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“Code is law” Once More

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By lambert strether

In a post earlier this year on the foreclosure crisis and In Re Jones (“‘Code is law.’ Literally,” 2012-04-10), besides taking a swipe in passing at Larry Lessig, I suggested there are two possible ways to look the foreclosure crisis:

  1. As a law enforcement problem, where banksters have committed illegal acts; 
  2. and as a jurisprudence problem, where the oligarchs who own proprietary software systems have changed the nature of law itself: Code is law, not metaphorically, but literally. 

In the latter case, what we understood the law to have been, in Civics 101, is then rewritten or crippled to conform to the code. Statutes, rules, regulations become vestigial. Code is the driver. (I can’t think another word for this than “revolutionary.” … That’s a rather unpleasant notion.

As we shall see; two events in the last week or so suggest that, indeed, reality may be behind door #2.

First, Alex from Marginal Revolution gives this example:

On Sunday, a livestream of the Hugo Awards — the sci-fi and fantasy version of the Oscars — was blocked on Ustream, moments before Neil Gaiman’s highly anticipated acceptance speech. Apparently, Ustream’s service detected that the awards were showing copyrighted film clips, and had no way to know that the awards ceremony had gotten permission to use them.

…As live streaming video surges in popularity, so are copyright “bots” — automated systems that match content against a database of reference files of copyrighted material. These systems can block streaming video in real time, while it is still being broadcast, leading to potentially worrying implications for freedom of speech.

The first commenter remarks:

Surely there needs to be some penalty for falsely asserting ownership on one’s own or someone else’s behalf. Right now, any rational organization will accept large numbers of false positives.

Yes, in the world of Civics 101. But we might not live in that world any more. Rather than rewrite the code to conform to antique notions of ownership or justice — which, in all fairness, are trivial set beside a requirement to enforce compliance with an extremely lucrative system of rental extraction — why not revise the law to allow the false positives that coding almost invariably* creates? After all, Obama’s mortage “settlement” allows a certain percentage of illegal title transfers, so why shouldn’t false positives from a copyright bot be perfectly acceptable? I predict there will never be such penalties as the commenter described (and boy, would I be happy to be wrong).

Here’s what could be a second example, from Good Morning America, of all places:

Alvin and Pat Tjosaas, a retired couple in Woodland Hills, Calif., had the bad luck of having their home mistaken for a neighboring foreclosed home and being cleared by contractors hired by Wells Fargo — not once but twice.

But on June 1, a neighbor in Twentynine Palms called the Tjosaas family, asking if they had authorized people to clear out their home.

“We assumed it was a break-in and, really, it was a break-in,” Tjosaas said. “They weren’t legally supposed to be there.”

Tom Goyda, vice president of corporate communications for Wells Fargo Home Mortgage, told ABC News the company had foreclosed appropriately on another property near the Tjosaas house and the error was made when a contractor mistakenly went to the Tjosaas house instead of the correct house.

The Tjosaas home had actually never had a mortgage or lien on it because it was paid for in cash as it was being built about 50 years ago.

“We are deeply sorry for the very personal [oh, how very smarmy**] losses the Tjosaas family suffered as a result of their home being mistakenly secured and entered by a contractor hired to address a different nearby property,” the company said in a statement. “We moved quickly*** [after the story appeared on TV] and have been in contact with the Tjosaas family to resolve this unfortunate situation and right this wrong.”

Oh, ha ha ha. If a meth freak metal thief had broken into the Tjosaas house and got caught loading the pipes into his truck, you can bet that “resolving this unfortunate situation” and “righting this wrong” would be operationally defined by jail time. But n-o-o-o-o! And now, the comedy begins. Groundhog Day!

[O]ver Labor Day weekend, Alvin Tjosaas went to check on the home and saw that it had been broken into and “vandalized” again.

“They had taken things like propane tanks, tires, rims that belonged to vintage cars, and put them on the lawn,” his wife said.

The Tjosaases later learned Wells Fargo had hired another contractor who made the same mistake as the first.

So how’d this happen?

[Pat Tjosaas] later learned the contractors had used a satellite photo and an address given to them by Wells Fargo.

