Review: “Human Capital”

April 24, 2014

This film is a hit in Italy, and early response is positive at the Tribeca Film Festival. The audience seemed enthusiastic, although there’s likely a buzz factor when the director and the two glamorous lead actresses show up.

Valeria Bruni-Tedeschi and Fabrizio Gifuni. Photograph by Loris Zampelli

Giovanni (Fabrizio Gifuni) and Carla (Valeria Bruni Tedeaschi)

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Dino (Fabrizio Bentivoglio) and Roberta (Valeria Golino)

The prologue shows a bicyclist struck by a car at night, with the car just driving off. We had already seen him as a waiter at a lavish banquet, and he was on his way home. We find out later he will die from his injuries.  So it will be a hit-and-run case movie; it will be told in three parts, each named for a central character. The first part concerns Dino, a middle-aged neer-do-well who is married to, Roberta, a psychologist. This part opens six months before the accident, when Dino picks up his teenage daughter, Serena, at her boyfriend’s house. The boy, Massimiliano, is obnoxious and spoiled,  especially by his mother, Carla, who’s somewhat of a ditz. The boy’s father, Giovanni, is a wealthy hedge fund owner. When he finds this out, Dino can’t pass up the chance, and he lies to Giovanni about his finances in order to buy into the fund. The second section concerns Carla, who spends her days shopping and regretting the theatrical career she abandoned to marry Giovanni. But her passion in life is her son, especially after  the police suspect he is the driver of the car. The final section is about Serena, who had been a mere presence in the film until then. But there were hints earlier that she is hiding a secret about the accident, and we see the reasons for that. By the end of the film, the real driver of the car is sent to prison, but not because the police solve the case. Instead, we see that the cause of “justice” is only served because of a secret deal that saves Dino from financial ruin.

The director, Paolo Virzi, is clearly a talented filmmaker. Frame composition, editing, cinematography and pacing show control and assurance. The talented and attractive cast perform competently, creating sharply defined, if shallow, characters. The main problem I had was with the characters themselves. The first two sections, which are well over half the film’s length, are concerned with characters who are distasteful and/or stupid, and there’s little pleasure in watching them. They are familiar, shallow bourgeois types, presented without insight or humor. The two fathers, in particular, are so repellent that I was irritated by the women who married them, even though they are meant to be sympathetic. Much screen time is also spent on Carla’s affair with a theatre director. Besides having nothing to do with the main story, it includes one of the most pointless and unconvincing sex scenes I can remember. I should also mention that – even in subtitles – a lot of the dialogue rings false, as in bad soap opera. One of many examples is when a group of teenagers sees Serena with Luca, one whispers something like, “Look, there she is with the druggie.” The fact that the story was adapted from an American novel may also explain these awkward moments.

The film improves in the final section, when we are shown events from the daughter’s viewpoint. By the day of the accident, Serena has dumped the worthless Massimiliano and become involved with Luca, an emotionally fragile boy who had gone to prison to protect his uncle, who, incredibly enough, is an even more disgusting person than Dino and Giovanni. Luca is meant to be sympathetic, but is only a generic victim type, the kind you find on your average “Law and Order” episode. Serena, however, as played by the talented Matilde Gioli, in her debut performance, is the moral center of the film. She has inner strength and genuine compassion for others. The final shot is uplifting and hopeful, showing how Serena shrugs off the selfish behavior of the adults around her to help another human being in trouble.

The film is being touted as a hard-hitting probe of financial corruption, but it’s really not. You’ll find a slickly made human drama, intermittently affecting, but marred by phony touches and one-dimensional characters.

Review: “Under The Skin”

April 15, 2014

Would you pay to see a film that was called an allegory about the sexual repression of women in a male-dominated culture? I wouldn’t. But if, instead, you were shown a near naked Scarlett Johansson as an alien creature luring men to death during sex, you just might. Welcome to a growing genre I will call “Feminist Sci-Fi”. This flawed but bracingly original example, directed by Jonathan Glazer, is probably the first near masterpiece in the category.

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Scarlett Johansson in Under the Skin.

