Lie Detectors and the First Amendment

Anyone who watches dramatized detective shows–especially those of the CSI variety–knows that the real starring role is played by technology: cool, highly sophisticated devices that virtually no real-life crime lab can afford. These shows are fun, but accuracy isn’t the strong suit of storylines that need to be resolved in an hour’s time. (Fingerprint identification isn’t the slam dunk that Abby’s computer makes it seem on NCIS.)

Even the popular culture shows that don’t rely on “gee whiz” gadgetry, however, routinely use lie detectors. So the general public can be forgiven for thinking that lie detectors work.

They don’t. At least, not reliably. As Morton Tavel has noted

In 2003, the National Academy of Sciences (NAS), after a comprehensive review, issued a report entitled “The Polygraph and Lie Detection,” stating that the majority of polygraph research was “unreliable, unscientific and biased”, concluding that 57 of approximately 80 research studies—upon which the American Polygraph Association relies—were significantly flawed. It concluded that, although the test performed better than chance in catching lies—although far from perfect—perhaps most importantly, they found the test produced too many false positives.

In other words, nervous people who are telling the truth can easily fail the test. And many do.

This lack of reliability is widely understood in the legal community and among police officers; it’s why most courtrooms don’t admit lie detector results into evidence. It’s also why several ex-police officers have spoken out against their use, and why a subset of them has helped job applicants and others who face “screening” by detectors learn techniques that will help them pass.

And that brings us to a fascinating question. Is helping people pass a lie detector test a crime? What if you aren’t just helping Nervous Nellie tell the truth in a way that won’t trip the machine, but you are helping Sneaky Sam lie?

Douglas Gene Williams, a former Oklahoma City police polygraphist and the proprietor of Polygraph.com,  has been teaching individuals how to pass polygraph tests since 1979. He has recently been indicted for mail fraud and witness tampering for allegedly “persuad[ing] or attempting to persuade” two undercover agents posing as customers “to conceal material facts and make false statements with the intent to influence, delay, and prevent the testimony” of the undercover agents “in an official proceeding….”

Williams’ defenders say this is entrapment, that the attempt to shut him down is implicit acknowledgment that the tests don’t work, and that Williams has a free speech right to criticize their use by demonstrating their manifest unreliability. Others–including many polygraph critics and yours truly–say that helping guilty people fool the tests goes beyond advocacy, and is a bridge too far.

What say you?

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Roots and Branches

One of the most difficult lessons for those of us raised in individualistic cultures is recognizing the difficulty of solving problems that are symptoms of broken systems.

A recent report from NPR offered a great illustration.

Research shows that kids who have tough childhoods — because of poverty, abuse, neglect or witnessing domestic violence, for instance — are actually more likely to be sick when they grow up. They’re more likely to get diseases like asthma, diabetes and heart disease. And they tend to have shorter lives than people who haven’t experienced those difficult events as kids.

When University of Florida Dr. Nancy Hardt consulted Medicaid records, she made a map that showed exactly where Gainesville children were born into poverty. Eventually, she showed the map to show it to Alachua County’s sheriff, Sadie Darnell, who—it turned out—also had a map. Hers was a thermal map of high crime incidence, and it showed that “the highest concentration of crime in Gainesville was in a square-mile area that exactly overlaid Hardt’s poverty map.”

Those crimes included significant levels of domestic violence, child abuse and neglect.

A visit to the area turned up numerous health-related issues: poorly maintained subsidized housing, with tarps covering leaky roofs. Mold and mildew spreading across stucco walls. Poor families that often had trouble getting enough to eat.

There was also an almost total lack of services, including medical care. (The closest place to get routine medical care for the uninsured–and most people in the area were—was the county health department, a two-hour bus trip away.)

The doctor and sheriff also teamed with civic groups to open a family resource center in 2012. Its play area is open to children all day, and there’s a food pantry, free meals, a computer room, AA meetings, and a permanent health clinic.

Initial reports suggest that these measures are improving health and reducing the incidence of crime in the area. But as heartwarming as this story is, it also offers a stinging rebuke to policymakers who refuse to invest public dollars in systemic efforts–who seem unable to grasp the human and fiscal costs of persistent social neglect.

We have copious research confirming that the dollars spent on systems that help children—abating environmental hazards like lead contamination, combatting urban asthma, addressing food deserts, providing safe and enriching early childhood care—ultimately save many more dollars that we don’t have to spend later on medical care, remedial programs, welfare payments and prisons.

We also have depressing research confirming how difficult it is for those born into poverty to escape it; despite those Horatio Alger stories, admonitions about “pulling oneself up by ones bootstraps” and belief in the “American dream,” social mobility in the U.S. is far below that of industrialized countries that do provide these social supports.

Farmers understand that the crop you get depends not just on the seeds you plant, but also how well you fertilize and water them. It isn’t so different with children.

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Why News Matters

Regular readers of this blog know that I am semi-obsessed with civic literacy–with the level of civic knowledge necessary to the operation of a representative democracy. And it could hardly have escaped notice that I’ve been pretty hard on what passes for media these days.