“They simply were at the wrong location,” she said, “not even on our road.”

Speculating freely: Even Wells Fargo doesn’t keep its records in a shoebox; they keep their records in a database. It looks like Wells Fargo entered (or purchased) bad data. The database had the wrong address, and/or software derived the wrong GPS coordinates from the database address, and/or the satellite photo mapped good data to the wrong house (the Google map of my home town puts a restaurant about a hundred yards from where it should be, raising issues rather like the circular error probable for a nuclear strike). Moreover — you know how hard it is to change anything once it’s “in the computer”? — Wells Fargo also has a horrible quality assurance problem: Either the contractor wasn’t tasked with reporting incorrect addresses back to Wells Fargo and/or Wells Fargo didn’t flag the bad data in the database, and re-used it.

Atrios comments:

Nobody has any concern about prosecutions. The article [on the Tjosaases] doesn’t even raise the possibility.

The frist commenter:

Remember the rule of law?

Well, if we accept that “code is law,” then false positives from corporate computer systems are legal, just as they are in the copyright case above. Again, I’d argue that we don’t have a law enforcement issue, but a jurisprudential issue; the nature of law, and hence rule, has changed, as part of a larger change in the constitutional order that is still underway. If I am right, there will be no prosecutions. If a civil suit is brought, the records will be sealed and the Tjosaases put under non-disclosure, especially to the press.

NOTE * “Program testing can be used to show the presence of bugs, but never to show their absence!” –Edsger W. Dijkstra

NOTE ** Not only smarmy, utter bullsh*t:

The bank allegedly threatened foreclosure on a dying cancer patient in July, after her medical bills made it almost impossible for her to meet her mortgage payments. In addition, one California foreclosure victim committed suicide in the midst of a legal battle with Wells Fargo in May.

NOTE *** Odd that a creature which travels, slug-like, on a trail of slime can “move quickly,” but then they’ve had a lot of practice:

There are more than 50 homeowner lawsuits alleging contractors — hired by big banks to protect abandoned properties from getting damaged — sometimes wreak havoc on still-occupied properties, according to HuffPost analysis.

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44 comments

  1. ambrit

    Mr. Strether;
    I assume there is no blanket immunity clause here. So, why not take a page from the RICO playbook and go after the actual on the ground ‘foreclosure troops?’ Then move on up the food chain. Sometimes, as our reactionary adversaries have shown, going after the mid and low level operatives is the most effective course. As an added bonus, (“Operatives are standing by!”,) it could initiate an entire generation of ‘underemployed’ lawyers into pro societal legal activities!

    1. jake chase

      I have worried about not having a mortgage for several years. It would be so easy for criminals to create one and peddle it to some idiot investor (or bank) and I would not learn about it until foreclosure (or clearing) began. My solution is a simple one. A tasteful sign on the front lawn reading as follows:

      WARNING
      There is no mortgage against this property which was purchased for cash many many years ago. If you think you are enforcing rights of any mortgage holder you have been misinformed. You should also know that the occupant of this house is armed and will view any entry or trespass as a criminal act.

      My neigbors get a kick out of this sign and think it is a joke. It isn’t. The law protects property owners who shoot first. Of course, you might want to just walk outside and point the gun at them if you are the timid sort.

      1. jake chase

        I also considered recording a phony mortgage in favor of a dummy corporation, but you have to pay a mortgage tax which can be quite steep.

  2. kevinearick

    As the comments, especially over the last few days, have demonstrated, civil contracts, especially civil marriage under a constitution, are made to be broken. the only way not to lose is not to play. neither capital nor moddle class in its image is capable of honoring an agreement, because their principles, false assumptions, change with time.

    they can only build on your foundation. regardless of how many words they use, they cannot escape their own prison in time, as those of you with advanced programming skills have seen.

    employ implicit backlash and leave the derivative robots to their own self-destruction.

    1. kevinearick

      Fraud on/of a minority is the circuit. where does the voltage stop?

      How does each state compute its electoral college, and what does that have to do with this new education/propaganda service economic activity, same as the old, with a new dress.

