Here’s a link to Greg Smith’s buzz-making NYT Op-Ed, Why I Am Leaving Goldman Sachs. It deserves to be read as an insider’s critique and to establish context for the buzz it is generating. Smith’s criticisms conform with my view of Goldman but I claim no special insights about the frim. From what I’ve come to understand about its culture I know I wouldn’t fit there, but that’s not saying much–I don’t fit the culture of many employers and institutions. It’s difficult to credit a 180-degree cultural shift in just over a decade. I expect the changes Smith relates are not solely Goldman’s. He is not the same person at 33 that he was at 21–who is?–but his Op-Ed presents Goldman as the only variable. But even if one does not take his words as gospel or question the wisdom of tossing them over his shoulder as he walks out the door they have as Judge Grant liked to say, thrown the cat among the pigeons.
Last summer’s Law and Ethics class featured a discussion problem on the ethics of selling kidneys. Currently transplanted kidneys originate either with voluntary living donors, often the patient’s family members, or from cadavers of those who agreed during life to donate organs. There is no legal arms-length market for kidneys or other organs in the U.S., although I’ve heard that kidneys can be purchased nonetheless. The National Kidney Foundation states in “25 Facts About Organ Donation and Transplantation” that “[b]ecause of the lack of available donors in this country, 4,573 kidney patients, 1,506 liver patients, 371 heart patients and 234 lung patients died in 2008 while waiting for life-saving organ transplants.” After debating the issue last year’s class rejected the ethics of an organ market. Recently Sue Rabbit Roff, an academic at Dundee University in Scotland, proposed in the British Medical Journal that college students should be allowed to sell their kidneys for roughly $46,000, which is about the average annual income in the U.K. Roff wrote “[t]his would be an incentive across most income levels for those who wanted to do a kind deed and make enough money to, for instance, pay off university loans.” In the linked article Ethics Newsline reports the British Medical Association “is strongly opposed to the idea. Some doctors are concerned about potential abuse while others consider it fundamentally unethical.”
Sovereignty over one’s body and being includes the right to donate organs in certain circumstances. If I can give my kidney to my sister* then why can’t I sell it to a stranger? The problem is that any such market would be abused, with wealthy purchasers and financially-strapped sellers. Kazuo Ishiguro explored an extreme version of this in Never Let Me Go, in which a class of humans is cloned and raised solely to be organ donors. (The book is worth reading. I don’t know if the recent movie version is worth seeing.) One ethical tenet states that people should be valued as ends in themselves and not be used as means to an end. An organ market turns that on its head.
However, it would however certainly redefine the meaning of alumni giving.
*This is NOT an invitation, Barbara
LONDON—News Corp. founder Rupert Murdoch forcefully apologized to victims of phone hacking by his employees but declared he was not to blame—deflecting the responsibility for the fiasco to other managers, saying “they behaved dreadfully” and “it’s for them to pay.”
Murdochs Are Grilled, The Wall Street Journal, 19 Jul 11
Rupert Murdoch earned some $22.7 million last year as chairman of News Corp. His News Corp. stock is worth billions of dollars. What does that compensate him for, if not control and responsibility? How much more do those cost?
“Do you accept that ultimately you are responsible for this whole fiasco,” lawmaker Jim Sheridan asked.
“No,” Murdoch answered.
“You’re not responsible? Who is responsible?” Sheridan said, according to a Roll Call transcript.
“The people that I trusted to run [the tabloid], and then maybe the people that they trusted.”
When Murdoch was asked if he was guilty of “willful blindness” or ignoring “knowledge that you could have had and should have had,” he said: “We were not ever guilty of that.”
Murdoch’s Refusal to Take Responsibility May Undermine Credibility as CEO, Bloomberg, 20 Jul 11
As I write stories about Murdoch’s testimony before Parliament appear on the home pages of the Wall Street Journal, The New York Times, The Washington Post, The Boston Globe, The Hartford Courant . . . but not on News Corp.’s FoxNews.com.
Rushworth Kidder, founder of the Institute for Global Ethics and author of multiple books on ethical decision making including How Good People Make Tough Choices, wrote a short commentary on the recently-issued Financial Crisis Inquiry Commission Report. Why must business schools, in particular, add rigorous ethics courses to their curriculum? Because “an unethical culture — a ‘pervasive permissiveness,’ in the report’s words — played a key role in this crisis. Through an ‘erosion of responsibility and ethics,’ standards were relaxed, rules were circumvented, and long-term stability was sacrificed for short-term gain.” Not astonishing conclusions, but changing that culture requires, first, that those who shape it recognize the need for change.
The above-titled Institute for Global Ethics piece explores right-versus-right elements of the WikiLeaks story:
This latest play has caused pundits to scramble toward one pole or the other. Some see WikiLeaks as a radiant shaft of light, cutting through official obfuscation and sharing vital information every citizen deserves to know. Others see it as a treasonous breach of confidentiality, seizing up the well-oiled protocols of international negotiation and endangering the lives of military, diplomatic, and intelligence operatives around the world. Blinded by such polarizations, few see the story for what it is: a right-versus-right dilemma raising profound questions about the role of information in a democracy.
