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January 31, 2006

Preview of Next Year's Oscars

Top Gun 2 : Brokeback Squadron

I love it when the internet meets people with too much free time on their hands.

January 30, 2006

Empirical Proof of TYoH Theorizing

When I said that the "evil" of Google going into China was directly proportional to the effectiveness of the filters (and thus not that evil at all), I didn't expect to see empirical proof so soon. As Paul Boutin points out, the filters can stop many things, but not poor spelling.

There's even better news for lovers of freedom. Somewhere in the depths of the Chinese Communist bureaucracy, some poor bureaucrat has received the sentence of Sysiphus. Day after day, he (or she) must amend the government's list of blocked terms and websites to encompass every possible misspelling, intentional or no. Maybe he has a crack team of random word generators working for him. Maybe he's on his own, concerned every day that his inevitable failure will lead to his unemployment, or worse.

OK, that's probably an overdramatic way of putting it, but the point stands: if the Chinese government wants to engage in this kind of futile effort, it's resources they can't put into more effective oppression.

(link via Instapundit)

January 27, 2006

Is This A School for Mice or Men?

Mice, it seems. The Columbia Spectator today reports that the law school's Lenfest Cafe failed its health inspection.

In its original inspection, conducted Dec. 8, 2005, the cafeteria received 35 points, all having to do with improper food temperature. When re-inspected, Jerome Green Hall was cited for two completely different violations: lack of a three-compartment sink to sanitize serving utensils and evidence of mice.

(Emphasis mine.)

In my first year, mice joined in on Crim Law and Prof. Waldron's Perspective's course. This year they've moved into my dorm. Now they're eating in the dining hall? At this point, I half expect them to scamper across the stage at graduation, receiving little mousy diplomas.

Kudos to the New York Department of Health and Mental Hygiene for putting this information online.

(UPDATE: To provide a frequently-asked-for comparison, Hamilton's Deli scored better than Lenfest (23 compared to 43, lower is better), and their highest recorded violation available is a 38.)

My Girlfriend Was Offended By Brokeback Mountain!

No, not the movie. The lady is a fully paid-up member of the Vast Left Wing Conspiracy (although she's let her membership in People for the American Way lapse), so no overly-lengthy shepherd kiss-fest is going to give her the vapours.

No, she was shocked at the short story. Disgust filled her before she reached the first page. Actually, she was appalled as soon as she opened the cover of the unmanfully short paperback and found not a semi-naked Heath and Jake in full-clinch step-back mode, but instead the engorged price of $9.95.[1]

(That's almost sixteen cents per page. I'm glad she didn't see that the hardcover version goes for $14.95, though there's a 32% discount at Amazon. This for a story that you can find for free with some simple Googling.)

Me, I'm a good little capitalist, and this octavo nearly inspires me to same-sex marriage myself. Heck, if I happened to find the marketing genius, whoever he or she is, who figured out how to sell a New Yorker short story at ten bucks a pop, I'd be tempted to get down on bended knee.

[1]: Did I mention she's been teaching me romance-novel metaphors?

January 25, 2006

More Thuggery, This Time At Georgetown

Via Ambimb, we see that there's been another infantile protest, this time of the Attorney General at Georgetown Law School. This act of staged immaturity consisted of five students in black hoods unveiling a banner with a 'quotation' from Ben Franklin: "Those who would sacrifice liberty for security deserve neither."

How cute. The quote's wrong--it omits the words "essential" and "little" in places that fundamentally alter the meaning--but hell, what's a little accuracy among those who seek to save us?[1]

As always, my annoyance at this kind of stage-stealing performance art doesn't spring from partisanship but a violation of comity. Attorney General Gonzales--someone I'm not averse to criticizing--was introduced by Dean Aleinikoff as a guest of the university, and the demonstration made him a very poor host. The five veiled freedom-fighters--yeah, you're a courageous bunch of fellows, aren't you?--were simply rude to those who organized the event. Freeloaders and freeriders upon the effort of others, they're no better than the bore who shouts down better-mannered guests at a dinner table.

Watch the C-SPAN coverage (if you can stand installing RealPlayer). There was no shortage of speech here. Gonzales' address was followed by a university panel organized to discuss the issue. These valiant defenders of free expression did nothing greater than hijack the footlights, content to bask in their reflected relevance.

If academia still recognized some sense of decorum, these students would be expelled. There is no sign that Dean Aleinikoff has done so.

UPDATE: Fixed a formatting error and link in the original post. Also corrected some bluebooking in the footnote below.

[1]: What are they teaching at Georgetown Law School these days? I'll admit that I'm not the best Bluebooker in the world, but shouldn't the banner read something like:

Those who would [sacrifice] liberty [for security] deserve neither. . . .

In his post, Scoplaw explains that the "paraphrase" was used because the true quotation wouldn't fit. I guess indicating the alterations (to be, you know, honest) would have been a lot less effective.

Has Google Done Evil?

Google enters the Chinese market, and in order to do so has agreed to actively censor materials in its searches that annoy the local authorities. There's a lot of largely unreflective thinking on how this contradicts Google's mission statement, "Don't be evil."


The silliest comparison I've come across finds expression on Publius Pundit:

Google will resist the U.S. government, but won’t stand up in any way to China? Judging by its actions at home, one would think Google to be a pioneer in bringing access to information and resisting attempts from governments to repress it or monitor it. This says that isn’t the case, and it makes me wonder — just a little — what its motivation is to resisting the U.S. government and giving in to the Chinese. Perhaps they should change their motto to, “It’s just business.”

