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Friday, February 19, 2016

Apple's Encryption and Blockchain Solutions

Many readers already know that Apple Computer is resisting a federal court order to modify its software to allow an encryption bypass and indefinite password attempts, as requested by federal authorities investigating the San Bernardino terror attack in 2015.

There are bigger issues at work here. The last two decades have seen a trend -- under both Republican and Democratic administrations -- for an expansion of government authority over private enterprise.

Here, the issue boils down to an important objective, being used to justify the government requesting and a federal court ordering a private enterprise to change its product.

There are precedents, of course, when safety or health are involved. But here, the request is to help the government do its job.

Here is the troubling implication: The government is declaring and imposing a duty on a private business, yet not compensating the business for its burden.

This is a form of conscription, a form of the expropriation of private property, on the basis of an asserted (and yes, an important) government objective, by the government.

This is the same premise behind eminent domain, the taking of the private for the asserted good of the public.

This is no different, really, from the troubling trend of government agencies coming down on business managers and imposing all sorts of duties and obligations to root out wrongdoing -- but critically, without compensating, protecting or giving the targets of this imposed burden any resources with which to undertake this imposed task.

The unfairness is illustrated by the fact that the targets (Apple today, corporate managers in the last decade) become unpaid and unindemnified deputies of the government, charged with extra responsibilities (and liabilities), yet ironically possessing NONE of the protections enjoyed by government workers.

This is a tax on business. This is a tax on the people who work in business. These impositions are burdens and punishments. And it makes you wonder whether there is another agenda at work here. Something beyond the cover of a top priority investigation. Is it a power grab, a desire to assert government control over private innovation? And could this even be a way to weaken the anti-hacking protections consumers enjoy, so that prying government eyes can access data without those pesky warrants and subpoenas?

The objections seem rooted in objectors' warranted lack of trust in human institutions, and particularly (but not exclusively) the government. This condition is actually avoided by, and is the basis for the appeal, of blockchain technology.

And blockchain, lest we forget, is based on a ledger of all activity and all data which is publicly-available, immutable and, perhaps most crucially, decentralized. That decentralization feature means the data is uniquely not susceptible to attack, deformation, corruption or inaccessibility.

Ordinarily the vast majority of people would cooperate with a government terror investigation. But this case is inadvertently becoming a cause célèbre for a protest of a terror investigation. Many tech industry players are warning -- not as loquaciously as they should -- that the government's measures pose a potential grand threat to information security and consumer protection. But I wonder whether this is a new attack in a stealth campaign, to nationalize private industry.

If the authorities were more interested at building trust, they might receive much more cooperation from tech innovators. But that trust requires a demonstration of action that would inspire confidence. Remember, this is the same federal government which elects to selectively enforce -- or not enforce at all -- existing federal immigration laws on the books for years, in the wake of the same terror threat which is invoked to justify government encroachment on rights in a different scenario. I sense the tech industry and other private enterprise players see these requests as an effort for the government to make itself a dominant partner and overseer. I believe that is the spectre which they feel, and fear.

Eric Dixon is a New York lawyer who works extensively with blockchain and cryptocurrency innovators and startups.

Sunday, February 14, 2016

Vacant Real Estate And The Value Of Location

The vacancy rate with residential real estate correlates in the inverse with property values, which are largely dependent on three factors: location, location and location.

Some New Jersey data shows that two of the counties with the lowest numbers of vacant residences are two of its most populous: Bergen and Hudson Counties. Those two counties, with direct access to New York City, stay in demand because of the location. Even if the commute is poor. That's because getting out of Manhattan is an ordeal for everyone, no matter which direction you travel.

The lesson? The next time someone proposes a bad policy like the New Jersey Residential Foreclosure Transformation Act -- whose 2012 incarnation (passed by the New Jersey Legislature but vetoed by Governor Chris Christie) would have allowed the state to buy vacant homes and turn them into homeless shelters and so on -- just remind them that there's no cure for a bad location or a property that "just won't sell." 

Bad properties are the result of speculation. An unwanted property is a verdict on the intrinsic value of the property.