It concludes with a perspective I’ve not seen elsewhere:
In the end, then, WikiLeaks is about how we define war. A citizenry in a state of war makes short shrift of those who disclose such secrets. A citizenry in a state of peace tolerates and even encourages them. How we view WikiLeaks depends on which state we think we’re in.
Tomorrow’s Internet law class-our last this semester–will focus on WikiLeaks. (Good luck loading wikileaks.org. The first topic may be “if a website’s URL does resolve to the site’s home page, does the site exist?” Another of the top four Google responses to a search for wikileaks.org also failed to load: http://cablegate.wikileaks.org/. The two sites that loaded, with links to the leaked U.S. diplomatic correspondence, are http://220.127.116.11/ and http://18.104.22.168/cablegate.html.) This week it is hard not to find news stories, blog posts, rants, and raves about WikiLeaks’ dissemination of the diplomatic cables. In no particular order, with no endorsement of their respective stances, and with no representation that these are the best courses of information, here is some of what I’ve read:
- Salon.com, A few questions about the WikiLeaks release (http://www.salon.com/technology/dan_gillmor/2010/11/29/wikileaks_a_few_questions)
- The Washington Post, Anatomy of a Leak (http://www.washingtonpost.com/wp-srv/special/nation/wikileaks-anatomy/)
- Federation of American Scientists Secrecy News, WikiLeaks Fails “Due Diligence” Review (http://www.fas.org/blog/secrecy/2010/06/wikileaks_review.html)
- The Washington Post, WikiLeaks founder could be charged under Espionage Act (http://www.washingtonpost.com/wp-dyn/content/article/2010/11/29/AR2010112905973.html)
- The New York Times, U.S. Weighs Prosecution of WikiLeaks Founder, but Legal Scholars Warn of Steep Hurdles (http://www.nytimes.com/2010/12/02/world/02legal.html?_r=1&emc=tnt&tntemail0=y)
- WSJ Law Blog, Why WikiLeaks’ Assange Might Elude U.S. Prosecution (http://blogs.wsj.com/law/2010/11/30/why-wikileaks-assange-might-elude-us-prosecution/?mod=djemlawblog_h)
- Time.com Why WikiLeaks is Winning its Info War (http://www.time.com/time/nation/article/0,8599,2035817,00.html) [contains links to all of Time’s coverage of Wikileaks]
- zunguzungu.com Julian Assange and the Computer Conspiracy; “To destroy this invisible government” (http://zunguzungu.wordpress.com/2010/11/29/julian-assange-and-the-computer-conspiracy-%E2%80%9Cto-destroy-this-invisible-government%E2%80%9D/#)
I’ll post more links when I access my laptop at school.
WikiLeaks is a mother lode of discussion topics: freedom of speech, freedom of the press, national security, criminal law, extradition, ethics, Internet culture, network architecture, network security, file-sharing technology, citizen journalism, hacking, the 24-hour news cycle . . . and more, no doubt.
Hypocrisy, for example. WikiLeaks’ founder Julian Assange’s stated goal for WikiLeaks is to puncture organizations that maintain their authority by conspiring to hide information about their activities. In other words, secrecy–whether practiced by the United States government or sorority Alpha Sigma Tau–is inherently bad, therefore revealing secrets is inherently good. Zunguzungo.com’s* lengthy, reverential exegesis of Assange’s writings favorably characterizes his definition of a conspiracy as “simply any network of associates who act in concert by hiding their concerted association from outsiders, an authority that proceeds by preventing its activities from being visible enough to provoke counter-reaction.” Let’s see–network of associates . . . act in concert . . . hide concerted association . . . prevent visibility to outsiders . . . not accountable to anyone . . . doesn’t that perfectly describe WikiLeaks and its supporters?
Unless the topic is, say, engineering or math, I distrust binary thinking. Reducing complex problems to black-and-white alternatives requires no thought, no analysis, no understanding of human nature, no judgment, no room for growth, no self-doubt, no capacity to listen, no compassion, no heart, no soul, none of what is special about humanity. Assange’s blind faith in transparency makes him just another True Believer whose ego requires imposing his beliefs on the world.
*Which the website defines, apparently, as “harmonization [variant: harm minimization]”**
**To which I reply, wtf?
Illinois lawyer Loren Friedman changed the Bs and Cs on his law-school transcript to As and Bs and landed a summer associate job at Sidley Austin, the large corporate Chicago law firm. Years later, when Friedman was working as an associate in a firm in New York, Sidley Austin discovered the lie. Friedman admitted his fraud to the Illinois bar, which may have remembered that Friedman previously admitted failing to disclose flunking out of medical school on his law school applications. In deciding the fate of his license to practice the Illinois bar knew Friedman to be a serial liar. The board hearing Friedman’s case decided to suspend his license for three years. The attorney-discipline agency appealed, seeking permanent suspension. The Illinois Ethics (there’s an oxymoron) Review Board just decided Friedman’s appeal. The result? Read the comments below or this article to find out.