That's apples and oranges. In the U.S. case, Google doesn't want to provide oceans of private data so that Attorney General Gonzalez can make stupid arguments about the efficiency of web filtering. With the Chinese, it's exactly the opposite: Google can filter its searches without moral qualm so long as it's relatively certain that the Chinese people will have freer access to information with Google than without. There's really only two things you need to know to evaluate this: how good is Google? How well do the web-filters work?

We know Google works. We also know that most internet filters are pretty easy to avoid. If the new system is filtering based on government blacklist, ineffective filters have a double benefit: not only don't they stop the flow of information, but they also burn hundreds of man-hours in maintenance time that might be used on some more effective method of oppression. Unless Google is unveiling some vast new technology that will allow the Chinese government to throttle information more effectively through Google.cn, we have a net win for Chinese freedom.

Would Chinese websurfers be better off with Google obstinately refusing to enter the market? Only if one feels that the search engine behemoth is so powerful that the Chinese Communist Party is going to adopt First Amendment jurisprudence in wholesale lots just to get some GoogleJuice.

I'll change my opinion if it turns out that Google has set up a brand new Censorship Division looking into CensorRank technology. Until that happens, consider this my corollary to the Google mission statement: "Most of the time, doing evil very badly isn't functionally different from not doing evil at all."

January 24, 2006

John Kerry: The Gift That Keeps on Giving

The first post from "I Can't Believe I'm Not President" John Kerry on DailyKos should make a Democrat want to forcibly rip the keyboard from his hands so that he may never embarass his party again.

To recap quickly, Chris Matthews made a rather tin-ear comment on the latest from Osama:

This is from bin Laden in the audio today. “There is no defect in the solution other than preventing the flow of hundreds of billions to the influential people and war merchants in America.” I mean, he sounds like an over-the-top Michael Moore here, if not a Michael Moore.

I'd expect liberal outrage from the likes of, say, Peter Daou at the Huffington Post or Matt Stoler of MyDD, or even quasi-anonymous open-letter writers: people who aren't too serious, or if we're being charitable, people who may be writing to a deadline and need an outrage of the week. I would not expect inaccurate calumny from a man who once graced a presidential ticket and is young enough to hope he will do so again. Said Sen. Kerry:
There's something that doesn't sit right with me when, on the day Osama Bin Laden resurfaced in a disturbing audio tape, cable television ends up in a game of name calling as a war protester is compared to Osama Bin Laden.

(emphasis mine) First, let me be accurate. At no point in his post does he directly reference the Matthews statement above, and other pundits have made similar comparisons. On the other hand, Kerry mentions Hardball three times, omits any other cable network, and tags the post with Chris Matthews' name, so I don't think I'm entirely in left field when I connect the dots. (No one else seems to think so, either.)

And here's the problem: Matthews never compared Michael Moore to Osama bin Laden. He compared Osama bin Laden to Michael Moore. That makes all the difference.

The current game of left-wing outrage is Rhetorical Question Bingo, as exemplified by Mr. Daou in his Salon piece. The rules are simple: ask what firestorm would erupt if you replaced Moore with some conservative icon. But even cursory answers to Mr. Daou's silly questions reveal what faux-offense this really is:

  • "Bin Laden sounds like Clint Eastwood": I'm trying to figure out how that's possible. "Go ahead, Bush, make my day," would be obvious, or maybe "Are you feeling lucky, America?"
  • "Bin Laden sounds like Rush Limbaugh": I can hear the opening line of the next bin Laden tape now: "Live from the Excellence in Islam Institute, your host, Osama bin Laden, seated on the prestigious Saladin the Conqueror Cushion. . . ." (probably makes more sense if you've ever actually heard the show)
  • "Bin Laden sounds like Ron Silver": Did bin Laden announce he was playing Alan Dershowitz or start quoting Douglas MacArthur? (I'll admit, I'm not really familiar with Silver.)
  • "Bin Laden sounds like Bill O'Reilly": What's the likelihood that bin Laden is going to start harassing us with conversations about "phone sex, vibrators, threesomes, masturbation, the loss of his virginity, and sexual fantasies"?
  • "Bin Laden sounds like Anthony Rickey!: That one's not on Salon, but man, that would be great! If Bush's War on Terror is going so well that bin Laden sounds like a law school weblogger whose Sitemeter doesn't exactly runneth over, I think we can declare at least partial victory.

The rather serious conclusion from this tongue-in-cheek guide to terrorist comparison? Offense can only go so far, and calls for an apology are unseemly. Was Matthews insulting Michael Moore by using him as the object of comparison? Sure, but only because he was treating the substantive content of bin Laden's statement dismissively, and the comparison showed that he didn't think much of Moore's substantive views. This shouldn't be news. There's no inference that Moore is a terrorist, terrorist sympathizer, aiding the terrorists, or otherwise hates America.

When Matthews compares bin Laden to Anthony Rickey, I'll assume that he means that the most-wanted man in the world can't keep his word-count down. If this subject is enough to get your blood boiling, switch to decaf--and don't run for President.

January 23, 2006

The Myth of the Anti-Roe Majority

Will Baude slums it in the New York Times this weekend (seriously, congrats on that, Will), arguing that if Roe v. Wade is overturned then chaos shall reign and the heavens shall tremble in their moorings. Specifically, he worries that anti-abortion states will not only criminalize such procedures within their own borders but also criminalize crossing state lines for purposes of abortion, curtail the movement of pregnant women through child custody laws, or use extra-territorial provisions to convict women for having abortions in other states. (He also worries that, "Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah's law-enforcement officials from interfering with her decision to get one.") Will is concerned that the federal docket is only kept from such a flood of litigation by the protective dike of Roe.

