration of the Confederates. But also no more unprompted denigration. No more thirst for confrontation. Just silence. Stop talking about them. Allow their names to fade into meaningless strings of syllables that signify nothing more than where one span of asphalt ends and another begins. Or better: nothing at all.

I’d be a fool to claim that historical grievances have no bearing on today’s injustices. But insisting on self-abasement by the children of wrongdoers has less power to heal than the descendants of the righteous flatter themselves to think. There is more pressing work we could all be doing.

jury duty

the sacred dignity of fashion trendsI had been called to jury duty several times before, but never selected. Steph is an attorney, Charles was an investigator, people in my family have gone to jail, and I’ve seen enough movies to know that the police can be compromised (Blade, for instance).

So I was confident I could weasel out of my latest summons, and all the more so when I learned the case was a DUI. I stood before the judge and stoically recounted the times I had found myself on the hoods of thoughtless motorists. Why, your honor, I half-chuckled, I would have been standing here in November if a driver hadn’t broken my collarbone and driven off.

But do you think that experience would interfere with your ability to judge this case impartially?

No, I replied. I held my gaze steady and locked on the judge, confident that, in the periphery of my vision, the attorneys would see the zeal for bicyclist jihad that was blazing in my eyes. I would surely be struck from the jury pool, freed by my victimhood.

Well, no such luck. I was selected for the jury and spent the next day listening to a very brief trial. The facts were these.

Around 3 AM on a Thursday morning, the defendent emerged from a cab on a side street in Adams Morgan. She walked past three bike cops–unsteadily, though perhaps not staggering–and got into her car. Moments after she had started the engine, an officer was tapping on the glass, asking her to get out. She had some trouble producing her license, and left the car in gear when she first tried to emerge. It lurched and she had to hurriedly swing her body back inside to brake. She never left her parking spot.

She admitted to having a drink, but said she thought she was okay to drive. She then failed the first of three field sobriety tests–the horizontal gaze nystagmus test, the one where the officer makes you follow a point with your eyes–displaying six out of six potential indicators of intoxication. She then began to fail the next test (walking a straight line), but refused to complete it, saying it was too late in the evening. She refused the third test as well (standing on one foot), and so was cuffed and taken to the Third Distict station. There she refused to use the breathalyzer, acknowledging on a form that this meant she would lose her driver’s license for twelve months.

So. That was the prosecution’s case. The defense took its turn, but was unimpressive. There was some inconsistency in how the testifying officers described their physical locations on the street relative to the defendent. The newest cop was caught claiming that he could smell alcohol on the defendant from fifteen feet away.

Here, the defense convinced me: the uniformity of the police claims of alcoholic odor and bloodshot eyes were suspicious. I’m not trained to watch for such things, but I don’t think I’ve noticed someone smelling of booze more than a handful of times; other signs of drunkenness seem much easier to detect. In rooms where videos like this one are shown, I have no doubt that officers are told they should always claim these unverifiable impressions.

The extent to which the police had been trained for the courtroom was subtle but impressive. The defense asked if the testifying officer was familiar with a textbook about field sobriety tests; in fact he not only knew it, but could name distinctions between its editions, identified to the month. The tech from the station was eager to explain the difference between the semi-discredited Intoxilyzer and the new and faultless Intoximeter.

More than this, their affect and conduct made an impression. The steady eye contact with the jury; the friendly confidence; the polite references to the defendant; the lack of mistaken use of gestures or imprecise speech, knowing that they were participating in the creation of a written transcript. I couldn’t help wonder whether the second officer–an MPD veteran of several years–was putting us on when he appeared uncertain about how to approach the witness stand or navigate the courtroom’s other logistical minutiae. Surely he had done this exact thing dozens of times in this very building, probably in this very room.

The defense amounted to little more than nitpicking. No witnesses, brief cross-examinations. We went to the jury room without much doubt about the evening’s events, but unsure whether they were enough to produce a conviction.

Per the judge’s instructions, two standards had to be met. Was the defendant operating the vehicle in DC? The law says that you merely have to be “in control” of a vehicle. It doesn’t even have to be running! Pushing a car out of the snow or leaving your hands on the steering wheel can qualify. We all agreed that this criterion had been met.

The other standard related to the defendant being “under the influence of alcohol”. This means impairment of her ability to operate a vehicle to an extent that could be perceived. There is no specific threshold or test that divides impairment from non-impairment.

Interestingly, the judge’s instructions stated that the defendant’s refusal to take the breathalyzer could enter into our consideration. Specifically: this refusal could be interpreted as evidence of “feelings of guilt”, which could in turn be taken as evidence of actual guilt. Steph feels this is unconstitutional, and I admit that it felt a bit fishy to me, too. But it was plain as day in the instructions.

The jury quickly settled into a 10-2 split favoring a conviction. One dissenter remained quiet, but the other was happy to argue on the defendant’s behalf. I sat next to this gentleman during the trial, and found him to be friendly and pleasant. But he was a bad juror. He seemed used to being afforded respect and being celebrated for his cleverness. At home I suspect he is considered a man of erudition. Alas, his arguments betrayed an imprecision of thought and an eagerness to use the proceedings for a sort of role-playing.

Among the arguments he brought to the table:

  • “Only one of three tests was administered; that’s 33%. And we know that test is only 77% accurate. That’s only a 25% chance she was impaired!” [In fact, that 77% figure was quoted for observations of 4 of 6 indicators at 0.1% BAC; the defendant displayed 6 of 6. Also this is not how statistics works.]
  • “We have her signature on the form where she declined the breathalyzer. Let’s ask for a current signature and compare [to look for differences due to drunkenness].” To my embarrassment, a note was passed to the judge asking for this new evidence, which he politely rejected.
  • A suggestion–seconded by several other jurors–that we consider the defendant’s appearance and decide whether she looked like an alcoholic. This was particularly revolting to me, and I said as much.

Basically, justice is terrible. Many of the other jurors weren’t much better, confusing facts and engaging in inappropriate flights of speculation before being shut down by their peers.

I don’t know that I was so much better. I could assemble relatively cleaner arguments, but I left the courtroom feeling equivocal about the presumption of innocence and reasonable doubt; and I was saddened by the likelihood that the police had watched a drunk woman walk to her car, patiently waiting to stop her until she had–just barely–committed a serious crime. I walked into the jury room thinking “guilty”, but the sense of the majority cemented this from opinion into belief. At some point I stopped bothering to dismantle bad arguments coming from those on my side.

And the rhetorical skills lacking in some other jurors lacked amounted to little more than a clumsiness at manipulation. At one point we received an answer to a question we had asked the judge, and the answer undercut the argument for exoneration. My fellow jurors immediately pounced on the hold-out, browbeating him with this new fact rather than giving him space to admit a change of heart while retaining some dignity. I found myself waving them off, even though I agreed with their position. I wanted to get out of there. I was ready to bend the conversation to that need.

The holdout’s ego survived this attack, and he reluctantly agreed to a guilty verdict. Besides, he noted, he had a lunch appointment to get to. A verdict was read to an impassive defendant, whose life became much (but I hope not disastrously) worse. We were thanked for our service, collected our $4 per diems, and walked out into the cold, mostly confident that we had done something.