Showing posts with label Jane Jacobs. Show all posts
Showing posts with label Jane Jacobs. Show all posts

Sunday, December 23, 2018

Amazon Headquarters Lands In Long Island City: What Happens When Our Elected Officials Hand The Task of Governing Over To A Private Sector Corporation

I remember the young and tender age I was when I was horrified to have explained to me the concept of “the company store,” the store in the company-owned town, which was the only place to buy things, where those things were priced at a price you couldn’t really quite afford so you were perpetually in debt to the company, which was the only employer in town, that didn’t pay very much so that you could never earn enough to leave town. . .   Peonage!  My mind boggled at the concept— to be so unfree, cut off from any choice!   Could such inconceivable traps have ever existed?

Symbolizing how absolutely closed the system was, some companies even issued their own currencies, their own “money” or company “script” to pay workers’ salaries that they would have to spend at the company store.   Safely in the past?: Just a few years ago, a division of Walmart (Wal-Mart de Mexico or Walmex) was doing this with its Mexican workers paying workers with vouchers, in lieu of cash, redeemable at its outlets until the Mexico’s Supreme Court ruled this violated the Mexican constitution.
       
Imagine the way that a private corporation could once take over and become everything!

These days Amazon, famous for paying its workers low wages, has just become the second biggest U.S. Company as of September 2018.  We think of Amazon as having low prices, unlike the prices of the company store that were always too high, but it is becoming increasing hard to shop elsewhere and the real price we are ultimately paying may be an illusion as Amazon is allowed to run rampant as a predatory monopoly putting all other competition out of business.

Amazon’s inescapability will be brought home for New Yorkers in another, yet more intense way now that Amazon is landing a “headquarters” in Queens’ in Long Island City.  Flexing the musculature of its enormous bigness quite openly, we see Amazon being allowed to take over our city’s governance with New York state powers be turned over as well.  City and state officials are aiding and abetting Amazon in the process are letting Amazon do that.  That is thanks principally to Bill de Blasio as New York City's mayor and Andrew Cuomo as New York State's governor.

State and City Subsidizes For Amazon- A Popular Topic

The first thing you hear about Amazon’s plan to land a “headquarters” in Long Island City is that in exchange, to “lure” Amazon here, it will be getting an amazing glut of subsides including tax exemptions, from both the city and state plus the federal government as well.  How much?: It’s clear that the amounts can only be spoken of in terms of more than a billion+ dollars multiplied by what?  The estimates of the total subsidies (which we will have to come back to) range.  As they were calculated and negotiated in secret and have not been thoroughly or openly vetted by any economists, we should not make the mistake others may make of pretending that we truly know much about this deal so soon after its revelation.  There are even nondisclosure agreements about making much of this information public that apply to the future.

The most fitting quick observation about these massive subsidies is that other tech giants, Google, Facebook and Twitter, all have very sizable presences in New York City with none of them receiving such subsidies.

Amazon "Give Backs"?/Sizable Acreage

The next thing I heard (on the radio- perhaps a WNYC radio excited announcement of the deal?) was how Amazon was expected to be “give back,” or might “give back” in things in return. . . .  It’s said that Amazon with its development partners will “build a 600-seat public school, affordable space for manufacturers, arts groups and early-stage tech companies, and a 3.5-acre waterfront esplanade and park” while building “1.15 million square feet of office space” Anable Basin properties are part of the more than one million square feet of property Amazon is expected to take over.  (One million square feet is 22.9 acres, comparable to the Atlantic Yards site excluding the additional eight acres owned by developer Forest City Ratner before that Ratner mega-project was launched.  Last year, a plan to rezone 15-acres in the basin area was being spearheaded by a family-owned plastics factory (That company is Plaxall) that controlled 12.6 of those acres.  Amazon’s plan involves taking over the bulk of that land– but not all the family-own acres– plus obviously more elsewhere.)

New York Times architectural critic Michael Kimmelman, who sometimes splits the baby trying to make happy both activists and the powers-that-be, made the embarrassing suggestion that rectification could be made with respect to Amazon’s arrival if Amazon invested in NYC’s “public libraries” and “local school programs.”  See: Michael Kimmelman’s Unfortunate Suggestion That Amazon Invest In NYC’s Public libraries (per Eric Klinenberg)- See: “Amazon’s HQ2 Will Benefit From New York City. But What Does New York Get?” -  Kimmelman balanced his essay's seeming enthusiasm for Amazon's arrival in this respect slightly: He contrapuntally glowered about the Amazon giant’s plunking down here and the “insularity” and libertarianism of the tech industry in general.

Do we really want “gifts” or “give-backs,” from giant mega-monopolies, so labeled in intentionally confusing narratives as we allow such entities to take over sections of the city supplanting government, and doing so in the name of `private/public partnerships'?  We’ve seen this before. For instance, when the MTA, sending its head Joe Lhota to a ribbon cutting was promoting a “$76 million Barclays Center subway station” as a `gift' from Atlantic Yards developer Forest City Ratner. The notion gets pushed with the too-good-to-be-true con that “not a cent of it came from taxpayers’ pockets,” despite the fact that, all told, Forest City Ratner was walking away with overall project subsidies totaling $2 - $3 billion.

Last week there was a NYC Public Advocate Candidates Forum in Brooklyn Heights.  Sixteen self-proclaimed candidates for that city-wide elected office took part in panel discussion (and a few additional candidates who have thrown their hat into the ring weren't there).  Amazon was naturally discussed.  It was discomfiting to hear how many of those candidates thought that Amazon's arrival in Queens should simply be accepted as a given and that all that needed to be discussed was what Amazon would "give back," as if this was the way that government should work.  The candidates are too numerous to inventory their Amazon positions here, right now.

Rethinking So-called "Charity" As Wealth Concentrates In Those With Agendas

The unbelievable math, simply ignoring the facts to parade, as window-dressing these ersatz “gifts,” brings to mind conversations now being had advising us to reexamine and not be taken at face value the theoretical benefits of the so-called “giving” by the wealthiest in our nation.   Anand Giridharadas who has addressed the subject in a new book “Winners Take All- The Elite Charade of Changing the World” has questioned the ethos where “The winners of our age must be challenged to do more good, but never, ever tell them to do less harm.”

More succinctly, Mr. Giridharadas has said that while “giving back” sounds nice, its not the same as “taking less.”

Furthermore, given the difficulty of “looking a gift horse in the mouth,” such private sector “gifts” are harder to criticize than what is provided by elected officials.  That sadly is the case even when such “gifts” reflect an agenda on the part of the wealthy donors and an effort to shape the world as they would like to see it shaped.  Take, for instance, this undemocratic result: how a school district can wind up with less funds for what the public wants funded when the (Bill and Melinda) Gates Foundation pays the school district on condition that it divert its available funds away from other expenditures that were the district's priorities; instead the funds go to a questionable pet project the foundation is promoting.  Or very similarly, consider the funds that get advanced to pay for schools to be converted into private charters?

Under those circumstances, do we want our public schools furnished as gifts from the private sector?  Isn't it preferable to have public services provided by our own elected governments whom we can ultimately hold to account?  (If we don't want our schools taken over by the private sector, what about our libraries?)  But what is, in fact, happening in this day and age is that we are more and more, in all sorts of ways, turning our governance over to private corporations like Amazon.

David Callahan whose new book is “The Givers: Wealth, Power and Philanthropy in a New Gilded Age,” writes how, as government is starved and retreats while the influence of the superwealthy increases, the new `philanthropies’ have become “a much stronger power center,” that “in some areas, is set to surpass government in its ability to shape society’s agenda.” Callahan has also previously pointed out that this “growing say over central areas of civic life like education and public parks . . is often wielded against a backdrop of secrecy.”  As that shift in influence occurs, it is often with the superwealthy like Bezos, the world’s richest man, contributing to that starvation of government as, for example, he sidesteps payment of sales tax.