Of course, Will is engaging in the intriguing game of political haruspicy, divining from the entrails of the body politic what will happen if kings (or here, kritarchs) exercise the royal perogative. All Will's gnashing and wailing rests upon a single assumption: that, in the event of a Roe-reversal, there will be states that in at least the medium term ban abortion.

Many take it as self-evident that no-Roe implies that abortion will become illegal in certain states, and there is some justification for this. After all, there are states that have laws to prohibit abortion in the absence of Roe. But these are all considerations of the very short term, and neglect the beauty of Roe for the cowardly politician. Automatic trigger provisions were enacted by legislators who knew they need never worry about horror stories of women denied access to abortion or especially of young girls dying in alleyways. Much of the "pro-life" movement is bolstered not by any grand moral consideration, but by a rather cynical calculation: when a legislative enactment will have no force, single-issue voters are more likely to punish a politician than moderates. Yet banning abortion, particularly in our sex-saturated society, has immediate (and media-visible) consequences that will swing voters.

Hence, when I run my fingers through the political entrails, my expectations for the post-Roe chaos differs dramatically from Will's. Even if certain states did have automatic bans that kicked in within a few years, these states would change their tune as politicians in anti-abortion states fell to their challengers. Indeed, I would expect that the duct-tape that holds the evangelical and economic wings of the Republican Party would fray even further. The "patchwork quilt" Will worries about would actually cover a much narrower range of issues. Does a woman need to notify her partner, or a child her parents? Can an older man take a child across state lines to get an abortion? But a state using "long-arm" authority to put a woman in prison for getting an abortion in another state. . . . well, let's just say I don't want to be working on the re-election campaign for any Republican who backed that bill.

The abortion battle ended many years ago, and pro-life warriors stand as obstinate irredentists. Roe merely prevents any form of reasonable armistice from being declared, and it is that armistice that would prevent the post-Roe "chaos" Will fears.

January 20, 2006

What is AG Gonzalez Thinking?

Amazingly, Bush may just have lost my vote. Not because of threats to civil liberties, but merely through his administration's ungentlemanly thuggishness with aggregate data and his Justice Department's obsession with Project: No Child Sees A Behind.

When the Attorney General subpeonas Google asking for massive amounts of data, I think it's fair to ask what he wants to do with it. Having read the relevant court document, I've only come away more confused. Let's look at what the government has asked for:

  1. A list of 1 million random URLs available for search in Google. (This down from a request for all URLs available through Google. The mind boggles at the size of that file.)
  2. All queries entered on Google's search engine over a one week period (originally one month)

Those are some big files. While I agree with Chris that the privacy concerns aren't that significant (they're not asking for IP addresses), it still seems like a ridiculous fishing expedition.

The legal arguments for turning over the data are fairly straightforward. AG Gonzalez's memo becomes an exercise in obfuscation, however, when it comes to how all these URLs are going to help his case. The data will allow the Government to "draw conclusions as to the prevalence of harmful-to-minors material on the portion of the internet available through search engines" (Motion at 8) or to "understand the behavior of web users" (Id. at 4). Apparently the AG needs massive data files to conclusively prove that (a) there's a lot of porn on the internet, and (b) people search for that porn. I simply can't believe that the ACLU wouldn't stipulate to those facts. (See UPDATE.)

Of course, one suspects those aren't the primary issue. This elaborate exercise in datamining is actually supposed to "measure the effectiveness of filtering technologies in screening [obscene material]." (Id.) But in the immortal words of Ogden Nash, "You can't get there from here," although I can see some stunningly bad ways to massage this data. For instance, you could have someone trawl through one million URLs and figure out how many were obscene sites. You could then run one week worth of searches and figure out how often those obscene sites appeared. (That's a pretty big task in itself.) Finally, you could measure whether nasty sites still turned up when you added filtering software, from which you'd then derive the "effectiveness" of the filters.

But this result is methodologically flawed. To be fair, one would have to account for which search strings were searching for porn in the first place, an inherently subjective matter. Searches for "breast," for instance, can have any meaning from the pornographic to the medical to the culinary. Further, one would have to assume that the filter is the only source of control withthat comes from filtering software. Most programs include simple add-ons that let parents see what has been browsed on the machine. The most effective "filter"? Simply telling the child, "I can track what you see, and if I find you've been visiting Playboy.com, I'll punish you once for breaking my rules on porn and a second time for not being able to find any better dirty material in all the great wide internet."

That, however, is the closest I can get to "proving" the effectiveness or otherwise of filters from the data the AG wants. The best I can see resulting from this subpeona are some spurious statistical arguments that will "show" that some mythical aggregate internet user will stumble upon pornography once every X number of days. Given that the government's civil liberties credentials aren't everything they could be right now, it would seem prudent for the AG to outline in detail exactly how he plans on using this data before throwing requests for data at one of the most-used (and possibly most-beloved) companies out on the Net.

Then again, I could be missing something. Comments on exactly how one measures the effectiveness of filtering software from these two massive data files (or privacy problems that I might have overlooked) are very welcome.

