New York Official Demands Documents in Investigation of Foreign …
New York Official Demands Documents in Investigation of Foreign Exchange Market RiggingFebruary 10, 2014 • 11:15AMBen Lawsky, superintendent of New York’s Department of Financial Services, has demanded documents from more than a dozen banks, including Deutsche Bank, Goldman Sachs, Lloyds, Royal Bank of Scotalnd, and Standard Chartered, the Feb. 5 Financial Times reported, as part of an international investigation of the rigging of the $5.3 trillion global foreign exchange market, a market bigger than the LIBOR market.Martin Wheatly, chief executive of the UK’s Financial Conduct Authority, told a recent parliamentary hearing that allegations that banks had colluded to rig prices in the foreign exchange market were “every bit as bad as they have been with LIBOR.” The very same banks that rigged LIBOR as well as the derivative …
5 Financial Times reported, as part of an international investigation of the rigging of the $5.3 trillion global foreign exchange market, a market bigger than the LIBOR market. Martin Wheatly, chief executive of the UK's Financial …
Maybe Financial Literacy Is NOT the Answer to Student Overborrowing, Part 1
According to an essay that appeared in the Pacific Standard, “there is a certain line of thinkingâ��embraced by Wall Street and politicians of both partiesâ��that holds that one of the major causes of the Great Recession was the publicâ��s lack of financial literacy.” The piece goes on to say that the root problem wasnâ��t just an unchecked mortgage industry or an investment sector that wagered billions on Byzantine mortgage-backed securities; the ignorance and greed of Main Street Americans, which made them easy marks, played a major role too. To fend off further economic calamity and keep families afloat, many financial literacy advocates believe our best hope is to teach people to live within their means, to carefully check mortgage documents before signing them, and…
According to an essay that appeared in the Pacific Standard, “there is a certain line of thinking—embraced by Wall Street and politicians of both parties—that holds that one of the major causes of the Great Recession was the public’s lack of financial literacy.” The piece goes on to say that the root problem wasn’t just an unchecked mortgage industry or an investment sector that wagered billions on Byzantine mortgage-backed securities; the ignorance and greed of Main Street Americans, which made them easy marks, played a major role too. To fend off further economic calamity and keep families afloat, many financial literacy advocates believe our best hope is to teach people to live within their means, to carefully check mortgage documents before signing them, and to save enough money to survive a prolonged period of unemployment. All we need are the right educational tools.
Answering the call, financial literacy initiatives, both public and private, have proliferated wildly over the past several years. There’s Sesame Street’s “For Me, For You, For Later,” in which Elmo and his preschool-age fans learn the basics of spending, saving, and living within one’s means as the furry Muppet decides to forgo a $1 “stinky ball” in order to save up enough money to purchase a glittery “fantastic ball” instead. At the other end of the age spectrum, there’s Money Smart for Older Adults, a joint project of the Federal Deposit Insurance Corporation and the Consumer Financial Protection Bureau designed to teach the elderly how to avoid falling for financial scams.
The leading cause of bankruptcy is not overspending, nor lack of adequate financial planning, but the financial free fall caused by a health crisis.
In between, there are numerous online games, like Financial Football, a co-production of Visa and the NFL that quizzes players about things like compound interest and identity theft as they make their way toward a virtual end zone. There are programs for children and teens peddled by personal finance gurus like Dave Ramsey. And there are untold numbers of special school curricula, many created by financial services outfits like Capital One or your local credit union, which offer education with a side of brand awareness. (Banks relish the opportunity to get their names in front of future customers and their parents in a warm and virtuous context.)
Government, too, stands squarely behind these efforts. More than a dozen states now require that their students take a class in personal finance before they can receive a high school degree. And the Obama administration—acting under the terms of the Dodd-Frank financial reform law—has set up a federal Office of Financial Education housed in the Consumer Financial Protection Bureau. “Financial education supports not only individual well-being, but also the economic health of our nation,” said Federal Reserve Chairman Ben Bernanke in a speech last year. In case that doesn’t make clear what’s supposedly riding on this effort, in 2012 the U.S. Senate held a hearing titled “Financial Literacy: Empowering Americans to Prevent the Next Financial Crisis.”
There’s only one problem: mounting, resounding evidence shows that financial literacy education doesn’t work. Dave Cannon’s experience is not the exception but the norm. “We have this idea that if we teach kids good habits they will use them. But it’s just not true,” explains John Lynch, a consumer psychologist at the University of Colorado’s Leeds School of Business. Not all behaviors are governed by rational intentions. “A kid in the backseat of a car,” Lynch says, “is not thinking about Sex Ed.”
FINANCIAL LITERACY PROMOTION MAY sound perfectly sensible—who wouldn’t want to teach children and adults the secrets of managing money?—but in the face of recent research it looks increasingly like a faith-based initiative. Consider one recent paper, scheduled for publication in a forthcoming issue of the journal Management Science. In a meta-analysis, Lynch and the marketing experts Daniel Fernandes and Richard Netemeyer compiled the results of more than 200 studies of financial literacy programs, adjusting for subjects’ family background and personality traits that had been ignored in the previous research. The result? Financial education has a “negligible” impact on subsequent financial decisions and behavior. Within 20 months, almost everyone who has taken a financial literacy class has forgotten what they learned.