A long wordless opening suggests an alien landing on earth. We first see her being given the clothing of a dead woman by a man who rides a motorcycle. Whether he is her helper, or her alien leader, is never explained. Looking like a tart, she drives her car aimlessly about Scotland, picking up men who see the promise of fast, zipless sex. Once indoors, she disrobes slowly, seductively, and the men do likewise. Suddenly, without even a touch between them, the men disappear into blackness. This startling image is the most disturbing in the film. The pattern is broken when she picks up a man with a deformed face. They talk in the car, in the only sustained dialogue in the film. They touch and something – empathy? – stirs within her. This mysterious feeling disrupts her mission, and she lets him escape. The “creature” is thus shown to have human vulnerability. Soon, once a man treats her with simple kindness, without carnal overture, she is drawn to him, and they have intercourse. Startled and confused, she sits bolt upright in bed, grabbing a lamp to examine her own genitals. This new awareness in her sets up the film’s violent conclusion. She now feels that her sexuality is real, and is something she must protect. For the first time, she resists a man, and her human cover is torn in the struggle. The man, suddenly terrified, reacts to the woman’s true sexual nature as if she is an invading alien that must be destroyed. Hazard shows confidence in telling the story almost entirely with gesture and wordless action. There is little dialogue, with much in an impenetrable Scottish dialect. The pace is often agonizingly slow, with an overuse of static shots held for no apparent reason. Johansson’s impassive face is the main narrative device, which is both the film’s strength and its weakness. She is shown watching everything around her, without emotion. Of course, this would be what an alien does; but, with no recurrence of these images later in the film, you suspect it’s just padding. The score, by Mica Levi, is the single best element in the film; a constant, droning fury. At times, it seems the film is edited to the music, instead of the other way round. In a brunette wig, Johansson holds you with her dark, solemn beauty until the film’s provocative climax.

Review: “The Strange Little Cat”

March 29, 2014

This is the only film I caught at this year’s New Directors?New Films series.

Before the film started, the director, a slight, appealing young German named Ramon Zurcher, thanked us for coming and wished us “good projection”. Unfortunately, I found nothing as charming or as amusing as that in the film. Set entirely in a bright but small Berlin apartment, it chronicled a family gathering that included the mother and father, their children and a grandmother, who was visiting along with several other family members of unspecified consanguinity. There is also the titled cat, which is orange, and a black dog that has at least equal screen time. At any rate, I counted more woofs than meows.

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Deliberate tedium seemed to be the goal. N-O-T-H-I-N-G  H-A-P-P-E-N-S. The precocious little girl irritates mommy, who gives her a couple of perfunctory slaps. Grandma is sleeping. Mommy is frowning. The dog woofs. The cat crawls over sleeping grandma. Relatives come and everybody kisses. Oh. It’s over.

The notes said Bela Tarr was an influence. If I read that first, I might have skipped it. But it reminded me more of a Donald Barthelme literary parody I read which consisted entirely of the trite prose connectives that link the parts of a story, but with no story around them. It read something like this: “Stung by his remark, Martha moved away from the window.” or “Paul folded the message into his pocket, lit his pipe and left the room.” For seven pages, this is clever and amusing. Style over meaning. For the film, though, the lack of meaning was its meaning, as if style was something to avoid.

Was anything good? The film was short (75 minutes). It was well projected. The actors were not unpleasant to look at, even though the non-humans, including a moth and a pigeon, stole their scenes with ease. I also liked that a rat that the girl said she saw, and was waiting to see again, never shows up. But the story doesn’t either.

 

 

 

“It’s A Wonderful Life” (1946)

March 4, 2014

This is not a review. This is a unique and wonderful film, but we all know that. I came to appreciate it late because I have a long-standing aversion to “angel” stories, especially when heavenly forces help good to triumph over evil. But IAWL is not sentimental in the sugary sense. It’s hard-nosed and often brutally frank about how even decent people are quick to blame others for misfortune. The scene where the young George Bailey confronts the pharmacist he works for with the truth about why he’s being punished is one of the most emotionally penetrating scenes in American film.