UPDATE: Above I say that I can't believe the ACLU isn't willing to stipulate to some very broad claims, a point which is flippant enough to obscure my argument. For clarity, I can see why the AG would want some relatively solid data on the prevelance of pornography online, but don't see why one has to subpeona search engines to get that data. Assuming the DoJ has the number-crunching resources necessary to process Google's records if it gets them, it must also be able to send out spiders to index portions of the net, or to run simulated searches based upon the most common search terms used. Certainly this could be handled without the ugly mallet of a subpeona and the thuggish aura it exudes.

January 19, 2006

Why I Love Wal-Mart

George Will today decries what the Post called "a legislative mugging masquerading as an act of benevolent social engineering," Maryland's decision to pass a health care statute that just so happens to apply to only one of the state's employers: Wal-Mart. It's no secret that many liberals despise Sam Walton's big box store, complaining about its obsessively low prices, a dearth of union employees, and its threat to the small-town city center. But this loathing has a broad base: aesthetic revulsion to WalMart has a deep well even among the wine-drinking conservative set:

Outside the most heavily urbanized areas, Wal-Mart typically builds on the edge of town, putting up a huge (and butt-ugly) big box building surrounded by acres of bare concrete parking lots. There are few sights in the American scene less attractive or appealing to the eye.

Now, I'm not about to say that Sam Walton birthed a beautiful baby. On the other hand, I always find it a bit rich when people with expensive tastes lecture me on how much Wal-Mart is a plague on the traditional small town. Maybe it is, but (a) why do they not want small town citizens to have access to even a fraction of the consumer goods they so love, and (b) where are these idyllic hamlets they champion?

I spent two of my adolescent years in the sleepy little college town of Big Rapids, Michigan. In those days, our biggest brand stores were a small J.C. Penney outlet and a decrepit KMart. We had three or four small grocery stores, a number of folksy gift shops, a sporting goods store and a couple of pharmacists who also functioned as the town's best source of new literature. Charming? Sure, although less so in the freezing Michigan winters. You could stock up on country crafts and hard candies at the Emporium, spend a bunch of your paycheck on low-quality overpriced vegetables, and make the choice between overpriced sneakers at the local sporting goods store or the hour and change drive to Grand Rapids and its malls.

Ah, life without Wal-Mart! It was a Rouseauesque wonderland--and about as pleasant as you'd expect such an Erewhon when it met gritty reality. Is Wal-Mart butt-ugly? Yep. But I'm willing to bet that most of the Wal-Haters didn't learn to love science fiction because the widest source of good books--better than the drug-store potboilers--was the used bookstore and comic shop. Wal-Mart is hardly cosmopolitan, but if it merely stocks the latest from Oprah's book club, Toni Morrison comes in worlds above the non-scifi literature of my youth. [1] Or to appeal to Prof. Bainbridge's preferences: if he'd lived next door to me, where exactly was he going to buy his wines? Before Wal-Mart's big-box competitor Meijer, a couple of package shops that mostly catered to college students were the major source of vino. This may not be the preferred choice of the exquisitely educated pallate, but it did increase the quality and variety of locally available wine and encourage the other shops to improve their game.

Were I growing up these days, I don't suppose I'd miss Wal-Mart that much. Now that Amazon has become the online equivalent of a box store, just about any American with a mailbox and a credit card can tap into the vast mainstream of American consumerism. (Then again, not all Americans have access to these, and one suspects Wal-Mart helps them some.) But whatever the case, I'll always think of The Scourge of Progressive Capitalism not as some horrible invader that ruined my community, but the place that gave my old hometown a reasonable place to shop. Nostalgiaville always seems prettiest to those who didn't live there.

[1]: I'm probably undercutting my own argument here. Toni Morrison's Song of Solomon remains in a dead heat with Tess of the D'Urbervilles for Most Boring Volume of Piffle Forced on Me in High School English Class. Still, it would have been nice to have the option to reject it in favor of something better.

January 18, 2006

President Bush, You Are Likely To Be Eaten By A Grue

I may not agree with the politics, but this is a work of pure genius. I should do something similar with Howard Dean.

(Hat tip PF, who must be old enough to remember when computer games came on two 5.25" disks. Who needs a hard drive?)

January 17, 2006

Something I've Learned My Last Semester in Law School

I'm squeamish about mice. Not being particularly bad with insects or spiders, I didn't expect that.

In my defense, this is a limited sort of squeamishness. It involves an unwillingness to clean my dishes six inches away from the garbage bin that seems to be the locus of the mouse infestation while the mice are actually scuttling back and forth. (These little blighters aren't shy, either: they will run from kicks or old sponges being thrown at them, but the mere presence of over six foot of graduate student isn't sufficient deterence. Are all mice this friendly?)

By contrast, I don't really consider my aversion to using the kitchen when there's a dead mouse carcass stuck to the sticky/gummy mousetraps squeamishness as such. I take it as a sign of egalitarianism and enlightened environmental consciousness. I don't partiicularly enjoy cooking with other people in the kitchen, so why should I discriminate in favor of four-legged co-chefs?

January 15, 2006

Law School Creativity

One of my classmates, now finishing her 3L year in England, has recently made it into the top 20 of the Community Communications Network short commercial competition. (See "Stay in Step" under "Community.") It always amazes me how people can find time to make things like this while still in law school.

January 13, 2006

Let's Draft Articles of Impeachment!

Nothing I've read since I last touched on the subject suggests to me that the present NSA scandal will have much in the way of legs, and indeed references to it have largely been overshadowed by the Alito hearings. While there are some interesting constitutional and legal questions, NSAGate lacks one key ingredient necessary to create a proper political scandal: evidence of malicious intent.