These findings echo the results of another recent working paper, by the economists Shawn Cole at the Harvard Business School, Anna Paulson at the Federal Reserve Bank of Chicago, and Gauri Kartini Shastry at Wellesley College, on the efficacy of state laws requiring financial literacy to be taught in schools. Their conclusion: “State mandates requiring high school students to take personal finance courses have no effect on savings or investment behavior.”
Another study, from 2009, tested the financial literacy of recent high school graduates who had taken a highly regarded personal finance class. They did no better than graduates who had not taken the class. One of the study’s authors, the economist Lewis Mandell, was a founder of the modern financial literacy movement, but the evidence has prompted him to turn his back on the mainstream financial literacy paradigm.
Reluctant to give up entirely on educating consumers, a number of scholars—including Lynch and Mandell—are now pushing for a model of financial literacy promotion known as just-in-time education. Instead of teaching personal finance in schools, the idea goes, a combination of education and coaching should be offered at the point of sale, or when people have reached a point in their lives when they actually need a given financial service. Don’t offer retirement education in high school or even college. Wait until someone starts a new job and needs to understand and manage a 401(k).
"Rethinking the Contraceptive Mandate: The classical liberal case against the law is stronger than the religious one."
“Rethinking the Contraceptive Mandate: The classical liberal case against the law is stronger than the religious one.” Law professor Richard A. Epstein has this essay online today at the “Defining Ideas” site of the Hoover Institution. Posted at 10:35 PM by Howard Bashman”9th Circuit’s Tallman Named to FISA Court”: Pamela A. MacLean has this post today at her “Trial Insider” blog. And at the “Techdirt” blog, Tim Cushing has a post titled “New FISA Court Appointees Are A Pro-Government Prosecutor And An Unknown Quantity.”Posted at 10:20 PM by Howard Bashman”North Dakota Abortion Law Trial Off as Case Settled”: Bloomberg News has this report. Posted at 10:16 PM by Howard Bashman”Nevada officials won’t defend gay marriage ban”: Ed Vogel of The Las Vegas Review-Journal has this …
“Rethinking the Contraceptive Mandate: The classical liberal case against the law is stronger than the religious one.” Law professor Richard A. Epstein has this essay online today at the “Defining Ideas” site of the Hoover Institution.
Another Look at Personal Finance and Class Warfare
This website is for entertainment and educational purposes only. Material shared on this blog does not constitute financial advice nor is it offered as such. Therefore, The Simple Dollar assumes no legal liability for the completeness, accuracy, or suitability of the information provided by its authors.Readers will also note that The Simple Dollar maintains financial relationships with certain third party merchants. If readers access and utilize the services of one of these affiliates through a link on the blog, The Simple Dollar may be compensated for the referral.Please read the blog’s policies on privacy and image-use.And always consult a locally licensed insurance agent, financial adviser or certified attorney before making any financial decisions.
A long while back, I wrote an article discussing class warfare and personal finance advice. In short, my conclusion was that you’re making a mistake by mistrusting financial advice from someone just because of an income gap. Financial advice given to someone making $100,000 a year isn’t useless to someone making $25,000 a year because the core principles are the same.
That isn’t to say that there isn’t some personal finance advice that applies better to certain income levels than others. Someone who is completely unemployed, for example, is going to be much more interested in advice relating to government programs and resources than someone making six figures. At the same time, someone making six figures is going to be more interested in investment advice than someone who is unemployed.
Here’s the thing: all of those are just specifics. They’re just different ways of implementing the same principles, and those principles drive financial success regardless of whether you’re unemployed, you’re making minimum wage, you’re retired, or you’re earning a mint.
We’re all in this together.
I’ll give you three examples of exactly what I’m talking about. Here are three key personal finance principles that show up in all of our lives.
Spend Less Than You Earn – The Bigger the Gap, the Better
It doesn’t matter whether you’re making minimum wage or you’re making six figures, you need to spend less than you earn. If you’re not doing that, your financial situation will never improve. If you’re simply hoping that your future self will take care of it, you’re banking your future on an unreliable image. All of this is completely true regardless of your income level.
You can spend less by simply being more frugal and looking seriously at your spending. Are you paying for satellite or cable television? Is your cell phone package expensive? Are you eating out a lot when you could eat at home or at community dinners for much less? At the same time, you can earn more by looking for more revenue streams. Are there side jobs you can do? Can you find another, better primary source of income?
If you do have a gap, you can apply that money toward paying off debt or toward building an emergency fund (see below) or toward saving up for a goal you have in mind.
All of those things apply to basically everyone, regardless of income level. The tactics of cutting your spending and looking for more ways to earn money are the same for everyone.
The Cost of Living of Your Area Is Going to Shape Your Choices
Let’s say you live in Norman, Oklahoma. You earn $25,000 a year, which isn’t too much more than minimum wage.
Let’s say another person lives in San Francisco, CA. How much would that person have to earn each year to match the standard of living of that person making $25,000 in Norman?
The San Francisco dweller would have to bring in $49,138. Why? Comparing San Francisco to Norman, groceries cost 36% more, housing costs 311% more, utilities cost 17% more, transportation costs 20% more, and health care costs 36% more, according to this data.