Not Playing Fair Amazon Takes More, Never Less

Let’s be clear, despite some similarities in the eyewash aspects of it, Amazon’s dealings with respect to coming to Long Island City were not an example of such `philanthropic’ equations: What transpired, with respect to Queens was supposedly in `negotiations,’ supposedly adversarial.  However, with it being mostly all in secret, it was apparently mostly about the government’s surrendering of governance decisions and the norms of government supremacy to give Amazon things it was demanding, things there is little reason to believe Amazon deserved or should have been given.

It can be readily argued that Amazon has never been about playing fair, that its extraordinary growth (while paying shareholders little) has been about benefitting from a tilted playing field, not paying sales taxes, taking advantage of its monopoly status to squelch competition.  It's resulted in a huge amount of value others have created in the economy being reshuffled to wind up in the Amazon/Jeff Bezos coffers.

It is not in Amazon’s nature to “take less.”  When Seattle passed a small tax on businesses making more than $20 million in gross revenue in order to address its homeless crisis (greatly acerbated by skyrocketing rents), Jeff Bezos and his Amazon, Seattle’s biggest employer and the second biggest company in the United States, used their political heft to crush the tax, getting it repealed.  That was the absurdity even though Jeff Bezos as the world’s richest man has been calculated to be making “roughly $191,000 per minute” while the median Amazon employee’s salary is just $28,000 and many of Amazon’s workers, impoverished by the low wages the monopoly pays, collect food stamps.

Amazon's "Headquarters" Bidding War Fake Out

The huge subsidies that Amazon is to get coming to New York are because Amazon used its monopoly hugeness to announce that it was holding “an auction” amongst American cities to locate its “second” (“HQ2") headquarters.  That proved to be a giant fake-out: Amazon is not delivering its end of what it advertised; its so-called “second headquarters” will just be some, maybe not all, of its current growth and expansion at two locations, New York City and Crystal City, Virginia just outside of Washington, D. C. and only a “stone’s throw away from the Pentagon.”  (So recycling these hyped up baloney terms is NYC getting "H2Q/2" or maybe "H2Q3"?)

In other words, unconstrained by anything that was "bargained for," Amazon is simply following through on what it likely wanted to do anyway, have a major presence, and therefore influence, in the nation’s political capital and in its financial capital, the nation’s two major power centers.  Ask yourself why you think Jeff Bezos bought the Washington Post; it's for the very same reason.  This division putting some of the Amazon offices in a separate location near the Pentagon will probably also help Amazon manage the flow of those of its workers needing security clearances to do the military work Amazon does for the Pentagon and CIA.

The deception of the “auction” was exquisitely characterized by New York State Assemblyman Ron Kim (also one of the announced candidates running for Public Advocate) who wrote an pre-announcement opinion piece opposing Amazon’s Long Island City arrival with law professor and sometimes political candidate Zephyr Teachout.  Ms. Teachout, an expert and activist with respect to corruption, has been an alert critic of the way that monopolies are taking over our economy together with the opposing American tradition that says they shouldn’t, because monopolies make slaves of us.  In 2015 she gave an address at Cooper Union: “The Monopoly Moment: The New Anti-Trust Paradox.”  Assemblyman Kim and Ms. Teachout wrote (in part):
 . .  this whole tournament has been a sham. There is no HQ2. Instead, Amazon is expected to announce a fairly routine expansion, adding new satellites in Queens and in Northern Virginia. The countless hours spent courting Amazon were undoubtedly valuable for Amazon: the company gained free media coverage and untold amounts of economic data from each bidding city. But it has been a terrible waste for those cities and states whose public servants labored to win a prize that would never materialize. Even for the biggest Amazon boosters, such casual dishonesty should be cause for consternation. It’s like getting a marriage offer along with a confession of infidelity.

    * * *

 If Amazon indeed locates a substantial part of its business in New York, serfdom is the style of “partnership” the city should expect. Despite the familiar promises, Amazon is not a good partner. Not for the cities it occupies, not for the merchants who depend on it, not for the workers it employs. The company does not seek partnership; it seeks control.
See: Opinion- New York Should Say No to Amazon- A city that thrives on the energy of its neighborhood merchants should not offer incentives and giveaways to an internet giant known for squashing small businesses, November 9, 2018.

Government's Surrender of Its Real Estate Tax Power

One of the fundamental government powers that will be surrendered in the Amazon deal is that Amazon will not pay real estate taxes.  Instead, the Amazon section of the city, carved out from the rest of the city will make payments in lieu of taxes pursuant to a “PILOT” agreement.  All the reasons this will be attractive to Amazon are reasons it will not be good for the public, that includes things like suspicions about the amounts paid, inability to challenge and rethink them going forward, and, like the increasing patchwork of other areas affected by such PILOTs (Brooklyn Bridge Park, parts of Atlantic yards/”Pacific Park”), being cut off from the vicissitudes of the city and communal obligations of all New Yorkers to address them.

Government's Surrender of Land Use and Zoning Powers

Another of the fundamentals of local governance surrendered to Amazon will be zoning and land use controls.  Density and how the land will be used will not be subject to the normal way such controls are supposed to be thought through and established with the normal City Council and community reviews.  Just one way this is showing up is that Jeff Bezos has been promised his Amazon site will come equipped with a helicopter landing pad.   Helicopter landing sites are a serious land use issue.   Helicopters are dangerous, which is why, after a 1977 accident, the helicopter pad atop the MetLife building, formerly the PanAm Building is no longer active.   Helicopters are also extremely noisy, not to mention, as anyone who has been around a landing site knows, their fuel has a pronounced unhealthy stink to it.

One Way Government Power Is Lost: Regulatory Capture

The surrendering of these governmental powers results from the involvement of the state’s Empire State Development Corporation (ESDC or ESD), a quasi-governmental, unaccountable public benefit corporation that is notorious for its being subject to “regulatory capture,” which is to say that rather than being careful to ensure that public benefits are achieved, the agency answers to its private developer clients (in the case it will be Amazon and its agent developers) to give them what they want.

Privatizing Government's Power of Eminent Domain (To Push out Competing Economic Life)

Another power that ESDC has is the power of eminent domain, the power to condemn and take property from other private landowners for “public use.”  In recent years, as with Atlantic Yards, that “public use” has meant giving land or property over to another more favored private developer.  In the case of Atlantic Yards it was used to acquire land to build a private arena (infamously named "Barclays").  That use of eminent domain may not have been actually necessary given that Forest City already owned other adjacent property.  Eminent domain was also used to a very large extent push out the competition of other developers building in the Atlantic Yards vicinity. . .  Oh, wait– pushing out the competition?– Exercising of that superpower of government sounds like a perfect match for our Amazonian outfit.

. . . Before government steps in to pick the winner, people should stop and think.  Such shoving aside of other economic life for the promises that a property owner/developer with the political heft theoretical offers when asking that these powers exercised on its behalf often doesn’t go very well at all.  When the Supreme Court’s ruling in the Kelo v. City of New London case validated such shenanigans in New London, Connecticut, a huge swath of land was cleared to be turned over to Pfizer.  The land, all other properties removed from it, wound up as an abandoned, empty grassy field.

Forest City Ratner, taking over with eminent domain the 22 acres that is formally considered Atlantic Yards project (distractingly renamed "Pacific Park" out of embarrassment and to side-step bad press), has probably slowed the development in the area where it supplanted its competitors.  Forest City Ratner (its heirs and assigns including the Chinese government) has kept few of the promises Forest City Ratner made in connection with everything it was given by government officials on a preferential, essentially no-bid basis.  That mega-project, once projected to be complete in 2013, is years, perhaps decades away from completion.  At one point the revised estimate of the then head of ESDC was that it could take perhaps 40 years in all to complete.  Meanwhile the developer has destroyed affordable housing it will never replace.
 