Put it this way: unless one already hates G.W. Bush (in which case the evidence is irrelevant), the most the NSA program can be accused of is excess in the protection of American citizens against terrorism. Unless one can some up with a story of the NSA not only stumbling across an innocent conversation, but then somehow using it to a non-terrorist's detriment, there is simply no story here.

Bush's opponents know this, which is why every effort is made to drum corruption up out of thin air. As one critic put it, "One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents." (emp. mine) This is a statement that's technically true, but for there really to be outrage, one needs evidence that Mr. Lederman's grandparents have been spied upon.

Among the radical left, the desperation to find such a hook is shifting from the funny to the slightly pathetic. Take this piece from The Raw Story, "National Security Agency mounted massive spy op on Baltimore peace group, documents show". (Hat tip, as you might expect, to Prof. Leiter, who takes it seriously.) Sounds horrible, doesn't it? And you can expect to see noises like "Well, Bush's NSA is even monitoring Quaker peace groups" from your favorite lefty websites, talking heads and politicians.

But credit to the Raw Story: though they try to bury the reality in the lower paragraphs, they do actually publish copies of the NSA documents that are supposed to get our blood boiling. It turns out that the "spying" done by the NSA consisted of little more than increased security at an NSA facility when this group decided to stage a protest without permission. They monitored the movements of this group on their way to the facility, while there, and shortly after, in a manner that might be slightly overexuberant, but still more policework than espionage. Now I know that among a certain set, the idea that one does not have the right to protest at any place or time of their choosing, including the visitor's entrance of a secure facility, is a sign of creeping fascism. Nevertheless, crying, "Help! Help! We're being oppressed!" at this juncture is not likely to make a mass movement.

Maybe the Republicans should take a hint from the Democratic playbook. Before the 2004 elections, Charles Rangel introduced a bill to bring back a live draft, which prompted enough posts about a hidden administration conspiracy that Republicans eventually had to bring the bill to the floor just to vote it down. It was a cunning bit of PR, and Karl Rove should take the hint: find a couple of moderate or dissenting Republicans and ask them to file articles of impeachment.

If the Democrats tried to impeach, Bush can pretty much expect polls in the high sixties as Republicans paint themselves as strong on security and Democrats seek vainly for a reason Joe Sixpack should concern himself with Fourth Amendment fetishists. [1] At the moment, John Kerry can "joke" about articles of impeachment if the Dems take the House in '06. This fires up the base nicely. So give the Democrats a chance before the election to show where they really stand. If enough Republicans announce an intention to "go along with their colleagues," then Democrats will find themselves having to either vote against the articles (and disappoint their base) or vote for them (and alienate the center).

Ah, one can dream. In the meantime, expect a lot more smoke and mirrors from the far left, a great many more flip-flopping editorials from the NYT, and not much in the way of political impact two weeks from now.

[1]: Yes, the Fourth Amendment is necessary, and we should pay attention to our Constitution, etc. etc. I'm not making an argument here that Con Law is irrelevant, merely that lawyers make the "defense" of the Constitution into a greater issue than it warrants politically. Look at it this way: suppose arguendo that Bush's authorization to the NSA violates an obscure section of FISA, but that he has done so out of a reasonable concern for national security and that FISA really isn't appropriate for handling vast packet-sniffing operations. Failing to punish Bush for this can be looked at as an act of prosecutorial discretion on the part of the American people.

January 11, 2006

Fantasy Taxes, or How Much is that Pixie in the Window?

WARNING: This post contains a long and abstruse discussion of two of the geekiest subjects on the planet: taxation law and massively multiplayer online roleplaying games (MMORPGs). It's quite possible that this much pure geekdom in one place may cause aberrations in the laws of physics or adverse health consequences. The management expressly disclaims all liability for any and all such events. Further (as if this isn't obvious), this post does not constitute tax advice. If you begin to play the highly addictive game Kingdom of Loathing as a result of this post, don't blame me. So far as I know, no support group is available.

(If it's not obvious from the extended discussion, I find tax law fascinating.)

For the last month or so, Heidi Bond and I have been discussing a curious question of tax and online gaming, centering around her fascination with Kingdom of Loathing. It's old news that online games have spawned their own economies, that players sell virtual property online for real cash and even that some Chinese players organize in "gold factories", getting paid to do virtual drudgework so that the resulting booty can be sold to real-world aristocrats with less time on their hands.

I'll admit that I have only a passing acquaintance with Kingdom of Loathing, although the combination of Dungeons and Dragons with Douglas Adams never fails to make me smile. Unsurprisingly given that we're law students, Heidi and I both wondered at a question that has now been raised in the illustrious online pages of Legal Affairs. Given that people are getting rich, how much will the IRS tax you for a Sword of OrcMeat Sandwichmaking +1?

Oddly, this doesn't come up in your standard Federal Tax class. The Legal Affairs article mentions the possibility of getting a private letter ruling from the IRS, and I'm very tempted to try to write one. After all, literally millions could be riding on the answers. [1]

Simple Simon: Trades for Cash
Let's start with the uncontroversial. As Julian Dibbell relates in his article:

In the course of this project, I made a total of $11,000 selling on eBay the items I won playing a game called Ultima Online, $3,900 of which was in the final, most profitable month. I reported my profit to the IRS, and I paid the requisite taxes.

Unsurprisingly, the fact that Dibbell sold magic swords doesn't stop the IRS from taking a cut. There might be some questions as to his basis and the best way of structuring the transaction (and whether it violates Ultima Online's terms of service), but once money has changed hands it's fairly obvious that a gain has been realized.