If you can find a job that pays $40,000 a year at the University of Oklahoma in Norman, you’re going to live better in terms of groceries, housing, transportation, and health care than someone making $75,000 a year in San Francisco.
That’s just a specific example, but it’s one that repeats over and over and over again when comparing places to live in the United States. Someone making a lot of money who is locked into living in an expensive area by their job isn’t really doing much better than someone earning substantially less in a lower cost-of-living area.
Regardless of your income level, it makes sense to live in a lower cost-of-living area as long as your career is supported there. All of us are in that same boat.
You Need to Have an Emergency Fund
It doesn’t matter whether you’re earning a ton of money or you’re earning just a few bucks an hour. If you lose your job or your spouse falls ill or your transmission falls out of your car, it’s going to financially hurt.
Again, regardless of your income level, the only real way to handle sudden emergencies like that is with an emergency fund. You’ve got to have some cash on hand.
Life hands all of us bad cards sometimes. Every single one of us has unexpected obstacles to overcome. Having some cash in the hole makes those obstacles much easier to deal with.
It makes sense for all of us to take a little bit out of our pay and put it aside for those emergencies. It doesn’t matter whether we’re making a mint or making a pittance, having a little money set aside is eventually going to be a life saver.
We’re All Fighting the Same Fight
These are just three examples – of many – that make it clear that, in most regards, almost all of us are fighting the same financial battles.
We’re all tempted to buy things that we shouldn’t. We all struggle with spending less than we earn. We all want to make sure that the rest of our lives are secure and that we can do everything possible for our children.
We all make mistakes. We all fall short of our goals sometimes. We all fall into traps and pitfalls – and sometimes those traps and pitfalls are quite deep.
We all succeed sometimes. We all struggle sometimes. We all have opportunities placed in front of us. Sometimes, we pick up the ball and run. Sometimes, we miss the boat.
Yes, some of us earn more than others, but so many of our choices and so many of the challenges and pulls on our life are exactly the same.
The next time you pass judgment because someone is making less than you or you ignore the difficulties of someone making more than you, stop for a moment and recognize that almost all of us struggle with the same exact things when it comes to our money. Just because someone didn’t have an opportunity or a trap put in front of them at a key moment in their life – or just because someone did – doesn’t mean that they aren’t struggling in many of the same ways that you are and that they aren’t fighting for successes in their own life.
Getty Images Dave Lutz of Stifel, Nicolaus passes along the big stories that traders are chatting about today. Here’s some of the big ones.Chinese manufacturing activity slipped to its lowest level in six months, with indications of slowing growth for the quarter to come in the world’s second-largest economy – The National Bureau of Statistics said its purchasing managers’ index (PMI) for January slipped to 50.5, a reading just above the threshold for quickening growth. While output was still expanding, a sub-index for new export orders hovered for the second month below the midpoint, indicating slowing growth, and pointing to a lull in factory operations for the next few months (FT)Japan is on course to break a pledge to balance its budget by 2020, according to a …
Dave Lutz of Stifel, Nicolaus passes along the big stories that traders are chatting about today. Here's some of the big ones. Chinese manufacturing activity slipped to its lowest level in six months, with indications of slowing …
The US Department of Energy will provide about $1 billion of cost-shared funding to the FutureGen Industrial Alliance for the FutureGen 2.0 Project, a public-private partnership developing the world’s first commercial-scale, coal-fueled oxy-combustion electric generation project integrated with carbon capture and geologic storage. The Alliance, cooperating with Ameren Energy Resources, will upgrade one unit in […]
A U.S. government watchdog is involved in an investigation of whether bank traders manipulated markets and engaged in front running of orders from Fannie Mae and Freddie Mac in the interest-rate swaps market, according …
Top court official says decision date on FX loans �uncertain� | Politics …
The date of the Constitutional Court’s decision concerning mortgages denominated in foreign currency is uncertain, a top court official told MTI on Thursday, after Figyelo weekly reported online that a ruling would be made in the next few days.Botond Bitskey, the court’s chief secretary, said that the initiative for a review had arrived at the end of November and the judge assessing the case was in the process of dealing with it. When the draft ruling is ready, all the top judges of the court will start discussing the matter, he added.“The question of when the decision will be made is something I cannot tell at the moment,” he said.Earlier, Bitskey noted that the law does not impose a deadline on the court …
The date of the Constitutional Court's decision concerning mortgages denominated in foreign currency is uncertain, a top court official told MTI on Thursday, after Figyelo weekly reported online that a ruling would be made in …
In an earlier post, I talked about how schools determine aid eligibility based on your expected family contribution (EFC). Your EFC is based on a combination of income and assets that belong the student and, typically, her parents. Your chosen college’s financial aid office, along with the federal government, throws all this information into a calculation called the the federal methodology to arrive at your individual EFC. the higher your EFC (or the closer it is to the estimated cost of attending your college), the less eligible you are for federal financial aid. Here, we’re going to take a look at some ways that you can legally lower your EFC, apart from being declared an independent student, and thus increase your eligibility for aid. Student…
In an earlier post, I talked about how schools determine aid eligibility based on your expected family contribution (EFC). Your EFC is based on a combination of income and assets that belong the student and, typically, her parents. Your chosen college’s financial aid office, along with the federal government, throws all this information into a calculation called the the federal methodology to arrive at your individual EFC. the higher your EFC (or the closer it is to the estimated cost of attending your college), the less eligible you are for federal financial aid. Here, we’re going to take a look at some ways that you can legally lower your EFC, apart from being declared an independent student, and thus increase your eligibility for aid.