  3. alex

    lambert strether: Code is the driver. (I can’t think another word for this than “revolutionary.”

    This has little to do with software, and there is nothing revolutionary about it. In an earlier error it would have been blamed on clerical errors. Breaking the law is breaking the law regardless of whether you use the “computer did it” line of BS. And powerful vested interests getting away with breaking the law is a problem going back thousands of years.

    Forget computers – the important point is that we need to return to the rule of law.

    1. Susan the other

      Well, we aren’t going to return to the rule of law under Eric Holder. He won’t even do the investigations. He’s probably not convinced that the banksters will get away with blaming it on the software. So he isn’t taking any chances.

  4. Kukulkan

    On the bots cutting off the livestream of the Hugo awards:

    One of the basic things you do when preparing an awards show is make show you have the clearances necessary to show clips from copyrighted works, display trademarked logos, have permission to feature the songs and music used, and so on. This is straightforward and elementary and has been for over a hundred years.

    Presumably the bots can be programmed to ignore certain copyrighted material in particular circumstances, otherwise they would be shutting down Doctor Who (or whatever) every time it was broadcast. Simply tell the bots that a particular livestream is authorized to show certain material ahead of time and they let it pass. It really doesn’t seem that hard.

    The problem is that people can do this sort of thing easily, but tech companies don’t want to pay people to do it. Instead they try to automate the process and the automation suffers from the fact that it’s put together by programmers.

    Now, I’ve got nothing against programmers (some of my best friends… etc.) but…

    Back in the early eighties when I was at university, the computer department was in its own building, isolated from the rest of the campus by a small lake which was home to some rather vicious ducks. Whenever I had reason to brave the ducks and visit the computer department. I found those studying computing to be the most amazing blend of ignorance and arrogance I’d ever encountered. They didn’t know anything except computing and they didn’t think they needed to know anything else because they knew computing.

    Nothing in the years since has changed that initial impression. Only last week I was having to explain to the programmer of my work’s database that “working days” means that the calculation has to exclude weekends and public holidays; that ten working days was two weeks, not a week-and-a-half. He was resisting this because creating an algorithm that would exclude weekends and public holidays would be complicated and messy, it would be easier to just count days. Well, yes, it is messier and more complicated, but it’s the way the world works. And Excel spreadsheets, which the database is supposed to replace, have had the ability to calculate working days for over a decade.

    Programmers want to make everything simple and straightforward, which I suppose is admirable. The problem is that they generally don’t know how anything else actually works (the ignorance) and think that everything else should change to match how their simple and straightforward code (the arrogance). When reality doesn’t match the code, then obviously reality needs to be changed so it does match the code.

    It’s not that code is law, it’s that the people creating the code don’t know how anything anything else works — and frequently don’t want to know.

    1. Gerard Pierce

      What you have “proved” is that some people who know everything else know nothing about programming.

      You can teach someone the essentials of several simple programming languages in a few hours. Check the books-stores: “Learn dada-da in 24 hours.”

      To write a payroll system: multiply hours worked times hourly pay and write a check.

      Except it doesn’t work that way because the system has to take in account a couple of hundred things – like what to do when Joe doesn’t show up for work one week. Hours worked times pay-rate = 0, minus deductions equals some number. Write a check – ignoring the fact that the check routine doesn’t deal with negative numbers.

      A large part of programming used to be figuring out all of the gotcha’s that “management” didn’t mention because they really didn’t know about them. And it was beneath their dignity to actually pay attention to all those details. That kind of stuff was for the serfs.

      Some of the time the serfs wind up programming whatever short-sighted idiocy they were told to program. Then “management” comes back and says “we know the spec said days, but we really meant working days”.

      It’s really ill-mannered of the serfs to object because their REAL job was to assume that management had its head up its posterior and to figure out what was really needed.

      1. kevinearick

        The REAL job…it always comes down to Job…killing the messenger…so capital can take credit, and issue middle class debt, but mom and pop have seen enough of little timmy’s sh-show, on the twilight zone…

        as some deleverage, the many lever up by proxie, expecting another banking law to save them…and act surprised when their unstated intent, wrapped in the participation in known false assumptions, unravels the dress, leaving only the tyrant, a vacuous soundbyte, coming out of a teleprompter, as the input for the next round of insanity.