The two issues are inextricably entwined. We depend upon verifiable, credible journalism to inform us about our government and to allow us to hold our elected officials accountable.

My belief about the importance of this relationship has recently been confirmed by Pew.

The relative decline of local news — a result of slashed budgets and staffs at newspapers, where the majority of original reporting is still generated — has been an area of grave concern for members of the media as well as everyone who cares about civic health, from policymakers and social scientists to community groups and citizens. A lot of inputs are required to keep communities vibrant, and widely disseminated factual information — a common set of issues and understandings — turns out to be a key ingredient. The Federal Communications Commission spelled out some of these dynamics in its comprehensive 2011 report “Information Needs of Communities.
Academic research backs up these concerns, too. A 2014 study by Lee Shaker of Portland State University, “Dead Newspapers and Citizens’ Civic Engagement,” finds that at the national and local level there is a positive relationship between newspaper readership and civic engagement as measured by contacting or visiting a public official; buying or boycotting certain products or services because of political or social values; and participating in local groups or civic organizations such as the PTA or neighborhood watch. Likewise, a recent paper by Danny Hayes of George Washington University and Jennifer L. Lawless of American University, “As Local News Goes, So Goes Citizen Engagement: Media, Knowledge and Participation in U.S. House Elections,” notes important implications for democracy: “Citizens exposed to a lower volume of coverage are less able to evaluate their member of Congress, less likely to express opinions about the House candidates in their districts, and less likely to vote.”
The million-dollar question, of course, is: What do we do about this situation?
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Paradigm Shift

I see where Lindsay Graham–the new Chair of the Senate Committee on Technology–has never used email. And of course, I’ve posted before about James Inhofe, the climate-change denier and evolution skeptic who inexplicably heads up the Senate Committee on the Environment.

Shades of Alaska Senator Ted Stevens, who described the Internet as a “series of tubes.”

Perhaps the most penetrating description of John McCain during his campaign for President was “An analog candidate for a digital age.” It summed up a problem we encounter in times of paradigm shift, when people living in a rapidly vanishing world can no longer communicate with inhabitants of the emerging reality.

We have lawmakers who might just as well occupy different planets, so different are their frames of reference and worldviews. No matter how well intentioned, no matter that they have some abstract understanding that new technologies are creating new cultural norms, it is simply not possible for such people to make rational decisions about realities with which they have no firsthand experience. (Think Ted Cruz’ embarrassing comments about net neutrality–comments that clearly demonstrated his total ignorance of what the issue actually was about. Or Presidential candidate Jeb Bush, who demonstrated his lack of comprehension by saying  “The idea of regulating access to the internet with a 1934 law is one of the craziest ideas I’ve ever heard”–then multiply that cluelessness by the number of elected officials who are similarly rooted in another era.)

As a site called “The Big Blue Gumball” noted in a discussion of paradigms and paradigm shift:

Among the biggest paradigm shifts of the last 10 years have been the transitions from analog to digital, and from wired to wireless. These revolutionary technological changes have led to major sociological and behavioral modifications that impact our everyday lives – from the way we live and work, to the ways we entertain ourselves and engage with others.

But not the way all too many lawmakers understand the world.

We’re in big trouble.

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47 Senators We Need to Send Home

By  now, anyone who regularly reads this blog is aware of the letter sent to Iran by 47 Republican Senators.

Vice-President Biden’s response was–considering the provocation–temperate.

The Constitution vests authority for international relations in the President, as the Supreme Court has confirmed. Until we elected a President named Obama, there was also widespread political consensus that partisan squabbles stopped at the water’s edge.

The appalling conduct of Congressional Republicans–first, thumbing their nose at the President by circumventing protocol and inviting Netanyahu, and now, with an effort to sabotage delicate negotiations with Iran (and in so doing probably plunge the nation into yet another war)–is surely illegal, if not traitorous.

My friend Bill Groth is a lawyer who has researched the Logan Act, 18 U.S.C. § 953. He reports:

It was passed in 1799 and last amended in 1994. Here’s what it says: “Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.”

In 1936 the U.S. Supreme Court in U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, noted that the President is the sole constitutional representative of the U.S. with regard to foreign nations.

Even people who detested and despised George W. Bush, who believed his decisions were taking the country down a dangerous, wrong-headed road, never stooped to this level. And while I never expected to agree with Dick Cheney about anything, here’s what he said about the respective roles of Congress and the Executive when the shoe was on the other foot:

[T]hroughout the Nation’s history, Congress has accepted substantial exercises of Presidential power — in the conduct of diplomacy, the use of force and covert action –[M]uch of what President Reagan did in his actions toward Nicaragua and Iran were constitutionally protected exercises of inherent Presidential powers. … [T]he power of the purse … is not and was never intended to be a license for Congress to usurp Presidential powers and functions.”

Elections are the remedy for Presidential decisions with which we disagree.

When elected lawmakers allow their hatred of a President to outweigh their duty to their country, they are unfit for public office.

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