Student Earnings
One of the criteria that has the most effect on your EFC is your income both before and during your college years. This doesn’t mean that you should immediately quit your job and throw yourself on the couch with the remote and a bucket of ice cream as you wait for the Pell Grant check to clear. Not at all. In fact, please don’t. But what you do need to do is remember that in the eyes of the financial aid powers, a percentage of what you are earning is expected to be used for college. So, yes, you could lower your income in order to be more eligible for aid, but you would be shooting yourself in the financial foot. It would be frankly silly to earn $5,000 less per year so that you could qualify for an extra $1,000 in federal student aid. Right?
The better (less fun, more prudent) course of action is to save as much of what you earn as you can for use in paying your college expenses. If your income is going to count against your EFC, which it will if you need federal aid, you need to allocate as much of it as you can toward paying for college. From the frugal perspective, this strategy has the added benefit of reducing the amount of outside aid you will actually need, most particularly loans. Which, in the long run, is financially way better. So, if you use what you earn to by less pizza while you’re in college, you will be able to buy a lot more of it (and other things) with your post-degree job and reduced student debt lifestyle.
Trust Your Parents
Another way to reduce your EFC is to transfer some of the assets that you own in your name to your parents. The only things you need to worry about are the types of assets that will be included in the federal methodology calculation, such as savings accounts and accounts of which you are the beneficiary, like 529 savings plans, etc. If you choose to look into this way of increasing your eligibility for federal student aid, be sure to talk to a financial adviser to make sure that it is a permissible transfer. You will also want to make sure that you change the ownership long before you submit your first Free Application for Federal Student Aid (FAFSA) so that there is no question of who is legal owner of the assets.
Four Free Helpful Online Credit Resources That I Actually Use (Or Highly Recommend)
This website is for entertainment and educational purposes only. Material shared on this blog does not constitute financial advice nor is it offered as such. Therefore, The Simple Dollar assumes no legal liability for the completeness, accuracy, or suitability of the information provided by its authors.Readers will also note that The Simple Dollar maintains financial relationships with certain third party merchants. If readers access and utilize the services of one of these affiliates through a link on the blog, The Simple Dollar may be compensated for the referral.Please read the blog’s policies on privacy and image-use.And always consult a locally licensed insurance agent, financial adviser or certified attorney before making any financial decisions.
Sometimes, it seems like you can scarcely turn on your television or radio or web browser without seeing someone offering you a great solution to your credit woes or proper protection against credit worries. Pretty much anything involving the word “credit” is a hot commodity.
There are thousands of businesses out there who want to help you fix your credit – some more reputable than others. Beyond that, there are quite a few nonprofits and government agencies offering assistance to people who want to fix their credit or keep it in tip-top shape.
It’s also pretty easy to understand why so many companies are out there wanting to help you. It’s because there are a lot of people struggling to maintain good credit and there are also a lot of people who want to maintain the good credit they have.
Like it or not, our credit pops up over and over again in our lives. It doesn’t just affect whether or not we’re eligible for credit cards or car loans or mortgages. It affects our insurance rates. It affects our ability to rent an apartment. It affects our ability to secure employment. Many, many businesses and agencies use our credit report and credit score as a quick and dirty way to gauge our personal reputability.
In other words, it makes a lot of sense to keep tabs on our credit. If your credit card company doesn’t help, the trick is navigating through the sea of businesses and offers available to help us do just that. Be sure to check through the benefits and offerings from your card, however, as many of them do offer this feature.
When it comes to my own credit, I’m extremely picky about who I trust. There are two big reasons for that.
First, I worry about identity theft. I’m not saying that businesses are actively out there trying to steal my identity – though some shady outfits certainly are. I’m more concerned about having my information in lots of places, because all it takes is one slip-up for my data to be stolen from a reputable business, and the more businesses that have my information, the more likely a slip-up is going to adversely affect me.
Second, some products are blatantly overpriced. There are sites that will quite happily charge you (or make you sign up for a contract) in order to get things that are free elsewhere. In fact, many companies act as credit “middlemen,” hopping in the middle between you and a report you can get for free just so they can make a buck. They aren’t really criminals that will steal your identity, just opportunists.
Given that, when it comes to my credit, there are really only four online sources that I turn to. Luckily, I’ve only needed to look at two of them over the past several years, as the last two are best used if the first two reveal actual credit problems. Let’s take a look at them.
What does it provide? The federal government legally provides each person with one free credit report each year from each of the three credit bureaus. Their mandated site for providing those reports is AnnualCreditReport.com. Virtually every other site that provides credit reports is essentially just acting as a middleman for the service already provided by free from AnnualCreditReport.com.