      2. Bert

        Job interviews are always a bitch too when the interviewer says, “Ok, sure you know programming – you have certifications on 17 of those “learn in 24 hours” programming languages and technologies. But do you know our business?”

        1. Gerard Pierce

          I gave up on working as an employee after the first ten or so years.

          The actual process is that someone in programming makes up a lest of acronyms for skill sets that may or may not have anything to do with the job. Human resources transmits this list to a recruiter who doesn’t know what any of those acronyms mean, but can at least spell most of them.

          The prospective employee claims the skills he has and either lies about the others or comes up with an acronym of his own that he claims means the same thing.

          I suppose somewhere along the way, someone does ask about certifications. I never obtained any certifications, and the one time someone asked, I responded “Why should I pay good money to be certified by a company whose software doesn’t work”.

          As an independent consultant, I solicited projects from people who had serious problems and needed a solution. It’s amazing how fast they can cut thru the BS when their rear ends are on the line.

          1. Bert_S

            I got into it as a career change and began regretting it after getting my MSFT certs (while working uncertified -gasp! and going to night school at my expense – believe it or not I spent more than 24 hrs on learning just part of MSFT’s product line) and would go on interviews and be asked such things like “I don’t see HEPA anywhere on your resume”, or after getting the job being informed that the company is starting a new project and will be using Java/Sun/Oracle and IBM Websphere, so I should start getting spruced up on those little job skills in my spare time. That happened twice!

      3. Kukulkan

        Gerard Pierce said:
        It’s really ill-mannered of the serfs to object because their REAL job was to assume that management had its head up its posterior and to figure out what was really needed.

        Serfs? I did mention the arrogance, didn’t I?

        Still, I suppose from a suitably patrician point of view it is indeed ill-mannered of us serfs to point out the inadequacies of our social betters. The problem is I really don’t see programmers as my betters and so have no particular urge to tug my forelock and be properly deferential in their presence.

        Still, if your Lordship pleases, allow this simple serf to point out that we serfs have been dealing with diverse, arbitrary, contradictory and occasionally impossible requests, demands and expectations for many centuries and, in that time, have developed a range of techniques, procedures and principles for dealing with them and not only making everything work smoothly, but making them look like it just naturally happens that way. No doubt it is a mark of our presumption that we take pride in this accumulated lore and enjoy sharing it with others and passing it on to those newly recruited to our ranks. Strange as it may seem, this even extends to our replacements, where we will seek to pass on as much lore as we can to those who will be taking over our positions because we consider a job done well to a special mark of virtue. I apologise if your Lordship’s sensibilities are offended by this non-individualist — some even say “anti-individualist” — ethos, but I am simply describing how things are.

        That means when programmers deign to lower themselves to our level to build devices that will replace us, we try to share our lore with them, so what they create can do the job at least as well as we did. After all, a job well done is a mark of virtue. We point out things like workdays are not like regular days and having weekends and public holidays off is deeply embedded in the broader culture and so not likely to change just to make writing the code easier. We are aware that something like an awards show is one of those special cases that will feature material from multiple sources so the general rule of not allowing such copyrighted material to be shown is replaced by one saying not too much of the material can be shown and that all concerned parties need to be informed ahead of time so they do not react inappropriately. Not only should the show happen, but it should like it just happens that way naturally.

        Now, I will admit to a touch of schadenfreude when the lordly programmers ignore our lore — after all, what could they possibly have to learn from lowly serfs; they already know how to program and that is more than sufficient — and end up screwing things up spectacularly. After all, if a job done well is mark of virtue, then a job done badly is a serious personal failing. I know such feelings are wrong, but I really can’t help myself.

        I understand that your lordship’s little lecture was intended for my betterment and I am sorry that I cannot take it to heart, but I find that I continue to believe that knowing how to actually do various things and preserving the accumulated lore of my fellow serfs is a good thing and not a something to be shunned.

        I know that your lordship will no doubt share the details of this exchange with his fellows. All I ask is that the terms in which you disparage me and my opinions, while vituperative, are at least not vulgar.