Metadata is “data about data” or “information about other information.” Web pages contain metadata–click on “view page source” or the equivalent command in your browser to see all of the behind-the-scenes code that goes into this seemingly plain, boringly-white page. The typewritten papers and memos of my college and law school careers contained no metadata other than the date and “by David Randall” (and whatever information a forensic examiner could glean from examining key impressions about the make, model, and physical characteristics of my electric typewriter), but now we leave all sorts of coded crumbs in our documents. Clicking on File|Properties while viewing a document in Microsoft Word reveals the name of the document’s author (or at least the name of the person to whom the copy of Word is registered), the document’s creation and modification dates, and other information. On a few occasions I have looked at metadata to check the provenance of a student’s paper, and learned things the student did not expect to reveal. Looking at metadata in a student paper does not violate any legally-protected right to privacy because the metadata was plainly viewable to anyone who chose to look at the document’s properties. If something is plainly viewable from where one has a right to be, there is no reasonable expectation that it will remain private.
The rules change, however, when the metadata-containing documents are attorney work product. Say Alex Attorney, representing Clarissa Client, sends draft documents to opposing counsel Betty Barrister. Betty checks out the documents’ metadata and discovers some information protected by the attorney-client privilege that gives her client an advantage. Did Alex Attorney violate rules of professional responsibility by sending documents with compromising metadata? Would Betty Barrister violate rules of professional responsibility by using the metadata? States bar associations are considering these questions. As Legal Blog Watch reports the Vermont Bar Association addressed them as follows:
Vermont joins the virtually unanimous opinion of jurisdictions that have considered the question. “Lawyers who send documents in electronic form to opposing counsel have a duty to exercise reasonable care to ensure that metadata containing confidential information protected by the attorney client privilege and the work product doctrine is not disclosed during the transmission process.” In other words, before you hit “send,” scrub out the metadata.
States are split on the duties of the receiving lawyer. Some prohibit searching for metadata, others permit it. Legal Blog Watch reports that Vermont is in the latter camp, and notes that Vermont suggests lawyers have a duty to search for metadata. ‘A rule prohibiting a search for metadata in the context of electronically transmitted documents would, in essence, represent a limit on the ability of a lawyer diligently and thoroughly to analyze material received from opposing counsel.'” The Bar Association opinion does not define the receiving lawyer’s ethical obligations if she discovers confidential information:
Whether inadvertent disclosure of privileged information constitutes a waiver of the document’s privileged status is a question of substantive law. . . It is beyond the scope of this Ethics Opinion to address what analysis the Vermont Supreme Court should adopt on the question of inadvertent disclosure.
I agree that unless an ethical rule specifically forbids it, lawyers should be able to search metadata in documents received from opposing counsel. If an ethical rule does specifically prohibit it then the rule should be changed. The duty to screen compromising metadata should fall on the attorney responsible for creating the document. Attorneys may not be in the habit of doing so because metadata is out of sight, but that’s not a principled basis for an ethical rule. Better to place the duty of metadata care in the foreground. As for the ethical implications of using confidential metadata revealed by opposing counsel, the rules for metadata should be no different than the rules governing use of confidential information discovered in the briefcase opposing counsel left by mistake in a conference room. Metadata’s novel electronic character does not require novel ethical treatment.
*With apologies to Will Rogers
^^It is my lot to be in the extremely select audience that finds my humor impossibly witty, an audience that includes my son Nate and one or two other people whose names escape me.
Preparing to teach a graduate law and ethics course his summer I discovered the website of the Institute for Global Ethics (www.globalethics.org). I read Rushworth M. Kidder’s book How Good People Make Tough Choices for background and pointed students to some of its “right versus right” dilemmas for class discussion. I also signed up for its free weekly Ethics Newsline, a brief and stimulating collection of news stories, polls, and opinions. Among other stories this week’s Newsline addresses the controversy surrounding Roman Polanski’s arrest in Switzerland for fleeing the U.S. in 1978 after pleading guilty to child-sex charges, “academic doping” (the off-label use of drugs such as Ritalin to improve performance on exams), and luxury pen maker MontBlanc’s plan to produce a $24,763 “limited-edition commemorative fountain pen in honor of the 14oth anniversary” of the birth of the “ascetic,” anti-materialistic Mahatma Ghandi. The Newsline also carries reaction to the previous Newline’s story titled “Cheating Your Way through the Ethics Class” about AcaDemon, “an e-supermarket of terms papers for students determined to plagiarize.”
Preparing for the law and ethics course I am teaching later this summer I Googled “How Good People Make Tough Choices” to find the link on the Institute for Global Ethics site where students can download an excerpt. Google listed it as the fifth primary link–immediately after the link to a web site offering for sale a 1,651-word term paper on the book for $53.95. There is a special circle in academic hell for students who plagiarize ethics assignments.