Why do I trust it? When you go to the FTC’s website at ftc.gov and look for how to acquire the free credit reports you’re guaranteed by law, the page you find makes it extremely clear that the only place you should go to is AnnualCreditReport.com.
What does it provide? Once you have your credit report in hand, you’ll probably also want your credit score (or a rough estimate of it). Your credit score is simply a number that summarizes your credit trustworthiness and, although there are several different flavors of credit scores, the most common kind is the FICO score, which is a trademark of Fair Isaac. You can pay various companies to calculate your score for you, but if you use a good credit score estimator tool along with the information in your actual report, you can get a pretty accurate estimate of your score.
Why do I trust it? Since I’m not too keen on sharing personal information, I’ve tried out a bunch of different free credit score estimators that do not require you to share any truly personal information. I think this one does the best job of the bunch. You don’t have to provide any personally identifying data and it provides a result that seems rather accurate.
What does it provide? If you find that your credit report is messy and your credit score is lower than you’d like, you’ll probably want to work on repairing it. Again, there are a lot of tools out there that can show you how to fix your credit score, but there are also a lot of reputable free guides out there. This is a very good and very reliable one.
Why do I trust it? It’s a government publication that has no interest whatsoever in pushing you to buy a product or make any other financial move. Their incentive isn’t profit. It’s providing help.
Justice Department Approved Credit Counseling Agencies
What does it provide? If you’re truly in a credit crunch and you can’t figure out how to fix things with the tools above, you may want someone to come in and help. Unfortunately, there are both reputable and disreputable credit counseling services out there. This site provides a list of services that are approved by the Justice Department.
Why do I trust it? Bankruptcy cases point to this list of credit counselors as the ones that are accepted by the court system. The list is provided by the Justice Department. In my eyes, you’re not going to find a more trustworthy list of credit counseling services.
Regardless of whether your credit is strong or you’re in a debt crisis, one (or more) of the tools on this page should be of help to you.
Blind Faith: Litigating in the Foreign Intelligence Surveillance Court
Marc Zwillinger is, in all likelihood, the only private lawyer in America to have argued a case in front of the Foreign Intelligence Surveillance Court of Review, or FISC-R. And though he has also litigated in the lower FISC — the so-called “rubber stamp” for approving government surveillance applications — Zwillinger did not know how to describe the place when I asked him. “There is no ‘setting foot’ inside the FISC,” he told me. “The case was litigated on the papers.”“[F]iling documents with the court, frankly, has always been a little bit like trying to get a letter to Santa Claus.”The case involved Yahoo!, Zwillinger’s client, which had apparently refused to comply with the NSA’s directive to Yahoo! to turn over private …
Marc Zwillinger is, in all likelihood, the only private lawyer in America to have argued a case in front of the Foreign Intelligence Surveillance Court of Review, or FISC-R. And though he has also litigated in the lower FISC — the so-called “rubber stamp” for approving government surveillance applications — Zwillinger did not know how to describe the place when I asked him. “There is no ‘setting foot’ inside the FISC,” he told me. “The case was litigated on the papers.”
class="pullquote">“[F]iling documents with the court, frankly, has always been a little bit like trying to get a letter to Santa Claus.”
The case involved Yahoo!, Zwillinger’s client, which had apparently refused to comply with the NSA’s directive to Yahoo! to turn over private information about its users. The FISC-R recently released a heavily-redacted version of its 2008 order (pdf), in which it concluded that the directive was reasonable under the Fourth Amendment. This was only the second order to come down from the FISC-R in its lifetime.
The job of litigating a case in the FISC is unique, to say the least. On November 4, 2013, Zwillinger testified before the Privacy & Civil Liberties Oversight Board (PCLOB), the independent agency charged with parsing issues of privacy and civil liberties in light of national security. There Zwillinger said: “[T]he logistics of handling a classified litigation are very difficult, and filing documents with the court, frankly, has always been a little bit like trying to get a letter to Santa Claus. It requires a lot of blind faith.”
The Foreign Intelligence Surveillance Court
Unlike the FISC-R, the lower FISC has been quite busy over the years, in its primary role as an “approver” of the government’s surveillance applications. The seven FISC judges are Article III judges, selected by the Chief Justice of the U.S. Supreme Court. Their primary job is to decide surveillance applications from federal law-enforcement agencies like the FBI and NSA, when those requests implicate national security.
Although the FISC has only recently become the target of criticism, it was originally created in 1978 to act as a check on the power of the executive. Before the FISC was created, the Senate’s Church Committee found that the executive branch was abusing its authority to conduct domestic surveillance. Today, however, the FISC does not seem to be much of a check. Since 1979 it has rejected just 11 surveillance applications, and granted 33,942, according to Wikipedia. But those numbers don’t tell the whole story.
On the surface the FISC seems willing to facilitate executive abuse of power. This has given rise to the widely-held characterization that the FISC is nothing more than a rubber stamp. But James Carr, who served as a FISC judge from 2002 to 2008, has a different opinion. Carr testified alongside Zwillinger on November 4th on the way FISC judges consider individual surveillance applications.