But this is not an appreciation either. I want instead to look at the reasons why the film is so beloved today. It has come to signify a period in American history when people knew what it meant to live in a community; when a sense of personal responsibility could be counted on to summon the best in one’s character. At the end of the film, the good people of the town save George Bailey from prison by recognizing how much they have always benefited from George’s devotion to that code of responsibility, and of how deficient they were compared to him.

Looking at the film today, you see just how much our understanding of democracy has changed. The story concerns many of the same things that are part of our current political scene. It deals with banking, with charges of criminal fraud, with the disruption of the economy due to inaccurate information and with the resulting mass panic that threatens to bring down the whole system. The crisis is averted when the people of Bedford Falls take action by replacing the lost money with their own, as a gesture of confidence in a man they admire and trust.

Trust is the operative word here. As a banker for the town’s savings and loan, George is a powerful person in the city’s economy. But he has always shown a personal commitment to the needs of the townspeople, his clients. Unlike Jimmy Stewart’s other small-town American, Jefferson Smith (in Mr. Smith Goes to Washington, also directed by Frank Capra), he has spent a lifetime as a productive citizen in the same town where he was born. Without that trust, the action of the townspeople wouldn’t make any sense. Why should one’s neighbors give their own property as a gift, unasked, just to save another person? But audiences accepted this as the natural and right thing to do.

Stepping back from this story, we notice an important omission: the role of government. There is none in the film. And we don’t miss it because Bedford Falls comes to represent a functioning democracy in microcosm. Even though we know that America is not really a small town where everyone knows everyone else by name – which is not too difficult when the entire population does not exceed the number of contract players at RKO Pictures – we can relate to the values exhibited by these people as necessary for the preservation of a decent and prosperous society anywhere.

But anyone looking at American culture today will have to admit that this sense of a communal identity has vanished. There is an emphasis in the culture  on defining people by labels, whether by identifiable traits, such as race or income, or by ideological choice. Surveys are published – the red meat of the pundits – that purport to show the preferences of three hundred million Americans based on checklists from a thousand or so strangers which are then interpreted by statisticians who will never meet any of the people who completed the survey. This cultural shift did not happen by accident; it was a pre-determined campaign to reformulate the discussion of national policy in the least personal way. It allows the two major political parties, the mass media and other power-seeking groups to pull the camera back to the long shot, so to speak, so that we only see ourselves in purely statistical terms. It’s a sly strategy because policy issues can then be – falsely – characterized as beyond the reach of the average citizen. After all, if the problem of, say, unemployment is presented, repeatedly, in terms of a national unemployment rate of 6 or 7 percent, this effectively transfers it to a place where only remote power figures in Washington, abetted by committees of technocrats, can be counted on to be effective. Almost imperceptibly, the role of the citizen is diminished in the public’s mind. Even though you may know some unemployed people personally, you would no longer think of taking the kind of action that the people of Bedford Falls would take.

I’m not suggesting that we, as a country, are rejecting national government en masse in favor of direct local control of our communities. But the development of vital and growing social movements like the Tea Party and the rise of independents, who reject identification with either of the two major parties, indicate a distrust of the very vocabulary of political discourse today. The debate now is between massive, distant institutions who are out to destroy each other, while their leaders talk to their followers as if the country will collapse without total victory. We are deluged daily with charts and statistics that are claimed to show, decisively, just how stupid and dangerous the other side is, and which demand immediate action. But if the failure to enact these big mega-programs would be so catastrophic, how do you explain the  growing movement for non-engagement and for delaying action, even to the point of throwing the country into bankruptcy? Why has the resistance to Obamacare not disappeared by now?

I’m not saying that millions of disaffected Americans believe that we can ever return to the view of democracy shown in It’s A Wonderful Life. In fact, most of them probably know that Bedford Falls was as much of a fantasy as George’s guardian angel. But it should be obvious that its enormous popularity and significance today is a reflection of a growing trend: our rejection of the increasingly punitive oversight of our personal liberties by the federal government.

