Portuguese Chapter
This book, “Themes in Mediation and Arbitration,” contains a chapter written by Ana Goncalves and me. It’s my first publication in Portuguese.
Black Lives Matter/All Lives Matter
Once again, I find events troubling enough to make me want to speak out – if I were not reasonably certain that contracting the COVID virus would be life-threatening for me, I’d probably be in the streets. In lieu of that, here’s my take on BLM/ALM.
During the Tulsa rally and the events swirling around its perimeter, groups of protesters shouted “Black Lives Matter,” and groups of rally supporters responded with “All Lives Matter.” That seems to be a common occurrence at demonstrations and political exchanges across the country. Why should that bother me? Let me use an analogy.
If I told you, “my sister just died,” you would probably respond with something like, “I’m sorry for your loss.” You might truly mean that, and I would appreciate the expression of condolence. Even if you did not know me well, did not know my sister at all, and really were not affected, you would probably still take the “sorry for your loss” approach because that would be considered, in context, to be sensitive and polite. Again, I would appreciate the expression. And, even if you did not feel any deep sense of my loss, you probably would not say something like, “everybody dies sooner or later.” While that is objectively true, and is a statement that I would agree is true, in context that is something only an unfeeling, crass, jerk would say.
Black Lives Matter. What is the context? Statistics can be overused, but some basic comparisons make it clear that, on average, black lives are lived and valued differently than white lives.
The police kill a lot of people – over one thousand in 2019. The rate of fatal shootings of black citizens by police is far higher than for white citizens. Whites are killed by the police at the rate of 13 per million annually. Blacks are killed by the police at the rate of 31 per million – nearly three times as often. If you add hispanics to the mix, police kill non-white citizens at the rate of 54 per million – more than four times as often.
Black defendants are six times more likely to be sentenced to prison for crimes similar to those committed by white defendants, and the sentences are proportionately longer. White minors are arrested at the rate of less than 2000 per 100K. Black minors at the rate of 5000 per 100K – more than twice as often. White adults are incarcerated at the rate of less than 500 per 100K, while black citizens are incarcerated at the rate of 1500 per 100K – more than three times as often.
A widely reported analysis by EdBuild suggests that school districts with non-white students as a majority receive, across the US, $23 billion dollars less each year than districts with majority white students – the average white student begins with a head start on black students, an advantage that reverberates throughout life. There are obvious exceptions, but most citizens die in the same social class in which they are born. Less than 10% of whites under 18 live in poverty, while more than 30% of blacks under 18 live in poverty.
Black infant mortality rates are more than twice as high as white infant mortality rates – 4.7 per 1000 for whites, 11 per 1000 for blacks.
Maternal mortality is worse: 14.7 per 1000 for whites, 37.1 per 1000 for blacks.
Average life expectancy for a black citizen is nearly 5 years less than for a white citizen. To quote the American Bar Association’s research findings: “Black people simply are not receiving the same quality of health care that their white counterparts receive, and this second-rate health care is shortening their lives.”
There are many complex reasons for all of the things that indicate that black lives do not matter as much as white lives in this country. And it is possible to point to notable exceptions to all of the statistics I’ve cited. But the fact is that, in context, black lives are treated as if they do not matter in the same way white lives matter.
So, hearing “Black Lives Matter” and responding “All Lives Matter” is analogous to telling me, “everybody dies sooner or later.” Black Lives Matter. Yes, they do. All Lives Matter. That’s objectively true, and I agree that all lives matter. But responding to Black Lives Matter with All Lives Matter is, in context, at best insensitive and is, frankly, offensive.
7 Keys
Posted on the Mediate.com main page:
Every Friday for the next seven weeks, Mediate.com will be publishing a series of peer reviewed articles under the collective title Seven Keys to Unlock Mediation’s Golden Age. The objective of the Seven Keys is to encourage discussion among all stakeholders on navigating mediation’s best future.
I collaborated on two of the articles in the series. The first is under the 4th Key (The Profession), addressing a universal code of disclosure for international mediation (co-authored with Ana Goncalves and Francois Bogacz). The second is under the 5th Key (Technology), addressing ODR’s potential (co-authored with Ana Goncalves and Jeremy Lack).