        1. Gerard Pierce

          Nice double reverse. It’s a little late to respond to this nonsense, but it kind of does require a reply.

          The serfs I was referring to ARE the programmers. And as you tried to ignore, the “serfs” are the ones who get to take the blame when the managers (which I assume includes you) have no idea what they want, but are always willing to blame it on someone else.

          If you are not yourself a manager, then I assume that you were selected as a stooge for someone who was far enough up the food chain that he did not need to provide his own misinformation.

  5. Jill

    Suppose Wells Fargo made “an unfortunate personal loss” at the home of Tim Geithner? That would be a matter of private security with backup from police. How interesting, the rule of fiat looks!

  6. Greg Marquez

    Most crimes require intent, in legal language mens rea, an act is not a crime without the requisite mens rea…usually. In our modern world mere acts are turning out to be crimes regardless of intent.

        1. kevinearick

          Every mythology requires a black hole, which the beneficiaries only complain about when they peer into it from the edge, when it is too late.

          never again is a mockery…

        2. Observer

          Come on; it’s the WSJ. They don’t like it when congress makes pesky laws protecting things like rights and wildlife. Then the courts have to actually interpret and apply them and stuff. We can’t have that, now, can we?

  7. Paul Tioxon

    Lambert, I think you honestly believe you are on to some kind of political bright line that is culturally emerging in code as law. But really, people like these wronged homeowners are no different than police raids at the wrong address. I am sure you have heard about them. Wells Fargo comes under the general rubric that the powerful do whatever they please and if they make a mistake, tough fucking shit. It didn’t start with your precious rule of law being flushed down the toilet of history since the rise of financialized capitalism. Power is abused all of the time, and unless you can get a big time newspaper columnist in yr hometown or some kind of crusading consumer ACTION TEAM! to show up with cameras in tow, who just want to ask a few question about why someone robbed the nice lady blind, you simply get fucked over. And then there is the old fashioned protest with signs in front of the evil doer.

    As America spirals into more and more chaos, the above average people, with above average social capital, education, status, etc now find they are being treated like the dim witted trailer park trash too busy watching NASCAR or ghetto Blacks too busy in their underclass culture of poverty and dependence and dumb enough, according to you and your ilk, to go out and vote. Oh well, I guess I’ll keep watching the reinvention of the political wheel here at NC. But keep letting me know how the jackboot of oppression is harming the revenue stream and general joie de vivre of the newly oppressed intellegentsia. I think in lieu of not voting, maybe you should start a group of activists, a sort of Nader’s Raiders, say, Lambert’s Lambasters?

    Legislators can’t understand how internet technology is changing the commercial world anymore than they understand the derivatives of financial engineers enough to begin to respond to the problem. Maybe OCCUPY HTTP//www needs to write model code, er legislation and lobby the lawmakers to enact sensible, calculable, written laws.

    1. b.tom.darga

      “For ourselves, we shall not trouble you with specious pretences … Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” — Athenian Envoy to Sparta.

      The sad part is that they are only “powerful” because we hobble ourselves. If we so chose, we could simply extend our hand and crush them to dust in our grasp.

    2. ambrit

      Mr. Tioxon;
      If we wrote and enforced sensible, calculable laws, we wouldn’t need all those lawyers, lobbyists, and consultants, would we? Think of the immense hit our economy would take if we did away with those revenue streams! Why, that money would have to be put to some sensible, calculable use! (Hits manservants’ head against desk.)

  8. Jill

    Paul,

    I understand what you are saying and in many ways agree with it. It is true that a large portion of our people looked the other way as the rule of law was broken time and again against people who are poor or in some other kind of unprotected status in this society.

    This silence was a disaster and we reap the “rewards” of this silence now. As the lawlessness spreads, it’s important to understand what is happening, as important to understand as it should have been when it was happening to people in ways you pointed out.

    Truthfully though, poor neiborhoods have been wiped out by banking fraud, just utterly ruined. And copywrite laws will be most likely used against the less powerful, people who can’t fight back. To me, it’s an inversion of past wrong to ignore the present expansion of lawlessness. It is all coming together and it’s just as real when it happens to one person as another.