The Wolf of Wall Street: Afterthought

January 21, 2014

This is not, technically, a review. More of a general impression some weeks after seeing it.

Yes, it’s overlong and repetitive. While never boring, you often laugh and are disturbed at the same time. The lead character, Jordan Belfort, is – and this is saying something – the most repellant scumbag ever to be in a Scorsese film. He has NO redeeming attributes. None. He overwhelms you, but without charm. Is this DiCaprio’s fault? Or was it intended? I certainly felt unease while watching it, despite a few bravura set pieces, especially the quaaludes scene.

Yet the film has staying power and stature. Among many memorable scenes is this one: the roomful of traders has gathered to hear their boss, DiCaprio, who beams triumphantly. He reminds them – yet again – how lucky they are to be working for him, and how their future will be golden. Then he points to one of them, a woman, and tells the crowd her story. She had come to him to ask for help in a family emergency. She needed money badly. With extravagant compassion, he tells of his overwhelming sympathy and generosity by giving her much more than she even asked for. The room is dumbstruck.

This scene conveys a terrible truth. While Belfort’s need for more money is an addiction that can never be satisfied, like his need for drugs and sex, there is always another need, a hunger that grows along with success: the need to be loved. Belfort was using his power to demonstrate what a good person he was. All of the spoils that come from the ruthless pursuit of money and power can never replace the one thing that make it all matter: the approval and love of others. It was as if Belfort was waiting for the right opportunity, and he was going to grab it.

But behind this, and it’s the ugliest part, there is always a threat, a hidden message that I am sure was clear to everyone who applauded him for his selfless act: do not dare to cross me! If I can do this much to make you love me, I can do just as much to make you wish you were never born.

Film: Inside Llewyn Davis

January 11, 2014

Let me say right off that I  enjoyed this film, with one strong reservation. The Coen brothers know how to present their quirky charmers, and how to make us care what happens to them. Oscar Isaac plays a young folk singer in Greenwich Village, 1961, and the milieu is so perfectly rendered that I felt I could walk through the doors of those coffee shops and settle down for a cappuccino, like I did then. The music, the settings, the fashions and hairstyles, just the overall look of the film is “just right”, and I applaud that.

And the story is pleasing too, right down to the “reprise” ending. The title character is shown dealing with the kinds of problems a lot of young music hopefuls dealt with then: flopping at friends because you didn’t have the money for rent; betraying those friends by sleeping with their girlfriends; random sex with various other girls; paying for the occasional abortion; rushing to music gigs that paid by passing the hat around; listening to your married sister tell you what a bum you are, and assorted other humiliations. Oh, and finding and returning a cat that you let escape from your friend’s apartment. While Llewyn doesn’t really change as a result of these events, we see that his resolve to continue his dream of music stardom is severely tested, but not destroyed. Above all, the film depicts a time and place that we can look back on nostalgically because life, while it could be harsh, was also innocent and simply understood.

The trouble is, it wasn’t. The standard refrain is that America was “innocent” until the shocks of the Kennedy assassination and Vietnam; that young people were only just beginning to question middle class values, and stepped outside of them with great trepidation. But actually, the young people in New York at that time were already steeped in cultural and political defiance. It was called the “counterculture” for a reason. As an artistic and educational center, New York was attracting young people who were already openly hostile to a society that glorified war, racism and materialistic excess. Unmentioned in the film, but so prevalent at the dominant academic giants at the time – Columbia and NYU – was the fact that you could attend lectures in those classrooms, every single day, about how America’s future was going to be glorious because Capitalism was dying, and the imminent triumph of Communism would finally bring justice to this country, and to the rest of the world.

My point is that, even for a self-absorbed, insensitive louse like Llewyn, there was the conviction that art would change the world, and there was no finer way to live than to liberate society with one’s “genius”. All of that other “little stuff”, like using and betraying one’s friends, and living off others, was for the greater good. And anyway, an artist should be appreciated for what he’s giving to the “cause”.