Because ESDC’s powers are so phenomenal, its procedures require that it only come in to exercise its powers in an area if there is a letter from the locality (in the case New York City) inviting it in to supersede local laws.  In this case that letter is probably being delivered by Mayor de Blasio.  However, perhaps to give de Blasio cover, there was another letter signed by a slew of local electeds, city council members, saying that they wanted Amazon to come to New York.  These city council members are now, en mass, disavowing what they previously signed.  Time will tell whether their display of this announced change of heart will evolve into effective action.

Supplanting Other Economic Life With Subsidies And Preferences (Falling Short of Eminent Domain)

Whether or not ESDC actually exercises its condemnation powers in any respect, the preferences and subsidies that are to be given Amazon will have an exiling effect pushing out others.   Maybe the Amazon plan will ultimately provide “600-seat public school, affordable space for manufacturers, arts groups and early-stage tech companies,” but at a Department of Education building at 44-36 Vernon Boulevard, approximately 1,000 staff will be kicked out of the area.  The cost for them to pull up stakes and rebuild is probably not being calculated.  Further, with the redirection of two sites intended for residential development to Amazon, those sites will not produce the approximately 1,500 units of affordable housing that was in the works.   So that lost housing must be considered as another cost.

All of the preferences and subsidies for Amazon will serve to push out, displace and deprive of opportunity other economic activity that would be looking to have a place in Long Island City’s relatively hot and active real estate market.  There is a flip side too: Those pushed-out competitor businesses will also be unhappily affected by diminished city services with Amazon-occupied properties subtracted from the tax base.

Our Government's Bet on Amazon Could Align New York With Amazon's Policies

When the government is incurring so many costs on behalf of Amazon, when it is putting so many eggs in the Amazon basket, it can affect long term alignments. . . . When I was at the state finance agencies we bonded out the state’s settlement income that resulted from successfully suing the tobacco companies, when New York State joined as plaintiff with other states around the union represented by their attorneys general.  What this meant was that the annual amounts that the tobacco companies had agreed to pay New York State as damages for dissemination of false and misleading information about cigarettes plus the consequent harm to the health of citizens and increased medical costs to the state were collected up front by the state through our issuance of billions of dollars in bonds, which were to be paid off over time from the payments the tobacco companies were obligated to make under the settlement.

Given the bonds were supporting the tobacco companies’ payments, I remember being personally worried that the state, wanting its bonds not to default, might acquire a vested interest in the continued financial health of the creditor tobacco companies through the issuance of the bonds.  I worried that the state might therefore want company cigarette sales to do well so the companies would always be able to make the payments unhampered by declining consumption.  But, for the very reason that the states had sued the tobacco companies, the state still needed to pursue health, safety and welfare goals; it still needed to continue to exercise its police powers to cut down on smoking and run tobacco consumption prevention programs.  In the case of our New York State bonds, that likely conflict of interest was forestalled through the purchase of bond insurance: If defaulting tobacco companies didn’t make their payments the bond insurer would have been left holding the bag after paying off the bond holders; it would be the state's problem.

Quite surely, one reason Amazon is moving here to the financial capital is to more closely align itself with the powers here.  But New York, as a policy matter, has to think about whether it will want to endorse Amazon’s monopoly practices.  It will also need to sort through its position on Amazon’s involvement and roots in the military, Amazon’s relationship with the CIA and the general ongoing implications respecting surveillance as the tech sector of the economy evolves.  It is worth remembering that once upon a time New York, a financial capital in the 1800s, was a northern city, but because of New York banks investing the cotton trade and plantations long after the legality of the slave trade itself was ended in the United States in 1807, New Yorkers were complicit in the perpetuation of slavery.
                                               
It’s easier to allege what you are that you are acting in a morally neutral way, that what you are doing is “just business,” if you don’t have sunk costs invested someone else's enterprise.  If your investment means that you have essentially become their partner, you will be quite reluctant to see their business succumb.

Does Alliance Between Government and Monopoly Produce Fascism?

Law professor Tim Wu, who ran for the Lieutenant Governor slot on the ticket with Zephyr Teachout when she was running for governor of New York State has his own anti-monopoly ideas.

He warns of a link between monopoly control and the rise of fascism and totalitarianism. 

Mr. Wu who has already written two excellent books, one “The Master Switch” helped earn him the title as “father of the concept of net neutrality.”  He has a new book out:  “The Curse of Bigness: Antitrust in the New Gilded Age.”   He recently adapted his book into an op-ed for the New York Times Sunday Review section: Be Afraid of Economic ‘Bigness.’ Be Very Afraid.-
In the 1930s it contributed to the rise of fascism. Alarmingly, we are experimenting again with a monopolized economy.  November 10, 2018.

Explaining how control by monopolies contributed to the rise of fascism in the 1930s, particularly in Nazi Germany, Wu explains that “extreme economic concentration” creates economic conditions ripe for dictatorships when “democratic accountability” is avoided as loyal alliances are formed between those in power and large enterprises that then feel themselves to be above the law.  He points out how there is “there is a direct link between” such concentration “and the distortion of democratic process” given the escalating imbalance of power as huge corporations pursue their political goals.

In order to flat out reject it, Mr. Wu alludes to a line of thought, championed Robert Bork (of Saturday Night Massacre and rejected-supreme-court-nominee fame) and the “Chicago school” of law and economics.  Bork and the Chicago school argued to change antitrust law by saying that antitrust law should not concern itself with the political implications of concentrated economic power.  Wu concludes, rejecting that notion as false, saying:
We have forgotten that antitrust law had more than an economic goal, that it was meant fundamentally as a kind of constitutional safeguard, a check against the political dangers of unaccountable private power.

As the lawyer and consumer advocate Robert Pitofsky warned in 1979, we must not forget the economic origins of totalitarianism, that “massively concentrated economic power, or state intervention induced by that level of concentration, is incompatible with liberal, constitutional democracy.”
It is probably worthwhile to remember that one of the sometimes used definitions of "fascism" is an alignment that merges government and corporate power.

Will Alignment With Government Allow Amazon To Write The Rules of The Market Place?  

Earlier this year Stacy Mitchell, wrote a cover story for The Nation titled “Amazon Doesn’t Just Want to Dominate the Market—It Wants to Become the Market.– The company is a radically new kind of monopoly with ambitions that dwarf those of earlier empires.” February 15, 2018.

Speaking about Amazon on Democracy Now after the HQ2 deals were announced, Ms. Mitchell said that Amazon, increasingly the gatekeeper, was essentially “privatizing” what should be an open market where the rules that govern the buying and selling of goods are set by the public and open to view.  Instead, Amazon is making commerce its own private arena where Amazon, in control, “sets the terms of trade” and “basically creates the rules and regulations by which other companies and other participants are allowed to operate” rigging things to increasingly pick “the winners and losers,” and it using that “power to push others out of the marketplace and to gain more power for itself.”

She painted the picture saying, in part:
Amazon is so dominant in so many areas. It’s now capturing one out of every two dollars that Americans spend online. . .   it controls the underlying infrastructure for a lot of the internet—you know, over 40 percent of the world’s cloud computing capacity. It’s increasingly moving into shipping and package delivery. It’s taking on UPS and the Postal Service. It has the largest market share in home voice systems, through Alexa. And on and on it goes.

But I think, rather than think about Amazon as being dominant in any of these markets, the way to understand what this company is all about is that Amazon is about controlling the essential infrastructure that other companies need to use in order to reach the market. Its online platform, more than half of all product searches online now start at Amazon’s website. And what that means is that if you’re any company producing or retailing anything, increasingly, if you want to be able to reach consumers, you have to become a seller on Amazon’s platform. And what that means is that Amazon now controls your business. They have the ability to gather data on what you’re doing, to use that data to compete against you. They can levy a kind of tax on your trade. They can demote you in the search results. They can retaliate against you if you complain.
Remembering how Amazon is a giant information vacuum, sucking up tons of detailed information about its consumers and about the retailers selling to them through Amazon, allows you to understand the worries some have about how Amazon, with its "auction" ploy, managed to induce almost all the major cities in the country, all the economic centers, to collect, organize and supply to it vast amounts of confidential data about local economic activity.  Then think about Amazon's disposition to use information that only it is privy to tilt the playing field in its direction.  Now realize what an advantage the information Amazon now has in deploying its resources in terms of real estate investment and economic planning.