More Complex: In-Game Trades
Heidi makes the question more interesting: does earning items within the game constitute income that should be declared on one's tax return? As she describes the scenario:

If I [received a very valuable game item, a Talisman of Baio] and sold the Baio on eBay, I'd obviously have to pay taxes on the sale. And if I found a valuable diamond ring while walking through the woods, I'd have to pay taxes on my windfall. So is finding the Baio itself, in the game, a realization event? If I choose to keep the incredibly-useful Baio for myself, without selling it, do I have to pay taxes on the find? What about if I sell the Baio for meat [the KoL currency] in the Mall of Loathing? Is that a realization event?

The answer is not that we can't value the Baio; there's a pretty robust in-game player economy, and regular out-of-game meat sales on eBay. An in-game Baio is worth 98 million meat, and meat goes for about 700K per dollar, so Baios are probably worth about $140. This isn't a difficult valuation problem . . . .

The Legal Affairs article chronicles the author's quest to get an answer from the IRS, but ultimately reaches no conclusion, largely because the author doesn't want to pay to get a definitive answer from the Service.

My guess--and this is very much not legal advice, so if you're currently holding a Wand of Tax Enforcement +8 don't report me to the IRS--is that an in-game transaction cannot result in a realization event. Heidi's example implicitly relies upon treating currencies within a game ("meat" in Kingdom of Loathing) as the equivalent of currencies in the real world. I disagree. To oversimplify, nothing in a MMORPG is actually more than a piece of a mathematical equation that in some sense alters a storyline. For instance, if Player A buys a magical sword or even his own magical castle, he's really purchased a higher likelihood that the calculation involved in his beating up an orc will succeed, or a lower likelihood that someone else will steal his stuff. (That stuff is, in turn, just another set of alterations in specific equations. In a graphical MMORPG, he's also buying the right to look at the graphics that go with the item, I suppose, but let's leave that aside for a bit.) Online "currency" is sort of like a very flexible magical item: with enough of it, you can turn one set of equation-altering objects into another.

Buying and selling objects using virtual currency is simply making a strategic move in the game itself. This is no different from (say) rolling a six in Sorry! or purchasing a hotel in Monopoly. No one would consider a taxable event, even though it may make the player happy (or even win the game). By contrast, if I sell a game object for cash, I am performing a service within the game that is not contemplated by its rules in exchange for goods or services outside the game. [2]

That's where I'd draw the line, but I'm just a student. As for precedent, there's not a lot out there to analyze. In Legal Affairs, Professor Richard Schmalbeck of Duke University School of Law cites to the old casebook favorite Zarin v. Commissioner, 916 F.2d 110 (3d Cir. 1990). David Zarin, a professional gambler, got in over his head to the tune of some $3.43 million. He'd gambled on credit with the casino, but apparently he had better luck at the negotiating table after his checks bounced, because he settled for a mere $500,000. Any joy at this outcome was crushed when the IRS determined that far from losing, Zarin had gained $2.9 million in discharged indebtedness income. Much of the dispute involved whether the chips Zarin received for his loan constituted cash that he used to purchase chips (and thus were worth $3.4 million) or were a purchase money loan for a given amount of gambling, and were only worth the enforceable debt. Both the tax court and the 3rd Circuit returned divided opinions.

I mention the case at length because Prof. Schmalbeck is described in the article (though not quoted) as suggesting this case could lead to taxation of ingame MMORPG gains. The case itself, however, doesn't primarily deal with transactions in chips during the course of the craps games, but rather their initial purchase. Although it's the closest I can find, it's not really on point. Closer might be Collins v. Commissioner, T.C. Memo 1992-478 (1992), which dealt with pari mutuel racetrack betting slips, but the connection is still tenuous. In each case, the taxable transaction was the exchange of chips or tickets for cash, not purely an in-game transfer of "wealth." They don't seem to counsel against the distinction above.

I quite like my theoretical dividing line, especially as the result is instinctively satisfying. If nothing else, taxing magic items would be an administrative nightmare to enforce. On the other hand, I suppose some auditors would have significantly more fun, particularly if they got to roam the game worlds looking for tax cheats on Service time.[2]

More Complex Still: Between Game Transactions
My house of cards threatens to fall over when I try to support a more complex fact pattern. Suppose that Heidi primarily plays Kingdom of Loathing and I mostly dabble in World of Warcraft, but we each have a presence in both games. She owns the Talisman of Baio and I've crafted a very nice Elvish Sword. Bored with our respective hobbies, we each decide to switch worlds. What are the tax consequences if:

a) Heidi agrees to give my KoL character the Talisman if I give her the Sword?
b) Deciding to drop out of our primary games, I give her the passwords to my WoW character and vice-versa?

According to my analysis above, these would both be taxable events. Although we're playing in both games, the trade is outside the rules of either, and the trade isn't really a game event. Rather than trading in-game strategic advantage like a meat-for-Baio exchange, we've entered into a slightly contracted version of two item-for-money exchanges. Of course, we still have the same administrative nightmare for the taxman: given that I made the sword but Heidi found the Baio, what is our basis for the sale? Given that no real record is available, how will this transaction get audited? But there's nothing in my theory to provide us with a Shield of Tax Relief.

The alternative would be to say that any trade between any two MMORPGs does not constitute a taxable event, but my gut tells me that this is rife for abuse. Indeed, I can quickly see the outlines of a scheme or two for tax evasion, money laundering or other accounting gimmickery, especially if the value of the "currencies" in each realm are subject to considerable fluctuation. (Could one make a living speculating in online currencies, only being taxed on the last "real world" transaction?) Nevertheless, an elegant solution eludes me at the moment, so I think I'll leave any better definition for my readers in the comments.