I can’t overstate how the omission of politics from the folk music scene at that time, in that place, lessened my appreciation of the film’s virtues. But I think this reaction is largely due to my intimate connection to the world it portrays. Most viewers won’t have that problem, and should have a good time.  The characters are rich and individualized, and the cast was perfect, starting with an electric Oscar Isaac. Only next time, I hope he gets to play a character with some backbone.

Film Review: Nebraska

December 25, 2013

Alexander Payne’s new film demonstrates the artistic virtues of modesty.  His last two films, as well made as they were, disappointed: with About Schmidt, a loose meandering narrative winds up woefully pretentious; but with his next film, The Descendents, a tighter focus didn’t help because the dramatic payoff was so weak. Finally, Payne discovers his strengths again. Nebraska benefits from its control of tone and structure, guiding us through a simple story of a son’s newfound connection to his elderly father. The modesty pays off because we become absorbed by believable characters who are presented in the simplest dramatic terms.  Bob Nelson’s script never hits a false note. The resolution of the story satisfies because nothing is falsely intensified for a cheap emotional payoff. We see that only one of its characters, the son, changes at all during the course of the film, which must have been a hard sell to producers because audiences have become so used to being spoon-fed the uplift of phony reconciliations.

The story concerns Woody, a feeble, elderly drunk (Bruce Dern) barely surviving with his scolding wife, Kate (June Squibb), on their farm. His son, David (Will Forte), a neer-do-well himself, is at least not self-destructive like his dad, but is only able to hold down a sales job he hates, and has no real relationships. When Woody mistakenly thinks he won a million dollars, he browbeats David into driving him to Omaha to collect his “winnings”. David does it to humor him, even though he dreads the moment when Woody learns the truth.  Along the way, they encounter the people that Woody knew from his past, a collection of aimless, mean-spirited losers who stayed in the town he had left years before. Dim bulbs all, with two exceptions: Ed (Stacy Keach), the dominant force in the town, who is even more mean-spirited, but cunning and dishonest enough to rule the roost, and Peg (Angela McEwan), Woody’s first girlfriend, who has stayed to run the town paper.

Filmed in black and white, with minimal camera movement, Nebraska shows the extent that people can become attached to the land, and how it diminishes them. The sky in the American plains is vast and oppressive; the land is barren, without promise. Why do they stay?   We get no clear answer to that, and a good thing too.  Any person of average intelligence could give a theory of about it – say, the need to be near family, the comfort of the familiar – but to have a character actually say those things would be fatal. Payne lets the story bring the audience to that conclusion, through the skills of his cast. There are a number of “Leo McCarey” moments. My favorite is when Kate visits the town graveyard and repeats, with absolute delight, every salacious bit of gossip she can recall about those buried there.

Whatever Bruce Dern’s Oscar chances, we already know it’s the role of his career. He is especially fine near the end, when he tells his son  what he wanted the money for. This speech forges a steel resolve in his son, leading to the film’s climax. Part of the film’s success is in seeing just how pathetic Woody’s “triumph” really is, but why it is so important to him anyway. But the most important character is David, who actually discovers new strengths in himself; nobody else discovers much of anything. Will Forte is certainly appealing, but only adequate in the role. He’s not “there” yet. He doesn’t yet convey the sense of someone being tested from within, so that David’s final gesture is fully prepared for, even as it surprises.

Obamacare: The Second War

December 5, 2013

We hardly expect to see obscenities in the Gray Lady, much less on the front page, but there it was, almost shimmering in its power: “redistribution”. Esteemed commentator John Harwood took up the challenge by describing how the Obama administration sidled around the dreaded word when selling the ACA to the public in 2010, and ever since, and by exposing just how dishonest this was, since redistribution is such an essential part of the law (NYTimes, 11/24/13, p.1). Of course, a brief essay could only do so much in terms of analysis, and Harwood should be given half a bravo for his frank terminology in pointing out that the cost of health insurance will increase for many of us because we are subsidizing those who are not paying their full cost. The subsidy is mainly channeled to two groups: those who cannot afford coverage, and those shunned by insurers as too risky because of a prior condition. So this is the cost part of the “redistribution”.