Amazon's Potential To Control Public Discourse

In her Nation cover story Mitchell noted that as it “inevitably transfers wealth to the few” the Amazon setup is also turning over to that lucky elite even the ability to regulate public discourse, plus much more, endowing them with:
the power over such crucial questions as which books and ideas get published and promoted, who may ply a trade and on what terms, and whether given communities will succeed or fail.
Her article points out that Amazon having aggressively sold books and other items below cost shutting down bookstores “in droves,” today “nearly half of all books, both print and digital, are sold by Amazon.”  Mitchell does not take next step of noting that, for a company with such significant CIA and military connections, that’s so dedicated to, and expert at, data collection and consumer profiling, the implications are enormous.

There is a lot to be thought about in this regard, including how Amazon chose to start its business with books, drove the industry and public toward digital books, and now also has extraordinary control other content, particularly the digitally supplied video and film, that is such an important part of the overall milieu for thought and discourse.

Robotic and Remote, Amazon Is Likely Civically Unhealthy and May Quash Innovation

On Democracy now Mitchell also said “our calculations suggest that we’re losing about two retail jobs for every one job created in an Amazon warehouse.”  The hemorrhaging of these jobs may be accompanied by a quashing of future innovation throughout the United States.  In her Nation article, Mitchell cites studies starting with work based on observations of paired cities by C. Wright Mills and economist Melville J. Ulmer that cities with locally owned businesses and local economic power are more economically robust and civically healthy, with a greater variety of jobs and residents more involved in community affairs, more investment in public infrastructure and better at problem solving.

But, probably more important. . .  Amazon’s total control and top-down robotic streamlining of everything it does, might be thought of as benefitting the public with a cost-saving efficiency that justifies all its aggressive usurpations, but near the end of her Nation article Mitchell reminds us that history tell us that “a surge of innovation and start-up activity” followed in the wake of the Federal antitrust actions against, AT&T, IBM, and Microsoft.  That's exactly the same point that Tim Wu made exploring this subject in “The Master Switch,” which also included his exploration of the creativity unleashed in the film industry when its vertical integration, and the related censorship affecting it, was broken up. Thereafter we saw the flourishing of “the new Hollywood era” (late 1960s to early 1980s) with more idiosyncratic, experimental films made with greater license that were more cerebral, edgier, more defiant, moodier, and more erotically explicit.

Jane Jacobs thought along similar lines when she explored where economic vitality and innovation flows from.   In her first, groundbreaking book, “The Death and Life of Great American Cities” (1961), Jane Jacobs celebrated the dynamism, vitality and benefits of diversity in American cities.  She was rejecting the cookie cutter, centrally-produced, sterile monotony, albeit efficiency, of programs like Robert Moses’ exercises in “Urban Renewal.”  Jacobs, in her later books extended these concepts exploring granular examples of what brings vitality, dynamism, innovation and sustainability to national and city economies.

It’s too far afield to go deeply into all of Jacobs' ideas on the subject, but suffice it to say that, in Jacobs’ view, its not the efficiency of centralized planning that generates economic life and vitality; it’s quite the opposite— It’s the very messiness of a lack of centralized planning, and it’s a diverse environment where innovations are generated bottom-up, the result of serendipitous collisions of variety.  To add one more consideration: No doubt the multiplication of conscious observing human minds is certainly another essential part of the equation. . . That’s whatever stock you place in the future of A.I. ("Artificial Intelligence").

To Jacobs the economic monoculture of a car manufacturing city like Detroit, albeit however efficient as a passing phase, was a recipe for future economic stagnation.

The sometimes presumed efficiency of consolidation with top down and centralized control has its defenders.  It was one of the rationales resorted to by the gilded age robber barons of the nineteenth century to defend their aggregating empires.  Such a style of management known as “Weber-Taylor bureaucracy” or “Taylorism” was favored during the era of the Junker Aristocracy and in the Weimar Republic in Germany in the time that led into Hitler's era and was, as Ed D’Angelo (writing about libraries) noted, emulated by Vladimir Lenin who imported it to the Soviet Union.  It also, at that time, influenced the style of management in the United States, “Henry Ford and John D. Rockefeller admired* the German model”
(* Some of the admiration flowed mutually: Hitler had a life-size, full-length portrait of Henry Ford on his office wall in Munich; the Germans awarded Ford and he accepted the Grand Cross of the German Eagle, in 1938, that nation's highest decoration for foreigners; and Ford subsidiaries busily manufactured armaments that the Nazis used against the U.S., trucks and planes.)
Does, such a consolidating, concentrated top down management approach help an economy and  civilization advance long term?  Did it help the Soviets catch up and advance into the modern era?  The Amazon created science fiction series "The Man in the High Castle," which speculatively posits a future that never happened, envisions that if Germany had won World War II to take over much of the United States, German efficiency would have led in short order to a range of technological advances . . .Humm: Maybe--  Or is Jane Jacobs right: Does such the kind of monoculture and lack of variety such as we are getting with Amazon's relentless march of takeovers lead, in the longer term, to stagnation?

Consumerism As The Trap

Why do we let Amazon get away with such bad behavior, especially if it is, in so many ways, so bad for our economic, civic and political health?   In an eloquent sermon at the First Unitarian Universalist Congregation of Brooklyn, Reverend Ana Levy-Lyons, responding to the news of Amazon's arrival and dealing with a number of these issues, suggests that we are trapped by consumerism and the pay-off of what seem to be cheap purchases.

Reverend Levy-Lyons suggested that the way the Amazon world redefines us and appeals to us as just mere consumers flattens our dimensionality as human beings, so that we thus lack the “larger, fuller expressions of our selfhood,” winding up reduced to the part of us that just “takes from the world.”  Her verdict was that it results in a sort of  de-spiritualization and that, for example, as “consumers we want to buy books and music as cheaply as possible,” but as full-fledged “spiritual beings having a human experience on this earth . .  what we may really want is for writers and musicians to be able to make a living.”

The way out is not simple.  Economist John Maynard Keynes described a conundrum, the paradox of thrift, a sort of "prisoner's dilemma" proposition, that if everyone responded to a slow and uncertain economy by acting in their individual self interest to increase their rate of savings to be safe, then everybody would be hurt more as the economy was slowed down even further and made more uncertain as a result.  The Keynesian solution was governmental pump-priming, a sort of resort to collective action. . .

. . . When the question is what to do about Amazon, we may not realize it, but the solution is somewhat similar.  We might not quickly realize the similarity because, instead of thinking about prompting more spending overall, we are thinking about how to refrain from spending that goes to the big giant.  But the answer is again to view the situation in terms of what is best for everyone collectively, and, as Reverend Levy-Lyons suggests in her sermon, to act collectively to deal with it.  This may involve uniting into groups as Reverend Levy-Lyons gives the example of a collective of antiquarian book sellers that acted together in concert to protect one of their group when Amazon was victimizing them. . .

More likely, what is going to be more effective in terms of organizing collective action is for government to do its job in confronting Amazon as the monopoly it is and reining it in, in the ways it needs to be restrained.  That is why it is so unfortunate to see government instead aligning with Amazon and turning the powers of government over to Amazon.

Stalked Like Gazelles

Without collective action, separated from the rest of our herd, Amazon hunts us down like gazelles: Reverend Lev-Lyons began her sermon with a vivid description of how Amazon making “no effort to hide their tactics” during `negotiations' with companies about prices would stalk them “the way a cheetah would pursue a sickly gazelle”: In fact, she pointed out that the Gazelle Project is “what Amazon called a new initiative to work out contracts with small publishers,” and that involved simply making those companies it was `negotiating' with disappear from its internet universe when it wanted to show them they had no negotiating power.  Disappearing from that universe now means companies can't survive.