According to Carr, so-called “legal advisors” do the job of vetting surveillance applications even before they get into FISC judges’ hands. At the FISC, legal advisors function as neither law clerks nor magistrates. Their role, in part, is to push back against the Department of Justice and the intelligence agencies. They decide whether or not to formally present applications for judicial review. Those applications the advisors choose not to present are “off-docket” — simply not considered for approval — meaning that the true rate of rejections, even if those rejections don’t come from the judges themselves, is greater than that indicated by the 11 applications turned down since 1979.
This suggests an internal, quasi-adversarial process.
The problem, however, is that the adversarial process is a hallmark of our legal system, and Zwillinger and the Internet service providers he represents (and, by extension, the millions of users who expect some modicum of online privacy), play very little role in it.
Zwillinger, lone defender of online privacy
Saying that Zwillinger is our lone defender of online privacy when it comes to national security is perhaps an overstatement. Google itself recently pushed back against NSA overreaching with its heady graphs on government requests for users’ information. And nearly all the big names in Internet service providers, from Google to Yahoo! to Facebook and others, are currently seeking a declaratory judgment from the FISC-R (Zwillinger is again representing Yahoo! in this case) asking the court for the authority to publish the number of surveillance demands — just the number — the government has made. In short, the service providers are asking for a bit more transparency.
But there’s some truth in my lone-defender label.
class="pullquote">“[T]rying to meaningfully litigate in an adversarial way […] is an uphill battle.”
Whether or not the FISC is a rubber stamp is sort of beside the point. What matters is meaningful legal process. It is only possible, at the moment, to point to a dark gaping hole where process is concerned.
Zwillinger testified that the law is currently designed to make service providers like Yahoo! “the last bulwark” against overzealous surveillance, because the FISC does not have the authority to do a full review of a government directive unless a service provider first initiates a challenge. And it is exceedingly difficult for a provider to initiate a challenge, because they are the only parties with the statutory authority to challenge orders before they’re executed.
It’s not clear whether the law was intentionally designed this way, but it doesn’t matter. What matters is reflected in Zwillinger’s testimony: “[T]rying to meaningfully litigate in an adversarial way […] is an uphill battle.”
This is strong language coming from someone with his background.
Zwillinger started with the Department of Justice as a computer crime prosecutor. From there, he founded ZwillGen PLLC and went into private practice, defending clients facing government demands for electronic evidence in criminal cases. Zwillinger’s practice evolved to a point where he began helping clients respond to all types of demands for user data, in both civil and criminal cases, as well as intelligence cases under the Foreign Intelligence Surveillance Act, or FISA.
To date, Zwillinger’s 13-plus years in this line of work means that he understands a thing or two about litigating privacy cases, yet there he was in front of the PCLOB, using words like “uphill battle” in describing his experience litigating in the FISC.
It comes down to a veil of secrecy over anything that touches FISA law.
The government’s show
The FISC procedural rules are available on the US Courts website. Reading them, it becomes clear that litigation in the FISC is the government’s show. Nothing makes that clearer than Rule 7(j), which requires the judge to review the government’s applications ex parte and in camera any time the government asks, which is, as Zwillinger testified, “very difficult to deal with and overcome.”
The government can serve unclassified, redacted versions of its submissions on other parties, as long as those versions clearly articulate the government’s arguments. If you go before the FISC, in other words, you will have to respond to a redacted version of the government’s pleadings, while everyone else knows what’s actually going on. Do redacted pleadings clearly articulate the government’s arguments in a meaningful way? Is clear articulation of the arguments, but with none or nearly none of the substantive facts, enough to craft a meaningful response?
The answer, generally, is no, and we start with how government orders first arrive on Internet service providers’ doorsteps.
class="pullquote">“[A] decision by a provider to challenge must be made alone, under acute time pressure, with sensitivity to what’s at stake, with little context and while under a gag order.”
Zwillinger testified: “When providers are served with classified FISA orders or directives, they are seeing an entirely unfamiliar process containing very few specifics which they can review only for a brief period of time before they have to hand it back to the government. Yet based on that mere glimpse, they’re being asked to disclose — compelled to disclose — the most private user communications they carry.”
If a provider has the gall not to follow orders, the case moves to the challenge phase. This is where it starts to get even trickier, prompting Zwillinger’s references to Santa Claus and blind faith: “[A] decision by a provider to challenge must be made alone, under acute time pressure, with sensitivity to what’s at stake, with little context and while under a gag order.”
If a provider ultimately makes the decision to challenge, rest assured the ex parte provision will rear its ugly head during the litigation phase: “[E]ven when appearing before the court, the government regularly submits ex parte papers that a provider is not permitted to read, even if the provider is represented by a lawyer with the right clearance.”
Zwillinger is one of the few lawyers with the right clearance.
He had it eight years ago when a provider first asked the government to clear him so that he could give that provider legal advice. Zwillinger has held this security clearance ever since.
The “independent counsel” idea
Would independent counsel help lift the veil of secrecy? Would it make litigating in the FISC more meaningful for private lawyers like Zwillinger and the providers he represents?
Carr, the former FISC judge, seems to believe that judges should have the opportunity to call on independent counsel on an as-needed basis. In his New York Times op-ed arguing for a better secret court, Carr wrote: “Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.”
Scott Greenfield, criminal defense lawyer and author of the blog Simple Justice, wrote that it isn’t enough to authorize FISC judges to call on independent counsel only when they feel like it.