But this is only half the story. Once the ACA starts to operate as intended – and, yes, I think it will eventually – we’re going to see the other kind of “redistribution”, one that I haven’t heard much about even from its opponents. I am referring to the redistribution of the care itself, viz. what we are actually paying for with our premiums. 

To put it bluntly, the consequences of redesigning the entire marketplace for a commercial service will cause the kind of discomfort that this blog is named for. And, yes, medical care, whatever else it may be, is a commercial service. It remains ruled by the marketplace, and I am confident we will see major changes in how quality medical care is “re”-distributed, probably within two years. Unlike Social Security, which is a universal pension program, health care cannot be standardized into one government-approved delivery system. Social Security exists alongside employer pension plans and private ones, but the end product for all is still delivered in only one form: money. While the amounts may differ, each dollar unit is spent in exactly the same way. For that, one dollar is as good as another.

Not so with health care. What you are paying for is the full “experience” of medical treatment. This is only measured by how you feel when the treatment is over, once you get back to living your life. Which usually means not thinking about your health at all until the body – that pesky thing! – forces you back to the doctor’s office. At that point, the measure of “quality” health care is not only how much you pay for it but also whether the problem is fixed and, of at least equal importance, what the total experience feels like from the patient’s point of view.

There are a lot of components to that experience, among them: the location of the treatment facility; the comfort level at the facility; the amount of wait time; the amount of time with the treating professional; the reputation and level of experience of that professional; the confidence you feel, both during and after treatment, that you are receiving the best care available for you at that time, for that problem. And there’s another part, the one nobody likes to talk about: who else is waiting with you to get treated by those same people.

My feeling is that, once Obamacare gets going, there will be lots of attention paid in the media to finding out the “number ranking” of the providers, and the results will be this: the people who are receiving the most care by the HIGHEST-rated professionals are OVERWHELMINGLY those who are paying more for it. Conversely, the ones getting the most care from the LOWEST-rated professionals are the underclass, who are being subsidized by the taxpayers. This divergence will come about because the market forces that are left untouched, or relatively untouched, under the plan will converge to activate a kind of “counter-redistribution” within the health care marketplace. Of course, this will be totally unacceptable to the progressives, who will raise bloody hell at the continuing inequality in the distribution of a “basic right” in our society.

Thus, the second war of Obamacare. But the combatants will be different this time. The progressives were always waiting for the data to show the divergence because they never believed Obamacare would be able to prevent it. They were always looking to impose the full Cuba-style egalitarianism, namely the single payer system. Rather than “adjusting” the law, they will use the data to try to kill it and replace it with single-payer. The moderate Democrats and (admittedly few) Republicans who want to preserve the law will be the main target of their rage, while the right-wing minority who always hated it will just snipe at both armies sporadically.

The Model Apartment

October 27, 2013

Although Ben Brantley called this a “neglected masterwork”, by Don Margulies, it is seriously flawed, even if never less than interesting. This story of an elderly couple, Holocaust survivors, who retire to Florida but find that they cannot escape the legacy of that horrific experience, especially in how it affected their adult, mentally disturbed daughter, is often compelling and theatrically imaginative. Margulies can write emotionally charged scenes that are convincing individually, but the gaps in credibility and tendentious symbolism prevent any satisfying dramatic resolution.

When we first meet the couple, they are moving, temporarily, into a “model apartment” in Florida, because the condominium they bought was not yet in a livable state when they arrived with all their possessions. But the “model” was not ready for habitation either, considering that the TV and refrigerator were meant for show only, and were inoperable. Instead of moving to a motel, they adjust to the situation by minimizing their own discomfort. We learn that, in one way or another, this is how they have lived their entire lives.

The play proceeds from that unlikely opening – since their lack of preparation for this major change defies credibility – to the appearance of their daughter, an obese manic-depressive who trailed them from New York. The tone shifts, quite suddenly, to the kind of intense, dysfunctional family dramas that have flourished here since late O’Neill, but with the leaps into fantasy that were part of Arthur Miller’s arsenal.