(Note: The comments may block the word "poker." If you get error messages after referencing it in your comments, please just find a way around this, such as referring to it as P---- or whatever creative means you wish.)

[1]: Sadly, I'm not enough of a player to have anything taxable, and until I'm a lawyer I'm probably only able to request an answer on my behalf. I'd really appreciate it if a bigger KoL player would help me engineer such a transaction, for instance by buying my spooky staff for some insane amount.

[2]: An interesting question would be whether or not buying or selling things in a game that itself contemplated exchange to real dollars would constitute an accession to wealth. Assume, for instance, that Everquest charges $15/month access, but will allow you to trade a certain amount of gold earned in game for free months of service. (That's actually a suicidal business model, of course.) Assuming I'm right, would it be possible to create trades that would constitute realization events once someone had sold enough items to get a free month?

[3]: I've always wondered if tax auditors compete for the most interesting or unique audits. After any number of relatively similar small businesses, would someone really relish trying to find the Everquest tax cheat, or for that matter investigating Nevada brothels or felony rings?

January 09, 2006

I Wish I Could Live In The Leiter Zone

Apart from their entertainment function, blogs serve as gatekeepers for busy readers. For instance, one can keep on top of legal events and appellate litigation (and the most interesting commentary) by browsing through the appropriate websites. And if you want to know what's going on in the "boggier corners of the fever-swamp Left," you can do a lot worse than to click over to Prof. Leiter. Anyone remember the Great Draft of 2005, brough to you by the strange alliance of King George III and his faithful sidekick, Charlie Rangel? It's a whole new world!

There's nothing so mind-broadening as travel to such alternate realities. Don't get me wrong: I make it a point to cultivate my own particular pocket dimensions. For instance, I recently explained to my girlfriend that I live in a world in which Hilary Duff does not exist. For some reason (probably songs like "Come Clean") I find her brand of lyrical candyfloss particularly insubstantial. I'll admit that it takes an extreme act of will, but through extended effort I've managed to blank the slightest hint of her from my world. [1]

Nevertheless, Leiter's latest link to "sharp cultural analysis" in ZNet suggests that I'm living in a sub-optimal fantasyland. True, the fine art of denial leads to a life of quiet contentment, but ZNet has me convinced that the world of the paranoid is more fun. To show what I mean, let's examine "The People Are Unfit to Rule: The Ideological Meaning of Maury Povich and Jerry Springer" in the spirit it deserves. The lead paragraph itself is a classic of the genre:

One morning last Fall I witnessed a mass-cultural war crime in the comfort of my own living room: The Maury Povich Show.
When I think of Maury Povich, I typically think, "What did Connie Chung see in him that she didn't see in someone more famous, talented, and funny? Someone like, say, Wings & Vodka?" Little did I know that Mr. Povich was more than a rather talentless shadow of Jerry Springer: he's actually the schlocktrooper for a mediofascist regime in the Mass Culture Wars.

The article first goes through a rather predictable rant on the evils of trash TV in a manner unlikely to generate much disagreement from Focus on the Family or Pat Robertson. It starts by arguing that Maury Povich, Jerry Springer or Jenny Jones, as well as TV Judges like the infamous Judge Judy, prey upon the uneducated, the powerless, and the just plain freakish in order to fill the gutter demands of popular entertainment. Particularly vile to the author's eyes (and, for that matter, to mine) is Maury's habit of performing a paternity test for his guests to prove whether a child is actually the blood of his father.

ZNet describes such horrors in the first dozen or so paragraphs without breaking much new ground. Then the full fevers of the class-obsessed left kick in, and the entertainment truly starts:

What’s going on here? Beyond their profitable (for broadcasters) appeal to the public’s most base and voyeuristic instincts, these and other “real—life” television shows play a neglected ideological role in the corporate-crafted “popular culture” of parasitic late capitalism. They are part of an elitist thought control project: the cultural engineering and enforcement of mass consent to social hierarchy.
See, in my world the crass nature of popular culture results largely from a race-to-the-bottom: most people laugh at cheap gags and spectacle, while more complex humor finds it hard to connect with a mass audience. There's Something About Mary became a hit in the theaters because sperm-in-the-hair equals butts-in-the-seats, and in my world it would be too much to expect Hollywood producers to spurn such riches. But if I lived in ZNet world, I could see this as the work of the Hidden Masters, an "elitist thought control project." [2]

Supposedly, such thought control has two diabolical ends.

The first such idea maintains that poor people –--- it is practically always working- and lower-class people who get held up for ridicule in the human cockfights staged by Maury, Jerry, and the rest –--- deserve their own poverty and related isolation and criminalization in America. A college student who has been mass culturally weaned on Jerry (Springer), Jenny (Jones), Sally (Jesse-Raphael), Judy (the judge), and Maury et al. is not a good candidate to follow his left-liberal sociology, history, or English professor’s discourse on the role that structural forces and elite agents of class, race, and/or gender oppression play in creating mass inequality and misery in the United States.
(As an aside, isn't that last sentence precious? To rephrase: "Any college student subjected to THEIR brainwashing on TV will be much less susceptible to OUR brain... er... propogan... er... education in the classroom, where they're supposed to get it. Damn those sneaky Hidden Masters, subverting our subversion of the dominant paradigm!")
Of course, Maury and Jerry don’t do shows about the rampant social injustice that produces the people who show up on their stages. Judges Judy and Joe Brown and the authorities on Divorce Court don’t adjudicate on the political-economic abandonment of the inner city or the corporate globalization that destroys jobs, families, and communities.
Again, this could be because Maury and Jerry are the foot soldiers in the Grand Class War, following the instructions of elite Culture Generals tasked with numbing the masses through a secular opiate. Or it could be because Jerry Springer doing a show about the "rampant social injustice that produces the people who show up on their stages" becomes Meet the Press, Face the Nation, or This Week. These are shows unlikely to garner Springer's mass audience appeal until George Stephanopolous loses it and bashes George F. Will over the head with a chair.