In other areas, nothing stays vacant. That is also a verdict on the demand for the location of those properties.

But that's no reason to pass a law that will allow the government to turn your deadbeat neighbor's property into a drug rehab clinic in the name of "the common good."

And it also shows the danger of the uncontrolled use of eminent domain to seize private property (and typically the ones most vulnerable will be the poor owners in low-value areas), sometimes for the benefit of "the common good" but almost always with the incidental benefit of certain neighboring properties.


Saturday, February 13, 2016

When I Questioned Antonin Scalia One on One

In honor of the man, and the judge, after his passing earlier today...

I met then-newbie Associate Supreme Court Justice Antonin Scalia personally in 1989. I was a college student (Brooklyn College); Scalia's father had been a Brooklyn College professor in prior decades. And Scalia and I were both "Sons of Xavier," fellow graduates of the renowned Jesuit high school that is still on Manhattan's West 16th Street.

I got a few minutes to question Scalia about the Constitution, with the understanding -- and his permission -- that this would be on the record. I was on the college's primary newspaper, the Kingsman. 

(Side note: Three of my colleagues back then have gone on to illustrious journalism careers -- Michael McAuliffe with Huffington Post, Rich Calder with the New York Post, and Glenn Thrush with Politico. We all have taken the long trip.)

My sharpest memory was not of constitutional theory. It was that Scalia was one hell of a chain smoker. The room was full of a haze. It was truly a smoke-filled back room. There was so much smoke, you'd think the College of Cardinals had just elected a new Pope. 

I do remember that Scalia kept talking about strict interpretation of the Constitution. He felt it was important for the judiciary to respect its own boundaries, to interpret the Constitution but only restrain the legislature (or executive) when the Constitution was clearly overstepped. 

And finally, I can add that Scalia was genial, a younger man back then (52). Very few would have taken the time he did that day to talk to a then-newbie college journalist. He had class, and his ideological detractors never understood that. 

Eric Dixon is a New York-based lawyer, strategic consultant and blockchain technology application (FinTech) developer. He can be reached at EDixon@NYBusinessCounsel.com.

Rhetoric, Politics and Successful Advocacy: Targeting Your Audience

The most successful communicators are able to say one thing, and have it deliver multiple meanings.

Just like one billiards shot can sink multiple balls.

Political campaigns get the attention that most courtroom deliveries and negotiations almost never get (until after the fact, perhaps). There are a lot of canned deliveries, repeated statements -- it's all quite boring, frankly, unless you have a strong personal interest for (or against) a certain candidate. Many observers and "people involved in politics" get emotionally twisted up obsessing over how this or that candidate could make this outrageous statement, insult or obscenity.

This is all missing the point.

The point of those utterances is to play to a specific audience.

And almost always, that audience . . . Is. Not. You.

A message targeted to a certain audience is no different than an advertisement, or a closing argument inside a largely-vacant courtroom. It is designed to hit certain emotional notes, in order to produce a desired response: Buy this product, vote for me, etc. 

The candidate may not necessarily support, agree with or believe what he or she is saying, but "political realities" may compel a particular appeal, e.g., "I will go after the banks." (Note: I am speaking specifically about the Democratic Party, whose incumbent officeholders are increasingly changing their rhetoric in order to placate an increasingly rabid activist core and hopefully avoid primary challenges. I have been told this first hand. The political upheaval of our time is very much inside the Democratic Party, not the Republican Party.) This is the same calculation made by the advocate, the lawyer who may have to make an argument he finds personally distasteful, in order to represent a client. The difference is that the politician is viewed as personally benefiting from being elected, so the appeal is considered less honest.

So if you get upset at something you watch, read, or hear, I suggest just taking a few steps back, a deep breath or two, and trying to take this all a little less seriously.




Saturday, February 6, 2016

Open Primaries Are An Attack On Voting Rights

The New Hampshire presidential primaries are days away. New Hampshire has what is called an open primary. That means anyone can vote in the primary regardless of their pre-existing party affiliation, which then changes upon their voting. You could call this "instant affiliation." I suggest you call it by its real name: Instant vote dilution.