It doesn’t work. The adult daughter is not remotely credible, and her screeching harangues seem to be the author’s literal denunciation of the couple’s self-defeating obsessions instead of the pain of a fully realized character. This is fatal, since this young woman’s fate is the dramatic climax of the play. Especially unconvincing is the author’s apparently sincere belief that the couple’s attempt to raise their daughter as the substitute for the child they lost in the Holocaust is the source of her illness; half-baked Freudianism even when trotted out in the film Ordinary People in 1980. We thus cannot condemn the couple for how they treat her, since she is only a device to impose guilt on the main characters. Sorry, I really meant “GUILT”.

Primary Stages’ first-rate production cannot hide the play’s organic deficiencies. It mishandles a serious theme, one which was treated far more successfully in Saul Bellow’s dazzling novel, The Victim.

NSA Fears

July 20, 2013

 

The question of government surveillance is getting major play now, and we’re forced to examine the protection of privacy in the Constitution. But the basic issue is whether we are now more vulnerable to government abuse. Based on the published Snowden leaks, I think we are, but this can hardly be surprising after 9/11. We were always aware that the Bush2 policy was to expand surveillance into all electronic contacts, both public and private, as necessary to combat terrorism. Ostensively, that is. As we’ve seen many times before, the executive branch often finds reason to consider its own political opponents as “enemies” of the country as a whole, and can hide such activity in the name of “national security”. But that problem will remain even if the we make a new legal definition of the right of privacy. No, the difference today is the increase in the amount of publicly available information about each of us, and the ease with which it can be learned.

Changing the rules is inevitable because of the sheer number of electronic communications that are made each day, all of which are retrievable from the internet and the records of public carriers. As Fareed Zakaria has pointed out, the data is entirely in digital form and is permanently stored in the “digital cloud”. But we should remember that the mere collecting of this data is not an invasion of privacy per se, at least not in the traditional sense.  Privacy is only invaded when someone is actively looking for something, and inspects your records or property to find it. That still exists, of course, but the revelations in the leaked information concern this new kind of surveillance.  This data is apparently being stored without any intent by a government official to target a particular person. It is contained in all of the electronic communications we make every day. They are permanently stored, and can be accessed by the government, or, for that matter, by anyone else. They are thus a tool for a potentially greater abuse of privacy than anything we have experienced before.

The new rules must be different from the previous ones, which were mainly for pre-selected monitoring of our activities by government agencies.  Wiretaps and the like must still be reviewed by impartial judicial officers.  They are usually predicated on some evidence of ongoing criminal activity, and this must be sufficient to avoid fourth amendment preclusion. But that was the old game; before the “cloud” became the permanent storehouse of data that used to need a search warrant to access.

Still, although the existence of this stored data is disturbing, the very nature of electronic records allows us to prevent potential abuse by the government in ways that we never could before. This is because it’s not the collection of the personal data – whether phone calls or other records – but how it is accessed and used that matters. This is different from J Edgar’s time, when agents could target  “enemies” at will. Now the data is collected robotically, often with no human judgment involved. It’s not the collecting of the data that endangers liberty, but the uncontrolled access to it. Consequently, if we devise rules to keep access under tight control, with the fullest protection of civil liberties, there is much less danger of abuse. It is certainly possible to create software that bars access to any citizen’s personal data unless the user is an authorized person and who, most importantly, states the exact reason to see it. Also, most importantly, that the search itself be recorded. After all, you cannot prevent robotic searches of the data; not in the age of terrorism. But you can require procedural notice to any citizen identified in a search, and that it not become part of any permanent record of that citizen without good reason.

It could work like this: each time a government official has reason to scan and index the data – using a kind of keyword search – an official request needs to be filed that an independent judge would review and approve before any access is granted. Until then, the government would not be able to know the content of the data in any way. While the government would know that there is a repository of our private communications in a specific place, it could not scrutinize any of it secretly. Congress should be able to codify such a system by adopting strict standards for allowing an agency to see the data, and to assure total compliance by having firewalls and safeguards embedded that could immediately cut off any unauthorized attempts to use it.


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