It may be testament to Amazon’s ubiquity that there is more than one “gazelle” story to tell about Amazon.  In her cover story for The Nation, Stacy Mitchell told a story about the trauma that a sporting goods company, coincidentally (?) named Gazelle Sports, making running shoes, had in dealing with Amazon.  Once popular and highly rated, the company suffered a downturn as more of its shoppers ever more reflexively did more and more of their overall shopping at Amazon. Ultimately:
Gazelle Sports would join Amazon Marketplace, becoming a third-party seller on the digital giant’s platform. “If the customer is on Amazon, as a small business you have to say, ‘That is where I have to go,’” [The founder of the company] explains. “Otherwise, we are going to close our doors.”
Amazon Prime - Amazon Videos

We previously mentioned in passing, "The Man in the High Castle."  That's just one example of a made for internet streaming that is available to be watched free by Amazon Prime members.  Another that you'll hear a lot about is "The Marvelous Mrs. Maisel," that swept up a lot of Emmy Awards while also getting a couple of Golden Globes awards.  You can watch these series for free if you are an Amazon Prime member, which means that you have already pre-paid for Amazon accelerated shipping as an inducement to do all your shopping there.   

One thing that has so far gone unmentioned is that the Amazon Long Island City waterfront site would be just blocks, only a few minutes away, from Silvercup Studios, that's one of the city's very important film studios where, for example, HBO once filmed "The Sopranos."  Specifically, Amazon's offices would be just a fifteen minute walk to the existing studio facilities and perhaps just half that to the planned Silvercup Studios West expansion planned for the waterfront just below the 59th Street Queensborough Bridge.  With Amazon almost singlehandedly replacing all the video stores of the days of yore, being the only source for many films once obtainable there, and now expensively investing in its own video shows, films and content, this should not go unnoticed.

Amazon will have a headquarters in the political capital of the United States and here in the financial capital as well: Maybe Amazon will never need to open another headquarters (HQ4?) in Hollywood, as the entertainment capital of the country.

We Don't Really Know What's Coming

Norman Order, the city’s foremost expert on the Atlantic Yard mega-project and its dealings with ESDC and local elected officials, wrote an analysis based on that history cautioning how little we can be sure of what to expect based on what we know or is promised now: “Atlantic Yards within a few years changed significantly.”  See:  For Amazon HQ2 deal, Atlantic Yards serves as a warning, November 15, 2018 By Norman Oder.

Oder stresses the vagueness of the elusive subsidy calculations and the supposed benefit they generate, plus the lack of transparency that can be expected going forward, the probable lack of enforceablity along with a disinclination to enforce agreements: “If Atlantic Yards is a guide, ESD will be quite accommodating to Amazon, willing to revise agreements and evade transparency.”

What might be coming?  Be open to thinking big--  Previous to the announcement of Amazon’s interest, what is slated to become the Amazon site, land along the 1000 foot long artificially created shoreline inlet known as Anabel basin, was being covered more innocuously as another planned rezoning and real estate development. .  That might involve the tallest building outside of Manhattan, a 700 foot tower.

Calculations of How Hugh The Subsidies?: An Afterthought

Given all of the above, the question of Amazon huge subsidies and just how much they are should be an absurd afterthought.  The New York Times editorialized that Amazon shouldn’t be getting the subsidies calculating those subsidies at $1.5 billion.  See: Opinion-New York’s Amazon Deal Is a Bad Bargain- The city has what the company wants, talent. Why pay them $1.5 billion to come? By The Editorial Board, November 14, 2018.  Another Times article says $1.7 billion.

Good Jobs First,  the watchdog group on economic development incentives, calculates:
The taxpayer costs of these two deals is high, both in absolute terms and on a per-job basis, contrary to Amazon’s artful spin. Together, we believe they exceed $4.6 billion and the cost per job in New York is at least $112,000, not the $48,000 the company used in a selective and incomplete press release calculation. (11/14/18)
Good Jobs First calculates the subsidies of both the New York and Virginia deals as exceeding $4.6 billion and says that separately, just New York State’s award under the Excelsior program is projected at $1.525 to $1.7 billion.   Greg Leroy executive director of Good Jobs First discussed the subsidies along with others on Democracy Now on November 14. 2018 and at 7:30 AM was also on the air on WBAI’s Morning Show that same morning.

Peter Rugh writing in the Indypenent, like many others puts the total subsidies in the $3 billion range, $1.7 billion in subsidies from the state and another $1.3 billion from the city.  He observes that the “state legislature could put a cap on the governor’s Excelsior tax credit program but many in Albany are ready to roll out the Amazon welcome mat.”

On top of this there will probably be other subsidies piled, like perhaps Federal EB 5 program  for financing. One day perhaps we'll see.

Mr. Oder notes at the end of his article, that when Governor Andrew Cuomo was asked;
why the New York incentive package was worth twice as much per employee compared with the one in Virginia, where taxes are lower, Cuomo said he didn’t know how it was calculated. “There’s all sorts of ways to work these numbers,” he said.

That’s for sure. Ultimately, neither he nor de Blasio will be around to do that math, while future governors will have ESD at his or her disposal.
* * *

When, in my tender youth, I heard about the horrors of the trap of "the company store," its seemed almost like an impossible fiction from the past.  Now-a-days, it is remarkable what we seem to take pretty much in stride coming from Amazon . . .  even as, like things once were in those days or yore, Amazon is so all enveloping that it is everything.  Like in those days, it even seems to have become the government.  Meanwhile, "The Company Store"?  We seem to know that now as a clever marketing name that was adopted for a retail outlet .  . . .

. . . Not surprisingly, they too sell through Amazon.    

Tuesday, December 6, 2016

American Library Association Issues "Advocacy Alert" About “Massive Privacy Threat" of U.S. Government Remotely Hacking Library Computers and NYPL Issues “Privacy Policy”- Is “Privacy” At Libraries Actually Protected?

Tuesday, November 29th the American Library Association sent out an Advocacy Alert from about “a massive privacy threat,” the proposed and pending (“Rule 41”) grant to federal law enforcement authorities of “sweeping new powers to remotely hack into computers or computer systems,” including they advised everyone to worry possibly “your library's.”
November 29th American Library Association Advocacy Alert
about "a massive privacy threat” affecting libraries

New NYPL "Privacy Policy"

Early the next morning, Wednesday, Nov 30, 2016, the New York Public Library distributed to its list of library users and patrons its new updated privacy policy.

The NYPL’s new policy, about a year and a half in the making, and taking effect the day of its promulgation, was adopted by its board of trustees on November 16, 2016.  That was about two weeks after Noticing New York ran an article about how the private spy company Booz Allen Hamilton, regarded by experts as an "arm of the [United States] intelligence community,". . .  "with the "federal government as practically its sole client" was hired by the NYPL to overhaul its most important libraries in a scheme that entailed the sale and destruction of the Donnell, Mid-Mahattan and SIBL libraries and the central research stacks of the 42nd Street Central Research Library.  See: Sunday, October 30, 2016, Snowden, Booz and the Dismantling of Libraries As We Know Them: Why Was A Private Government Spy Agency Hired to Take Apart New York's Most Important Libraries And Turn Them Into Something Else?

That NYPL trustees meeting was the same day as the publication of another article in Noticing New York following up on the subject of Booz Allen Hamilton's connection with the NYP, and its plans.  See: Wednesday, November 16, 2016, Too Close For Comfort? Real Estate Addresses- Blackstone, Booz Allen Hamilton, The Libraries & Bryant Park.