The point of an adversary system isn’t just to oppose the government’s lawyers arguing the government’s position for the government’s benefit, but to challenge the neutrals to be neutral. The government isn’t there only when the court decides it would be a good idea to hear from them, but to push the government’s agenda. To shackle the government’s adversary by only seeking an appearance when the court decides it could use a hand isn’t any adversary system at all.
Greenfield’s argument aligns with what Zwillinger, as a private lawyer with clients to represent, conveyed in his testimony before the PCLOB. Litigating in the FISC is like seeing snapshots of the landscape while bound and gagged in the trunk of a car (my tortured metaphor, not Zwillinger’s). From the miniscule crack in the lid, you can just barely see the landscape of the government’s arguments and the court’s decisions as they evolve, if at all. “[A]n advocate,” Zwillinger testified, “would know that two years ago the Solicitor General stood up and made a representation to the court that […] there is no database of incidentally-collected U.S. persons’ communications and only an advocate who had been there on several cases would know that the representations the government is making in one case may be inconsistent with the representations that are made in another.” (Emphasis mine.)
The problem right now is there is no advocate litigating in the FISC from case to case, which is why lawyers only get snapshots. So from Zwillinger’s perspective, the role of independent counsel should be much more than running to argue in the public interest when FISC judges call for them to do so. Independent counsel would have to be an integral, permanent part of the system, with a clearer view of the landscape of arguments and decisions the government makes, from Point A to Point B.
Moving from blind faith to something better
In the end, the idea of independent counsel is just an idea. Who knows how far we will go until the idea becomes reality. For now, Zwillinger must deal not only with a lack of transparency but a lack of precedent.
“[N]obody’s been there before,” Carr testified, referring to when novel issues come up before the court. In other words, there really is very little precedent to build arguments on. This, combined with the redactions, makes for difficult advocacy (again, from the perspective of private counsel, not from the perspective of the government, which has all it needs to build its case).
But there are signs of improvement.
Zwillinger referred me to Tumblr, of all places, where the intelligence community has published some declassified documents. It’s even on Twitter @icontherecord (“Intelligence Community on the Record”). At the moment, the account has 2,330 followers. (Glenn Greenwald is among them, the journalist who originally broke the Snowden story.) This effort, along with the greater-than-believed rate of rejections of surveillance applications (even if we don’t know what the number actually is), indicates the slippery slope may not be quite as slippery as we thought.
Still, the current process of litigating in the FISC merits improvement.
As it stands now, looking again at the FISC-R’s 2008 order (pdf), you wouldn’t even know who —the NSA or the FBI or Martians — is making the application. That’s redacted. And you really have no idea whether the procedures in place to safeguard whatever level of privacy we are allowed to have are actually working, other than the assertion of earnest people that they are, in fact, working. Descriptions of all such procedures are redacted. The only thing we do know is what is publically available — i.e. not secret. Namely, that the NSA certifies to the Attorney General that who it wants to target is an agent of a foreign power. It does so through the means of a two- or three-page submission and an oral briefing.
Zwillinger’s testimony lends support: “In the 2008 case, the question was […] the lawfulness and constitutionality of the directive. The court relied heavily on the minimization of the targeting procedures to say that the procedures in place were sufficient to provide constitutional protection. The provider never got to see the minimization and targeting procedures and, had it not been for the leaks, it’s not clear we ever would have seen them. So […] without seeing some of the factual basis makes it very difficult to present a constitutional argument about whether the safeguards are sufficient.”
class="pullquote">“Notwithstanding much that has been written in the press, the FISA court is a national treasure.
James Baker, the third panelist alongside Zwillinger and Carr at the PCLOB hearing, served as Foreign Intelligence Policy Counsel with the Department of Justice from 2001 to 2007. It was Baker’s job, in his role at the DOJ, to point out to judges like Carr any new or unusual surveillance techniques or requests the government wanted to use. Baker was, presumably, one of the government lawyers who would pull judges aside ex parte to discuss classified documents, while Zwillinger was forced to wait it out in the hallway. Having worked closely with the FISC, Baker seems to have formed the opinion that the court functions very well.
It is, in fact, “painful” for Baker to see that many Americans don’t share his point of view.
“Notwithstanding much that has been written in the press,” Baker testified, “the FISA court is a national treasure. It has done its job in exemplary fashion during wartime.” Apparently — and Baker does seem quite earnest — we are to take him at his word about how well the FISC works in balancing the interests of national security and citizens’ privacy.
The FISC may very well be a national treasure. It may very well have done an exemplary job. But this contention, like the contention that the FISC is nothing more than a rubber stamp, is beside the point. Litigating in the FISC is like arguing with a brick wall; you cannot meaningfully argue against the government when there is scant precedent on which to build a case, no true adversarial process as we’ve come to understand one, and where the facts on which the government relies to make its case have been attacked with a Sharpie.