White Privilege
There was an op-ed in the Washington Post this morning that basically argued that white folks should just shut up and listen instead of talking about the egregious, ongoing attacks on dignity and justice that black folks endure as part of their “freedom” in the US.
I respectfully disagree. I think there is a moral imperative for privileged old white guys like me to speak out loudly to those who don’t get it.
So, at the risk of bringing down the wrath of all the Internet trolls out there, here goes my take on white privilege and the current political climate.
I hate to break it to all the whiners out there who complain about being white and having it tough, but white privilege has nothing to do with having an automatically easy path through life. There are some, like our great leader, who had money showered on them by a rich father, and who have had an easy path through life. Most of my fellow countrymen and countrywomen, however, didn’t have that lifestyle kick start.
My father had a ninth grade education from a small school in rural Mississippi. After serving in the Navy in WWII, he went through an apprentice program and became a sheet metal mechanic. He worked his butt off for his entire life to make ends meet – and they often did not exactly meet. My mother finished high school and, after working her butt off rearing my sister and me, worked a series of secretarial jobs to bring in money and get those ends nearer to meeting. I have done ok, but it’s not because life was easy.
Was I the beneficiary of white privilege? You bet your life, I was. For a start, growing up in the Jim Crow South, the public school I went to was far, far better funded and supported than the black public schools. When I graduated from high school, I could go to any university I could get into and afford, and there was no grandstanding asshole standing on the admin building steps telling me I couldn’t go there because of the color of my skin.
That, ladies and gentlemen, is white privilege.
A friend and colleague of mine had a father who was a diplomat. While they were abroad, the family arranged for my friend to attend a private school – and the school was thrilled to know that they were getting the child of an American diplomat – until he showed up at school with dark skin. Then they suddenly had a “space” problem and couldn’t admit him until the diplomat went to court. If my father, heaven forbid, had been a diplomat and I had shown up for school, they would not have lied about not having room and in fact, they’d have made room for me if they had to.
That, ladies and gentlemen, is white privilege.
My parents never considered warning me about how to behave with the police when I was stopped. First of all, it was not likely that I would be stopped for no reason (and they would have been all for me being stopped for a good reason), and second it was basically inconceivable to them that I would be handled in an unfair and dangerous manner. Every black family I know with children routinely have “the talk,” especially with young black men, about how to behave when stopped by the police. The assumption is that they will be stopped for “driving while black” or some other “reason” that has black men stopped at a ridiculously higher rate than white men. Even today, just a couple of months ago, I felt perfectly safe making snide comments to a cop who had stopped me for violating a minor traffic law – I knew that the chances were approaching zero that he would do anything other than hand me the ticket and tell me to have a nice day.
That, ladies and gentlemen, is white privilege.
But if you REALLY want to see white privilege in action, take a picture of this. A group of fat-assed white dudes carrying automatic weapons marches on the state capitol building in a Midwestern state, actually making threats against the governor. What is the police response? “Now, boys, I know you’re upset – you just go on and have your protest.” I would ask anyone with at least one lonely neuron firing in her or his brain to consider what would be the police response if a bunch of black dudes marched on the state capitol carrying automatic weapons and shouting threats to elected officials.
That, ladies and gentlemen, is white privilege.
Or take a picture of this. A black family is at home, standing on their own front porch, not protesting, not shouting, just standing on their own front porch as a police line walks by on the way to a demonstration. The police leader shouts at the family to get back inside their home. There is no confrontation going on, no protesters in sight – the cop just gives them an order to get off their own front porch. If that happened in my white neighborhood, I’d be tempted to tell the cop to go eff himself, and I would in all likelihood suffer no repercussions for doing so. For the black family things didn’t work out that way. They didn’t go inside fast enough, so the police opened up with rubber bullets and tear gas.
That, ladies and gentlemen is white privilege.
White privilege is not about having it easy. It’s about not having to put up with this kind of bullshit every single day of your life.