Should NYPL library users be assured by the NYPL’s distribution the new privacy policy via an email that the new policy “protects our users, increasing trust and transparency between the Library and the community we serve,” albeit encouraging users to “read the full text” of the policy to understand it?  The policy itself opens with some reassuringly axiomatic words most would find easy to agree with:
 Privacy is essential to the exercise of free speech, free thought, and free association.
The policy tells us that the NYPL “is committed to protecting your privacy, whether you are a user, visitor, and/or donor” and the policy even self-reflexively asserts that it was written drawing “upon industry best practices and national standards for privacy.”
NYPL November 16, 2016 Trustees meeting where new privacy policy was adopted

Bringing Up Privacy In Visit With NYPL Officials and Policy Makers About Future

As it happens, on the very day the NYPL was issuing its new privacy policy, a number of members of the Committee to Save the New York Public Library met with a group of senior NYPL policy and administration officials about their shaping of plans to keep increasingly fewer books at the library while relying on digital access and retrieval of books more or less by default.  I am a member of CSNYPL and was part of the meeting.  (I am also a co-founder of Citizens Defending Libraries.)

At the meeting, I managed to slightly embarrass myself by asking if I could get a copy of the new privacy policy as I overlooked my morning email telling me it was now online.  I was, however, up-to-date enough to ask our host NYPL officials where they were with respect to the American Library Association’s Advocacy Alert regarding “a massive privacy threat” to libraries computers from “Rule 41.”  As they were unaware of the issue I forwarded the ALA alert afterwards.  Also, not presuming, I’ve asked whether the NYPL is a member of the ALA.  The ALA has in the past taken a proactive stance agitating for the protection of library privacy, its council adopting, January 29, 2003, a Resolution on the USA Patriot Act and Related Measures That Infringe on the Rights of Library Users.

If you want to watch something even more prescient, in 2002, the Ad Council ran a 30 second public interest spot about library privacy and the preservation of American freedom.  The advertisement really ought still to be running today.  The advertisement asked the question “What if America wasn’t America?” darkly envisioning a dystopian future with government surveillance agents in the library and it ends instructively with the admonition: “Freedom- Appreciate It. Cherish It. Protect It.” (Citizens Defending Libraries included it as a commercial break as part of our October 2015 evening of library theater and comedy.)

At our meeting with the NYPL officials, I asked about the effect of their shift to digital approach on privacy specifically including the effect of the Communications Assistance for Law Enforcement Act (CALEA) which I noted was something the NYPL board had discussed.  There was no recognition of what the Communications Assistance for Law Enforcement Act was or its effect and it was suggested this could be discussed separately afterward with one of the administrators there at the table responsible.  That official has now given me the name of another NYPL official, the Director of Privacy and Compliance, to follow up with.

Expansion of CALEA And Library Privacy Fights Preceding NYPL's Engagement of Booz Allen Hamilton

When I wrote about the NYPL’s 2007 engagement of the private United States spy firm Booz Allen Hamilton for its reorganizational shedding of its books and physical library resources like the real estate that houses the books I observed the coincidence that the hiring of Booz came not long after it was revealed (May of 2006) that librarians had been fighting the federal government's overreach of secretly taking PATRIOT Act surveillance into the libraries.

The Connecticut librarians involved in that fight were subject to a perpetual gag order by the U.S. government so that it took years before what was going on was finally revealed to the public, and it was finally revealed to the public that May (and thus to others in the library world) only because the Connecticut librarians had finally won their fight.  Might one assume that the revelations must have been big news in the library world at the time with major implications respecting the future of privacy in libraries and the fight to preserve it?

It occurred to me to review NYPL minutes to see what had been observed about this revelation and discussed by the board about preserving library privacy at that time.  Somewhat surprisingly, I found nothing in the NYPL minutes of that time that mentioned the Connecticut librarians fight for privacy or victory.  I did find something else contemporaneous and related, something ominous with respect to preservation of library privacy, and it can be found in minutes just before the revelations respecting the Connecticut librarians secretly fought fight.
February 8, 2008 NYPL minutes: CALEA) may “require” the NYPL “to reengineer their Internet service facilities to enhance law enforcement’s ability to monitor and intercept communications”

The minutes of the February 8, 2008 NYPL trustees meeting reveal that new rules under the Communications Assistance for Law Enforcement Act (CALEA) may “require” the NYPL and other educational institutions “to reengineer their Internet service facilities to enhance law enforcement’s ability to monitor and intercept communications including e-mail and Voice Over Internet Protocol.” 

The minutes note that “groups, including the American Library Association” (the minutes do not say including the NYPL) were seeking a clarification that the new rules would “not apply to certain libraries,” and challenging the extension of CALEA “to services other than communications.”  February 8, 2006 is the same meeting where NYPL financial officer David Offensend advises the trustees of a Bloomberg administration initiative to strip down the capital funds the NYPL had on hand.  A need to augment NYPL capital funds would not long thereafter be cited as a rationale for plans Offensend would implement to sell off the Donnell Library, and the NYPL Central Library Plan involving a consolidating shrinkage, disposing of the central destination Mid-Manhattan Library, the 34th Street Science, Industry and Business Library and the destruction of the research book stacks at the 42nd Street Central Reference Library.
May 3, 2006 Minutes: CALEA (requirement to reengineer the NYPL’s Internet  for enhanced law enforcement monitoring & interception of communication) plus Google digitizing books, eBooks, relocation of the Library’s data center and webcasting.
May 3, 2006 the trustees again discussed, with no further amplification noted in the minutes, the proposed CALEA requirement to reengineer the NYPL’s Internet service facilities for enhanced law enforcement monitoring and interception of communication and also discussed other technological issues: the Google project to digitize its books, eBooks, relocation of the Library’s data center and webcasting of programs.

Although the news would have been out by then, the June 7, 2006 NYPL Executive Committee minutes do not mention revelation of the Connecticut librarians privacy battle.  Neither do the minutes of the first meeting of the full NYPL board after that held on September 9, 2006.
September 9, 2009 minutes: "Guidance" on CALEA monitoring and interception of communication via the NYPL's Internet provider, not the library itself
The minutes of the September 9, 2009 trustees meeting do, however, return to a related subject, the privacy encroachment on library privacy via the expanded CALEA rules.  The co-chair of the board’s Committee on technology advised the NYPL trustees that “the library has now received guidance that its Internet Service Provider, and not the Library itself, will be required to comply with” the recently expanded CALEA rules for federal law enforcement monitoring and communication interception. . .

. . . And apparently there was increasingly more to monitor: Discussing information concerning user patterns and the library's website and its redesign it was noted that the NYPL website had “received over 20 million electronic visits during the fiscal year ending June 30, 2006, as compared to about 14 million in person visits to the Library’s physical facilities.”  (Even if you are going physically to a library to get a physical book there are increasingly reasons to check online ahead of time about whether you are likely to find the book there, whether the library will be open, etc.)

What was not noted in those September minutes is that the “guidance” given to the trustees about how the recently expanded CALEA rules for federal law enforcement monitoring and communication interception were going to be complied with almost certainly flowed from and was shaped taking into account a June 9, 2006 loss respecting the fight for library privacy.  On that date, the United States Court of Appeals for the District of Columbia Circuit decided against a group of higher education and library organizations led by the American Council on Education that had challenged the monitoring and interceptions as unconstitutional under the Fourth Amendment prohibitions on unreasonable search and seizures.  (See: Washington Post- Appeals Court Sides With White House on Wiretaps, by Kim Hart, June 10, 2006.) As the case itself was not as a matter of record mentioned to the trustees one might suspect that the NYPL was not one of the litigant challengers, something I haven’t been able to determine yet.