    Of course, the more powerless anyone is, the more easily all laws can be used to harm them. What ways of combating this have you found useful (if any)? I am asking an honest question. I would like to know anything, anyone has found that works.

      1. Nathanael

        “Solidarity” is correct.

        For a practical example, if you knew your neighbors, and some of them were at home, and this sort of break-in happened, and you had *solidarity*, your neighbors would make an effort to physically stop the home invaders and would call the police.

        If you have *solidarity*, you would have enough people to get together a political party, elect a DA, and start prosecuting crimes like these.

    1. F. Beard

      Haha!

      In the “bloody” Old Testament, one could only kill an intruder at night:

      “If the thief is caught while breaking in and is struck so that he dies, there will be no bloodguiltiness on his account. But if the sun has risen on him, there will be bloodguiltiness on his account. …” Exodus 22:2-3

  9. just me

    I read the linked HuffPo article “Bank Contractors Break Into Occupied Homes, Terrify Residents, Lawsuits Say,” from July. (The break-in contractors are called “property preservers.”)

    A review of court records by The Huffington Post turned up more than 50 homeowner lawsuits against banks and the two largest property management contractors in the U.S., Safeguard Properties and Lender Processing Services, stemming from break-ins of occupied homes. The allegations follow five years of generally woeful management of the foreclosure industry by all involved, as the inspector general for the Federal Housing Finance Agency, which oversees Fannie Mae and Freddie Mac, is raising red flags about the lack of contractor oversight by the government-backed mortgage giants.

    I don’t see anything in there about how the lawsuits have played out. Any homeowner wins?

    This correction at end:

    Correction: An earlier front-page headline on this story said that regulators were pursuing a criminal investigation of the major mortgage players. Regulators are raising red flags about these practices but have not yet taken formal action.

  10. just me

    Thanks again, Wells Fargo — more foreclosure fail on HuffPo, from 9/8/12:

    http://www.huffingtonpost.com/2012/09/08/lily-diaz-wells-fargo_n_1865837.html

    …imagine selling [a home] you thought you owned but did not.

    That’s what happened to Lily Diaz, a California woman who got two offers on her house, only to find that Wells Fargo had actually foreclosed on the home, according to CBS Los Angeles. Diaz says the foreclosure must have been a mistake because she has paperwork indicating she completed a loan modification with Wells Fargo in January, and has made her monthly payments in full since.

    What could possibly go wrong?

    With inset slideshow: America’s Worst Foreclosure Fails

    1. Nathanael

      The level of fraud by the big banks is so substantial it can’t possibly last. People have tried building economieson fraud before, and it’s unsustainable. Building an economy on violent theft is more stable!

  11. kevinearick

    9/11

    It’s what you buy; buy the truth, timeless value.

    people are in the wrong, place, doing the wrong thing at the wrong time, due to the false feedback signals subsidizing misallocation to nonperforming assets.

    if you must go down the krugman/jubilee path, the best means is grants directly to individuals to move…the problem remains community false assumptions, locking out migration of ideas.

  12. dw

    one thing not mentioned. most of this code wss written offshore. so we oursourced and offshored our laws. without any one noticing it. so what is it that Congress and states legislatures are suppose to be doing?
    and if i am not mistaken, seems like a RICO case can be brought by individuals, not just the justice department
    whi is likely cowering in their offices

  13. Tyzao

    It is important not to let the perfect become the enemy of the good, even when you can agree on what perfect is. Doubly so when you can’t. As unpleasant as it is to be trapped by past mistakes, you can’t make any progress by being afraid of your own shadow during design.
    Greg Hudson, Subversion developer

    the question is, how to regulate SVN (subversion repositories) — and yes, this will take revolutionary thought and a new generation of legal thought (not atypical teleology, just new as it relates to the current state of affairs)

    1. just me

      the question is, how to regulate SVN (subversion repositories) — and yes, this will take revolutionary thought and a new generation of legal thought

      How about checks and balances, and juries? Ask around, ask us if it floats, if it works, if it’s fair or fail.

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