A couple of years ago I was having lunch with a student who wanted to talk with me about the career he was just starting. This young man had all the elements that suggest a promising future – he is smart, well-spoken, attractive, and personable. He is also black. During the course of our conversation we began talking about the latest police killing of a black suspect. He said to me, “I try hard to be calm, and I know I shouldn’t get angry.” I interrupted him and said, with some incredulity, “why the hell should you not get angry? You should be furious.” The question is not whether injustice and abuse should make you angry – the question is what to do about it. I won’t get started about whether protests work, but what I told him then is what I would tell him today. Protest, by all means, but organize. One person acting alone is good, but ineffective. One person acting in concert with others who share frustrations and convictions is called a movement, and that can be effective.
It is my hope that people of good will, white and every other color, will be willing to crawl across broken glass to vote against any candidate who in any way, through action or through rhetoric, supports the racial, political, religious, and social fracturing of the country.
CyberJustice Lab
I recently paticipated in a discussion about ODR and Labor Law with the Laboratore de Cyberjustice (based at the University of Toronto). The video of the discussion can be found at this URL: https://www.youtube.com/watch?v=e0CySWfXRtE&feature=youtu.be My comments and the Q&A start at about the 26 minute mark.
I was ODR when ODR wasn’t cool.
The COVID-19 social distance measures have not eliminated the need for guidance and training related to online dispute resolution – in fact, it seems to have intensified the need. Currently, I am is working on a number of consulting and training projects:
Online Mediation training for the World Bank;
Mediation and ODR training for the Kusamotu & Kusamotu law firm in Lagos, Nigeria;
Online Mediation training with ICFML, with students from Kuwait, Canada, Australia, Brazil, and the USA;
ODR training for mediators with NVMS;
Consulting and training through Cornell University’s Scheinman Institute for union negotiators working online;
Ongoing work with IMI, ICODR, and the ABA related to ODR ethics and standards of practice.
Zoom, Take 3 (and final)
I promise this is the last post on Zoom – the material below was developed by the National Center for State Courts – it pretty much parallels what I wrote earlier, and suggests, in their words, that Zoom, handled correctly, is pretty much “bullet proof.”
The concerns outlined:
Apple pulled Zoom from the Mac Appstore amid privacy concerns – this happened last summer and has been fixed.
Zoom was sending all the data to facebook – it turns out just their iOS (iPhone, iPad) app was using the Facebook development kit to login facebook users. Included in that kit is a “call-home” beacon to facebook. This kit was removed from their app last weekend.
Zoombombing, other people jumping into zoom meetings, etc – this is all people using poor cybersecurity practices. We’ve configured our Zoom by default to have the host control over admitting participants. We encourage hosts to 1) have unique meeting ID links, 2) have meeting passwords, 3) Vet the list of people in the waiting room to make sure no strangers are in.
In all cases so far, its been users that have blasted a public meeting with no waiting room and had the link shared far and wide.
Zoom leaks your email address and profile photo to strangers – this is in a feature that we’ve got turned off for our Zoom installation – doesn’t apply to us [in the courts].
Zoom doesn’t use end to end encryption – true – they use transport encryption, just like the majority of things. Email, web surfing, things we do all the time, use transport encryption and not end-to-end.
Zoom allows malicious links to be sent in chat – again, we’ve configured it so that the host has to admit participants. OCA’s guidance is for the hosts to vet participants in the waiting room. Please don’t allow people that are likely to send malicious links in the chat.
Zoom has zero day flaws in it – there was a zero day published yesterday that outlines an exploit where an attacker can take control of your webcam, mic, and computer as whole. In the technical details, it is mentioned that this is a local attack, meaning that the attacker has to have physical access to the machine – as in he/she has to steal it (or otherwise be in possession of it) in order to exploit it.
Whether or not you feel Zoom is still the best option for us to use for our public and our secure meetings?
OCA is still comfortable (I personally am too). For all meetings, I’d make sure the host is the one governing who can enter. Have a password for that meeting.
For public meetings, I recommend that you only allow the participants in on zoom and use YouTube to webcast to achieve the public part (people can see on YouTube, but can’t speak or do anything).
Zoom, Take 2
The Zoom question is complicated, particularly because of the negative press the platform is getting.
To begin, remember the rule that one can never absolutely guarantee privacy online. Having said that, I think Zoom is still relatively low risk. The negative news has been about a few specific issues related to the platform.