The ruling in the case, American Council on Education v. Federal Communications Commission, United States of America, Verizon Telephone Companies et al. speaks in language paralleling the guidance to the trustees.  It considered the argument that institutions like libraries were exempt from CALEA (the “information-services exclusion”) “insofar as they are engaged in providing information services.”   But the court upheld the FCC interpretation that providing “information services” did not constitute an outright exclusion to the extent that, hybrid fashion, communication services were also being provided, if they were being provided outside of an entirely private network.  The hookups to communicate with the public outside of the private network are what allow the expanded CALEA monitoring and interception under the FCC’s rule.  As the court expressed it to the extent “these private networks are interconnected with a public network, either the [public voice network] or the Internet, providers of the facilities that support the connection of the private network to a public network are subject to CALEA.”

The Shell of NYPL Privacy Policy Protections- "Legal Requests"

The new NYPL privacy policy advises, under a section titled Legal Requests,” that “sometimes the law requires” the NYPL to share patron information “such as if we receive a valid subpoena, warrant, or court order” and that the NYPL may share information “if our careful review leads us to believe that the law, including state privacy law applicable to Library Records, requires us to do so.”  The section doesn’t warn library users that the modern day version of wiretapping, the reengineering of “Internet service facilities to enhance law enforcement’s ability to monitor and intercept communications” under CALEA’s expanded rules would happen through compliance by the NYPL’s “Internet Service Provider, and not the Library itself.”

The NYPL policy doesn’t suggest that if, in the very likely event subpoenas go to the NYPL’s “Internet Service Provider” instead of the NYPL, the NYPL is then itself quite unlikely to see any such subpoenas or `carefully review’ them at all.  Nor, does the policy suggest how often information is obtained these days without interested parties ever seeing subpoenas, warrants, or court orders.   Probably what “careful review” tells anyone these days about what “the law” can require is that, no matter what you have formally received from the government, little should be assumed about the privacy of any exchanges on the Internet.

There is one section of the NYPL’s privacy policy that warns that the NYPL uses “third-party library service providers and technologies to help deliver some of our services” and may share information with them for which the NYPL doesn’t assure privacy, but this doesn’t seem to be a warning about the NYPL’s internet provider(s) or CALEA monitoring or interceptions.

It reads:
      2. Third-Party Library Services Providers.  We use third-party library service providers and technologies to help deliver some of our services to you.  If and when you choose to use such services, we may share your information with these third parties, but only as necessary for them to provide services to NYPL.  We may also display links to third-party services or content. By following links, you may be providing information (including, but not limited to Personal Information) directly to a third party, to us, or to both. You acknowledge and agree that NYPL is not responsible for how those third parties collect or use your information.  Third parties must either agree to adhere to strict confidentiality obligations in a way that is consistent with this Privacy Policy and the agreements we enter into with them or we require them to post their own privacy policy.  We encourage you to review the privacy policies of every third-party website or service that you visit or use, including those third parties with whom you interact with through our Library services.
Perhaps, as you read this, you feel like you’d need a lawyer to understand whether your privacy as a NYPL users is in any way assured.  I happen to be a lawyer myself and find the laws that have expanded surveillance in our country since 9/11 far from readily understandable except to know that those laws are not very limiting to the government and that, even to the extent that they have been, it does not appear they have always been complied with.

A Federal Judiciary Grapples With Protecting Privacy

It is therefore interesting that at the NYPL’s last trustee meeting, the November 16th meeting where the board approved the new privacy policy, one of the two new trustees the NYPL appointed to its board that day was Judge Robert A. Katzmann (the other was Tony Yoseloff).  Judge Katzmann is Chief Judge of the United States Court of Appeals for the Second Circuit.

Although Judge Katzmann was not one of the three judges deciding the case, it was in his Second Circuit Court of Appeals that it was ruled, May 7, 2015, in American Civil Liberties Union v. James Clapper, that the bulk data collection of Americans' phone records by the National Security Agency was illegal.  See New York Times: N.S.A. Collection of Bulk Call Data Is Ruled Illegal, by Charlie Savage and Jonathan Weisman, May 7, 2015.  (As Chief Judge, you can see Judge Katzmann’s name alongside the clerk of the court’s on the “Bill of Costs Instructions” pages of the decision.)

The May 2015 Clapper decision was decided by Second Circuit Court of Appeals partly in the more informed light and public awareness following the 2013 Edward Snowden disclosures about the extent of massive domestic surveillance exceeding what had been represented to the public to actually be happening.

In finding that the surveillance was unpermitted the court said that Congress had never intended to authorize such a far-reaching and unprecedented program, that it was a “a far stretch” to assert “that Congress was aware of” the “legal interpretation” being used for the dragnet collection of personal data,  that the statutes which the government suggested provided equivalent precedents had “never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here.”   The court said that the massive collections of data were untethered from the pursuit of actual investigations and that the “expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”

What happened with respect to the May 7, 2015 Clapper decision afterward is somewhat complex: Congress, which the court thought had not actually authorized the program and its practices, acted to replace it with another program that, putting the responsibility for data collection initially in private party hands, theoretically has more protections for the public, but on August 28, 2015 the May decision was overturned by the Court of Appeals, the practical effect of that Court of Appeals decision being more limited by virtue of the congressional change.

One line of reasoning offered to allow persistence of the various sweeping data surveillance and collection programs by the federal government is the promise that the federal government won’t look at the data collected unless or until it develops an investigative interest in knowing more about targeted individuals it identifies to whom that data relates.

Protecting Freedom of Thought: How Things Can Change, Including Politically
Snowden appearing in "Vice" episode
The United State President currently in office, Obama, is low key, mild mannered, thoughtfully measured and, if you put out of your mind such things as his drone attacks, he gives the impression of generous good will towards most human beings.  No doubt many have not been frightened to think of surveillance tools as being under his control and direction even if they are virtually unlimited in their power.  Notwithstanding, months ago Edward Snowden, being interviewed on an episode of “Vice explicated his warning about “turn-key tyranny”:
Even if you trust the government today, what happens when it changes?  In our democracy we’re never more than eight years away from a total change of government.  Suddenly, everyone’s vulnerable to this individual and the systems are already in place.  What happens tomorrow, in a year, in five years, in ten years, when eventually we get an individual who says, “You know what? Let’s flip that switch and use the absolute full extent of our technological capabilities to ensure the political stability of this new administration”?
. .  He was speaking in the abstract at the time, not about Trump.

Political cultures and environments can change rapidly, sometimes with calculating help from those who have ascended to power.  The Nazi era in Germany and the countries Germany occupied provide examples of how completely countries can change faster than residents could recognize the dire threat they faced in time to flee and save their lives.

Our own country has had its own very recent periods where, with intense monitoring, we have sought to tightly constrain, criminalize and penalize unpermitted political thinking.
New plaque outside my Brooklyn Heights building.  We revere Arthur Miller as a great mind and writer, but also because he refused to "name names" when, only recently in this country, that was an act of incredible courage.  You can watch the video of the plaque dedication ceremony to learn more about Miller's courage with comment about how that relates to today.

Outside the building where I live in Brooklyn Heights we just put up a plaque commemorating the fact that Arthur Miller (October 17, 1915 - February 10, 2005), the celebrated Pulitzer Prize-winning playwright who authored “The Crucible,” “Death of A Salesman,” “A View From the Bridge” and many other great works once lived in the building.  The plaque reads in part:
In 1956, Miller refused to name names when he was subpoenaed by the House Un-American activities Committee.
Throughout the decades that Jane Jacobs was known to the world as a celebrated urbanist thinker she assiduously avoided being pigeon-holed has a Republican, Democrat, Liberal or Conservative.  I am now reading Robert Kanigel’s new biographer of her life, Eyes on the Street: The Life of Jane Jacobs,” and have been surprised to learn that in 1952 (the year I was born) Jacobs, threatened with the loss of her government job, was forced to defend herself against suspicions that her independence of thought made her immoral and disloyal to the United States.  That was despite that fact she had a proven record of writing some very effective “propaganda” on the Unite States Government’s behalf.