Not satisfied with merely planting seeds of Social Darwinist thought in the minds of the proletariat, the Hidden Masters have another agenda item:

The second richly authoritarian idea “taught” by Maury and Jerry et al. holds that the ordinary populace is too stupid, vile, savage, selfish, atavistic, and ignorant to be trusted with the possession of any particular power in “democratic” America.

. . . .

The mass populace that appears on Maury and Jerry (both on stage and in the audience) is more than merely unfit to rule. It is a modern-day embodiment of the wretched, unruly, and childish “mob” – the dangerous and all-too “masterless” and “many-headed monster” – that aristocrats have always claimed to see when they describe the common people. It is proof of the classic authoritarian and self-interested ruling-class idea that the ordinary citizenry is unqualified for freedom and must always be checked, coerced, and manipulated from above. It is evidence for the venerable bourgeois thesis that “human nature” is essentially nasty, violent, disagreeable, and brutish. Especially at the bottom of the supposedly merit-based socioeconomic pyramid, this thesis maintains, civilization’s majority is composed of ignorant and boorish louts. That thankless rabble must be controlled for their own good and the good of society by benevolent, far-seeing masters, who are supposedly less tainted with humanity’s inherent inner savagery.

Who would have thought Maury Povich hid so much!

Now, in my world this lesson doesn't make much sense. Sure, we show the freakish private lives of the poorest of our society through Jerry Springer. We also show the freakish lives of the wealthiest of our society. The paternity revelations of Maury Povich are crass, but they don't differ much in kind from the latest romantic tribulations of Brad/Jennifer/Angelina or the "let's film ourselves having sex in green" antics of Paris Hilton. In the former case, the spectacle has interest because the observed other is generally poorer than the audience; in the latter, because the other moves in a world of relative luxury but universalist tribulation. Springer guests show up without much to lose; celebrities appear in tabloids because they mostly gain from getting even a scandal-soaked name in public.

ZNet suggests that if the middle class doesn't get much attention in this circus it's all part of the Master Plan. That delusion never occurred to me. As a grubby capitalist myself, I'd expect that Divorce Court or Judge Judy would jump at middle-class or wealthy victims willing to make fools of themselves, and fools are not a scarce commodity even among those who escape the collateral damage of the class war. Sadly for the producers, however, middle-class misfits have no reason to subject themselves to televised abuse. I would have thought that's why they're largely absent or fictionalized in shows like Dangerous Housewives.

As delusions go, "The People are Unfit to Rule" beats denial all to hell. I mean, just think: I've been avoiding watching daytime TV for years as something really not worth my notice, something lacking in intellectual substance, like professional wrestling or Senate hearings on Supreme Court nominees. [3] Little did I know that they were the craven tools of an elite classist conspiracy, and that thus there was tons to learn from Mr. Povich and company.

[1]: I have yet to achieve true pop-culture nirvana: the ability to mentally block from my consciousness the Pussycat Dolls, Shania Twain, or . . . well, Nirvana.

[2]: My regular readers will realize the attraction of this worldview for me. Any elistist though control project will need an Elitist Thought Control Project Manager. If someone knows where I can apply, please tell me. References provided upon request.

[3]: I'm sure some commentor will get bent out of shape by my glancing comment on the Alito hearings, but they remind me in passing of a quotation that a former classmate put in his Administrative Law outline:

"Notice-and-comment rulemaking is to public participation as Japanese Kabuki theater is to human passions—a highly stylized process for displaying in a formal way the essence of something which in real life takes place in other venues." E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490, 1492 (1992).

Whatever the theatrical value of the hearings, I don't really believe that a format in which the questions of Senators are longer than the answers of the nominee is likely to generate much actual information. That's not to say that they're less edifying as to the real strength of a candidate than professional wrestling, but certainly I don't credit it with much more.

January 06, 2006

"With Plenty of Room in the Margins"...

My task list has overrun my blogging recently. There's a lot that I want to write about, but I've been dealing with the fact that my hallmates left the kitchen a mess over vacation, and we now have a number of unwanted tenants. The kind that are about four inches long with short gray fur and whiskers.

While camping out at my girlfriend's, we were searching for an old school rap video (for purely nostalgia purposes), and came across this. About twenty minutes later, the urge to gouge my own eyes out with kitchen implements had gone away.

Given that the mice made me less willing to trek into the kitchen to get the necessary spoons, perhaps we can call it divine intervention.

(By the looks of it, the video isn't particularly new. The glory of the internet is that even if something isn't news, it can become news to anyone who missed it the first time. Thank you Google.)

Giving The Devil His Due

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Empirical Proof of TYoH Theorizing (4)
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Fantasy Taxes, or How Much is that Pixie in the Window? (1)
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I Wish I Could Live In The Leiter Zone (1)
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"With Plenty of Room in the Margins"... (0)

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