In many states, voting in a party primary is restricted to people who have chosen their party in advance, sometimes well in advance. But in New Hampshire, the laws are incredibly permissive.

  • You can register to vote in New Hampshire and vote in the primary the same day.
  • You can "move" to New Hampshire, declare your "domicile," and vote -- all on Primary Day. 
  • You can declare your party affiliation -- on Primary Day.
  • After Primary Day, you can immediately un-affiliate by declaring you want to leave the party, just by filling out a form.
New Hampshire's laws punish bonafide party members and dilute their votes. In effect, they diminish the value of the affiliation. A long-time party member's vote counts no more than the vote of the individual who may "just have moved" from any of the neighboring states, or decided to vote in the party which he opposes, in order (as the theory goes) to have the opposed party choose the weaker general-election candidate.

This very danger was recognized by the United States Supreme Court in its excellent 1970 decision in Rosario v. Rockefeller. That decision explained the practice of "party raiding" and the value of deterring such raiding by making voters choose their political party well in advance of the primary election. (That case, in which the defendant was the legendary New York Governor Nelson Rockefeller, upheld New York State's 11-month deferred enrollment practice.) 

New York, and many other states, have a "closed primary" that restricts primary voting to party members makes party affiliation meaningful. The closed primary protects the First Amendment right of association of voters. The Rosario case recognized and upheld the concept that the idea of a party primary is to have the members of that party choose its nominee. It is the basis for party affiliation and the prime reason to be in a political party (for legal, voter registration purposes). 

Closed primary election laws act like anti-virus software. They allow bonafide and committed members to associate but to keep out hostile attackers. 

The open primary, conversely, attacks the right of association. It allows hostile attackers to dilute and affect the outcome. Open laws like those in New Hampshire, and Missisippi to name another state, invite mischief and effectively denigrate party affiliation. Nothing diminishes the value of party affiliation than to allow outsiders -- non-bonafide members with no allegiance to the "party" -- to participate in and distort the outcome of its primaries. 

The open primary also arguably violates the Fourteenth Amendment's Equal Protection Clause. That's because it subordinates the First Amendment associational right of "long time" party members to the hostile attackers' right to invade. If you're thinking that closed primary or durational-registration requirements (e.g., register in the party by some deadline well in advance of the primary) are unconstitutional on a similar ground that they "keep out" others who "have a right" to participate in whatever primary they choose, the answer is that they merely erect an even deadline, applicable to all voters, in advance of the primary. A conditional requirement like a deadline is thus not a barrier, but the result of a legal presumption of legitimacy of a voter who switches or declares parties sufficiently well in advance of the primary.

In other words, party affiliation (also called "party enrollment") deadlines do not prevent party raiding or electoral mischief. They just place a premium on attackers having the foresight to organize weeks or months in advance of the targeted primary.

What do you think about open primaries? Do you think an open primary defeats the purpose of selecting a political party?

Eric Dixon is a New York lawyer. 

Monday, February 1, 2016

DeBlasio Connection To New Jersey Waterfront Murder Today

A young man arrested and charged today for manslaughter today for a homicide in Edgewater NJ this morning of a 16 year old youth from Spring Valley NY, is the son of New York City mayor Bill deBlasio's wife's chief of staff.

This blog asserts it was the first to publicly report this connection at around 7:40 pm Monday evening. The earliest press report to make the same connection hit the Internet after 8:00 pm.

UPDATE: However, a recent press report indicates the stabbing may have been done in self-defense.

Khari Noerdlinger is the 19 year old son of the former chief of staff, Rachel Noerdlinger. She is the chief of staff of Chirlane McCray, the wife of New York City Mayor Bill deBlasio.

Rachel Noerdlinger was revealed by the New York Post last year to have a live in boyfriend names Hassaun McFarland, a convicted killer. The elder Noerdlinger was criticized for holding her position while living outside New York City and was reportedly granted a residency waiver.

More details may be provided later as more information is obtained. This report has relied on information reported since 2014 by various news sources.

UPDATE 2: From NJ Advance Media Monday night, 9 PM.