Jacobs’ eight-thousand-word defense in response to the accusations of suspicion included:
It still shocks me, although we should all be used to it by this time, to realize that Americans can be officially questioned on their union membership, political beliefs, reading matter and the like.  I do not like this, and I like still less the fear that arises from it. . .

I was brought up to believe that there is no virtue in conforming meekly to the dominant opinion of the moment.  I was encouraged to believe that simple conformity results in stagnation for a society, and that American progress has been largely owing to the opportunity for experimentation, the leeway given initiative, and to a gusto and freedom for chewing over odd ideas.
She had much more to say, of course, including about her abhorrence of the “political tyranny” of the Soviet system of government taking on as its mission “the molding of people into a ‘specific kid os man,’ i.e. ‘Soviet Man,’” that it practiced and extolled “a conception of the state as ‘control from above and support from below’; that controls the work of artists, musicians, architects and scientists; that controls what people read and attempts to control what people think.”  Notice her stress on the relationship between freedom to read and freedom of thought.


Federal Judiciary In Residence at the NYPL Amongst The Trustees

Was any particular purpose intended to be served by the NYPL’s appointment of Judge Robert A. Katzmann as a new trustee?  When it comes to certain of the NYPL’s goals, does this unfold resources for the NYPL to navigate better through the overlapping welter of broad surveillance laws virtually none of us can fully comprehend and quite frequently can’t find out much about?  Does it put the NYPL in a better position to try to protect the privacy of patrons using the library? Conversely, does it create conflicts of interests for the judge if he now hears related surveillance cases?

Interestingly, as previously noted here in Noticing New York, on September 19, 2007, the NYPL trustees were previously advised, that another federal judge in the Southern Circuit who was similarly an NYPL trustee at that time, Judge Victor Marrero, handed down "an important opinion on the USA PATRIOT Act" (September 7th) ordering the FBI to stop its wide use of warrantless, secret "national security letters" (NSLs) to demand e-mail and telephone data from private companies, saying in his opinion:
The risk of investing the FBI with unchecked discretion to restrict such speech is that government agents, based on their own self-certification, may limit speech that does not pose a significant threat to national security or other compelling government interest
“Rule 41”: Another Library Privacy Battle Lost Last Friday, December 1st 


Coverage in The Hill of the more recent proposed “Rule 41” change about which the American Library Association sent out its Advocacy Alert last week explained, “The Department of Justice’s alterations to the rule would allow law enforcement to use a single warrant to hack multiple devices beyond the jurisdiction that the warrant was issued in.”   Opposition to the change was expressed in a letter signed by a long list of organizations (23 in all) that included American Civil Liberties Union, Google, the Electronic Frontier Foundation and two library organizations additional to the American Library Association, American Association of Law Libraries and Association of Research Libraries.  The letter stated the rule change could be “abused to obtain a single warrant to search millions of targets, raising a host of constitutional concerns” and “would permit law enforcement to search the computers of hundreds of entirely innocent crime victims without their consent.”

The letter which also described the “unique harms” of hacking that could also flow out to third parties stated the “consequences of this rule change are far from clear, and could be deleterious to security as well as to Fourth Amendment privacy rights. Government hacking, like wiretapping, can be much more privacy invasive than traditional searches. . .  because judges often authorize these warrants without requiring the government to specify the tactics and techniques that will be used, we simply do not know the full extent of the government’s searches.”  A statement from Robyn Greene, who handles policy counsel and government affairs at New America’s Open Technology Institute, said “This rule change is far too complex and raises too many privacy and cybersecurity concerns for Congress to let the rule go into effect without conducting any oversight whatsoever.”

Unfortunately for us and apparently for our libraries, despite the ALA Advocacy Alert, “Rule 41” took effect December 1st.  Edward Snowden weighed in about it on Twitter: Without a debate or any new law, the rights of every American -- and basic privacy of people around the world -- have been narrowed.  And also: The DOJ's claims are dishonest: #Rule41 substantively changes the limits on the government's powers. The FBI's hacking was just legalized.”

Snowden's "Rule 41" Tweets

Its Policy Notwithstanding, Is Privacy At NYPL's Digital Libraries Assured?

So last week the NYPL sent out to its users the reassuring email that it has a “privacy policy,” and that, with its revisions, the policy along with its `protection’ of library users will increase “trust and transparency between the Library and the community we serve,” telling users that if they read the policy, they will “understand what data we collect and how we use it.”  But is it fair to say that by reading the policy library users will understand what sort of data will be collected when they visit the library electronically or make use of its many increasing electronic features and portholes to access its resources and books?

Is it fair to think there will be privacy in our libraries if efforts to oppose the curtailment of library privacy by rule expansions like the CALEA expansion or “Rule 41” change keep getting defeated?  Is it fair to think that the NYPL's privacy policy assures any privacy if it's actually the NYPL’s “Internet Service Provider, and not the Library itself” that complies with CALEA’s data collection . .  therefore operating outside the circumscribed shell of the NYPL’s privacy policy?

Let's expand these questions to ask big picture: Should we be assured that we will find privacy at the library when the NYPL hired Booz Allen Hamilton, the biggest private spy firm in the nation working for the U.S. Government, as its consultant to structure its reorganizational shedding of its books and physical library resources like the real estate that housing them?  Let’s remember again that the NYPL hired Booz Allen not very long after its board was advised of the expectation that CALEA might “require” the NYPL and “to reengineer their Internet service facilities to enhance law enforcement’s ability to monitor and intercept communications.”

Certainly, Booz Allen, the firm where Edward Snowden once worked, would have possessed extremely relevant and tailored expertise in navigating responses through changing surveillance laws and the practices that implement them, but is it to be legitimately hoped that Booz would use that expertise to enhance and secure library privacy, or ought we instead entertain suspicions about the reverse?

Suffice it to say, that if you visited NYPL libraries like Mid-Manhattan, SIBL, the 42nd Street Central Reference Library or the now destroyed Donnell Library to access books that were then readily available to you on premises (and did not need to be electronically accessed) you were afforded a real and practical assurance of privacy that does not now apply with the various means of accessing books digitally, including connecting through the Internet that you must use now in the wake of changes made with Booz's consulting guidance.

Sacrifice of the Traditional Library on the Altar of Digital Nirvana

At our meeting last week with NYPL library officials we expressed concern about how NYPL library book shelves now sit, apparently unnecessarily, devoid of books.  Through most of the meeting, we heard a lot from the NYPL officials about the glorious benefits of digitizing the availability of books.  Similarly, we were told about what goes along with this, the benefits centralizing the availability of books with the elimination of  “duplicates” of these printed repositories of knowledge- except that it had to be conceded that such cost-reducing cutbacks for libraries also defund publishers and authors.

We were told, however, that the glories of digitization demand sacrifice.   Bill Kelly (William P. Kelly), the NYPL’s Andrew W. Mellon Director of the Research Libraries, told us:
I think it will come as no news to anyone at this table that expenses in the world of libraries as we try to do both print and digital forms become increasingly more expensive.  I would argue that they are not sustainable across time.  This is not an unusual position.  This is one shared across the library terrain.  I’ve talked with Carla Hayden [head of the Library of Congress] about it, I’ve talked with librarians at Cambridge and Oxford, I’ve talked with people in Chicago and California . . . The notion that one library can do all things is no longer a sustainable one . . The task of being able to maintain digital and print material at the same time- That horse left the barn a long time ago.
In other words, if we accept this, those of us who thought that digital tools might make things more affordable so that more becomes possible, and society’s wealth can increase, were wrong:  Digital technology makes libraries as we have known them unsustainable.

I could not listen to Mr. Kelly without remembering that there is a history of previous civilizations collapsing when those now dead-and-buried civilizations decided that their libraries were unsustainable and not worth keeping.  Of course, back then, the libraries that were being abandoned by these declining civilizations were libraries as we have traditionally known them and as they served us over the centuries, not the kind of hi-tech digital operations we are developing now than can do double duty to surveil us as we read.