First, that the platform is subject to Zoombombing – having unauthorized users break into meetings to eavesdrop or inject objectionable content. I dealt with this a bit in an earlier blog post, but to recap, the interruption of Zoom meetings that fit under this category have been, to my knowledge, either due to compromised linkage software that allows users in a company’s internal system to connect to Zoom (where the linking software is the hackable weakness), or due to careless handling of URL login’s and passwords. I am not aware at this point of any hacks of Zoom meetings conducted using Zoom apps on both ends.
A second bit of bad news is that Zoom used its platform to gather information about users. My response to this is that most, if not all, online platforms do this. Due to the negative publicity, Zoom has disabled the function that allowed users who paid for Zoom’s marketing service to access user LinkedIn data, but the fact remains that just about any online service has the ability, and the inclination, to gather user data. That’s just part of the business they are in.
The other bad news has been that Zoom was not totally up front about the “end-to-end” encryption they use. For reasons I won’t go into, true end-to-end encryption with multiple users is damned hard to do. If they are to be believed, FaceTime does it, but most platforms don’t. According to some tech investigators, Zoom encrypts video, audio, and text for meetings held with all users on the Zoom platform – the encryption is from the user to Zoom’s servers, and from Zoom’s servers back to the user, but not between Zoom servers in the cloud. This allows Zoom to view/hear meeting content on its own servers, but makes hacking the stream from user to user very difficult. There may have been one, but I do not know of a case of hacking that has broken the encryption in transit, nor do I know of a case of hacking involving Zoom’s cloud servers. Again, the Zoombombing and data problems of which I am aware have been due to either connecting software or bad user behavior. As an aside, the way Zoom handles encryption means that they could comply with court orders to reveal information stored on their servers, and that info is not encrypted (except for text in the chat room, which is apparently really encrypted end-to-end in the classic sense).
So, should you still use Zoom? I’d say the answer is a slightly qualified “yes.” If you are dealing with info that would truly ruin you if it were compromised, and if you had a way to send that information in offline ways, or in self-encrypted formats, I’d not use any online platform. But most info does not fall into that category – if may be sensitive or proprietary, but the question of whether to deal with it online is a risk/damage assessment that would make using a reasonably secure platform ok. Zoom is a reasonably secure platform, in my opinion. Apparently, some of the organizations that have blocked the use of Zoom have suggested that employees share information by email (perhaps the most vulnerable online platform that exists) or by phone (making the simple act of hacking mobile systems a risk). I still think WebEx, as a web video platform. is slightly more secure, but it is not as user friendly – if you set Zoom up well, use it with all participants on the Zoom platform (not calling in by phone or joining from another platform) using computer audio, and you are smart about how to handle URL login information and passwords I think you can use it responsibly and ethically with parties.
Zoombombing
There has been a lot of talk in the past few days about “zoombombing” – having an interloper interrupt a Zoom session with racist, sexist, or pornographic material.
Since Zoom and other video platforms are bearing the brunt of the load for letting us interact with each other at a distance, this can be a real problem, particulalrly for teachers and students using the platform to conduct education remotely. First, let me suggest that this is not a problem with Zoom’s security per se – the streams are encrypted in both directions, and Zoom has not, to my knowledge, had a significant problem with hackers except for instances where some linking software has hooked Zoom into other platforms (most noteably, Cisco). So, zoombombing is apparently a classic example of the thing that causes most security problems online – user behavior.
The basic problem seems to be that log in URL’s and passwords are being shared in a way that makes them vulnerable to hacking and stealing (or are inappropriately given to bad actors by legitimate attendees). So, the first line of defense is to protect the URL’s and passwords. Doing so can be a bit onerous, but in situations where the information you are dealing with is sensitive, it’s worth the effort. So, some of the options are to use a URL and a password, but not to send the URL and password together, or to send one via email and supply the other by phone, or to use encryption devices to pass log on information to participants.
If you are a host, there are some settings you can change that will help you either block or expel bombers if they get into your session:
1) Disable “Join Before Host” so people can’t cause trouble before you arrive;
2) Enable “Co-Host” so you can assign others to help moderate;
3) Disable “File Transfer” so there’s no digital virus sharing;
4) Disable “Allow Removed Participants to Rejoin” so booted attendees can’t slip back in.
ABC’s of ODR Video
The ABC’s of ODR session that Larry Bridgesmith and I did yesterday is available at this link: ABCs