Anambra markets shut today to enable traders vote enmasse …
BY OKONKWO EZE, OnitshaMarkets in AnambraState have been closed down for business from today till Monday, next week to enable all the traders participate actively during the voting exercise.The President of Anambra Markets Amalgamated Traders Association (AMATAS), Chief Okwudili Ezenwankwo who disclosed this yesterday in a telephone chat with newsmen, said every trader who has voter’s card must exercise his or her franchise, as a civic responsibility.Ezenwankwo further disclosed that all the markets, including Onitsha main market, Ose-Ekwodu, Ochanja, Nnewi markets Aguata and Awka markets would remain closed till that Monday, adding that security operatives have been directed to guard the markets within their localities.Also contributing, the Publicity Secretary of AMATAS, Uzor A. Uzor, said they were not necessarily closing the markets because …
Markets in AnambraState have been closed down for business from today till Monday, next week to enable all the traders participate actively during the voting exercise. The President of Anambra Markets Amalgamated …
The Bill and Melinda Gates Foundation is a private juggernaut when it comes to education research and policy. In recent months, as Congress has faced education-related issues ranging from the fiscal cliff and sequestration to a failing to reauthorize federal student loan rates, the government shut down and impending retooling of the Higher Education Act (HEA), the Gates foundation has sponsored dozens of research projects designed to offer guidance as to the future shape of Higher Ed in the United States. At the forefront is Melinda Gates. According to the Associated Press, Gates, easily one of the most influential women in American education, said she gives the U.S. public school system a C-plus, but adds there are spots of improvement that give her optimism…
The Bill and Melinda Gates Foundation is a private juggernaut when it comes to education research and policy. In recent months, as Congress has faced education-related issues ranging from the fiscal cliff and sequestration to a failing to reauthorize federal student loan rates, the government shut down and impending retooling of the Higher Education Act (HEA), the Gates foundation has sponsored dozens of research projects designed to offer guidance as to the future shape of Higher Ed in the United States. At the forefront is Melinda Gates.
According to the Associated Press, Gates, easily one of the most influential women in American education, said she gives the U.S. public school system a C-plus, but adds there are spots of improvement that give her optimism for the future.
Gates said she bases her assessment on international comparisons of student achievement and on the fact that only a fraction of American high school students are ready for college when they complete their studies.
“I see pockets of improvements. The neat thing about the pockets of improvements is they’re getting larger all the time and they’re across the nation,” she told The Associated Press during an interview this week in her Seattle office overlooking the Space Needle at the Bill & Melinda Gates Foundation.
Those pockets are growing in places like New Orleans and in Florida, New York, New Orleans and Colorado, Gates added, because districts are talking to each other and sharing their best practices.
For the past decade, the Gates Foundation has studied education, influenced public policy and spent billions of dollars toward improving student outcomes by supporting education reform and demanding better results. Since 2000, the foundation has spent about $5 billion on education grants and scholarships.
Their focus has influenced the national agenda, as the U.S. Department of Education has pushed for similar reforms such as adoption of the national academic standards known as the common core, as well as insisting on improvement in state teacher-evaluation systems.
The foundation has given some states money and assistance to prepare their applications for federal grant programs and some top officials in Washington, D.C., are former employees at the foundation in Washington state.
Some see the foundation as a critic of American teachers because of their emphasis on teacher evaluations, but Gates said that impression is wrong. She hopes teachers see the foundation as partners in figuring out how to help them do their jobs.
“We fundamentally believe in teachers. My gosh, they’re incredible,” she said, after a day listening to 110 teachers from around the nation compare notes and talk about what they need to improve at a gathering at the Seattle foundation.
At a forum for teachers and foundation staff on Tuesday morning, educators talked about needing more time outside the classroom for training and collaboration.
“Time is a great barrier to the many innovative things we would all like to do as teachers,” said JoAnn Miller, a biology teacher in Oconto Falls, Wis., who was one of three educators sitting on the podium with Gates.
The relatively new teacher, who came into the classroom seven years ago after serving in the U.S. Navy, would like to see protracted mentorship programs for teachers and more time to work together on self-evaluations.
Gates said the foundation is conducting experiments in Fresno, Calif., and Bridgeport, Conn., to see how districts can give teachers more planning and training time.
She said teachers need some of that time for learning about the new national academic standards known as the common core, which have been adopted by 45 states and are considered by Gates to be one of the most important education initiatives right now.
Also on the top of the foundation’s agenda is improving teacher evaluation systems and professional development. The foundation’s third main education initiative involves helping teachers use technology to support their work, such as online forums for sharing lesson plans.
“I know the difference a great teacher can make,” said Gates, who has three children, one each in elementary, middle and high school.
One of the foundation’s first big education initiatives focused on creating smaller schools out of large comprehensive high schools.
The widespread and expensive experiment was considered mostly a failure by education experts, but Gates said the small schools initiative helped the foundation learn what was really important: the teacher at the front of the classroom.
That’s what led to years of research on what makes a great teacher and how schools can use various evaluation methods to study teachers and help them improve. That initiative is now influencing many states in redesigning their teacher evaluation systems, at the insistence of the federal government.
The foundation also has invested money into charter school networks and continues to support charter schools as laboratories for innovation, Gates said.
“You get these pinpoints of light from charter schools,” she said, adding that parents can evaluate their own children’s schools by looking for successful reforms first tried in charter schools.
Gates said she is very excited to see charter schools finally coming to her home state. Last November, Washington voters approved adding up to 40 of the independent public schools within five years.
