Tag Archives: ethics

Negotiated Penalties

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I’m not going to pick on Boeing, but I am going to describe that company’s alleged wrong-doing in a particular case as a canonical example of a principle.

Boeing stands accused by the FAA of

install[ing] defective parts inside the wings of around 130 737NG aircraft and then knowingly vouch[ing that] they met all federal safety requirements.

In consequence, the FAA has proposed a $3.9 million penalty.  As if Boeing should have a say in the penalty it chooses to pay.  This is nonsense.

There should be no proposals, no entertainments of counterproposals from the accused, no time wasted on discussions.  If the FAA thinks it has a case it can make in court, it should make its case in court and apply the court’s penalty.  If the FAA doesn’t think it has a case it can make in court, it has no legitimate case at all, and it should walk away.

So it should be with SEC-“negotiated” penalties for alleged wrong-doings, for EPA “cases,” for any government agency with a beef to bring.

Some might argue that this is little different from a prosecutor offering a plea deal to an accused criminal. Those folks would be right—and it’s wrong there, too.

Others might argue that such affairs are efficient ways to correct bad corporate behavior, that matters can be settled faster this way than through court trials.  Not in the long run, though, and not broadly.  Such “settlements” are binding only on the agency and the company it has “penalized,” and the allegedly misbehaving company too often later repeats the assessed behavior or something similar.

Court outcomes, on the other hand, bind everyone in the court’s jurisdiction (nationally, in those cases that wind up at the Supreme Court).

Furthermore, too often in these business accusations and settlements, the settlement results in the company making no admission of wrong-doing.  In accepting such an outcome, the agency demonstrates that it had no case to bring in the first place; it merely browbeat some vig for the agency by using its vastly superior Government power and breadth of resources.

These “settlements” are conveniences to the government, to be sure, but Government’s convenience is no basis for obtaining justice.  All that’s obtained from such outcomes is…Government convenience.

Streamlining Negotiations

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DoJ says it wants to “streamline” negotiations over the size of penalties misbehaving white collar employees should pay.

Assistant Attorney General Brian Benczkowski, the head of the department’s criminal division—which overseas various white-collar criminal investigations—said the DOJ has sought to reduce the time it takes to negotiate resolutions by grounding proposed fines in US sentencing guidelines and other objective criteria.

Here’s a thought on how to streamline those negotiations.

Stop negotiating.  Make a plea offer (rarely, these too often get used to extort guilty pleas of any sort), and if the white collar declines—no back and forth—go to criminal trial.  Better, if DoJ thinks it has an actual case, go straight to criminal trial.

If DoJ doesn’t think it can make its case in front of a criminal court jury, then DoJ doesn’t have a case to make. Leave the white collar the hell alone.

Seller’s Remorse

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Not because they mistakenly sold, though, rather because they’re being blocked from selling. The People’s Republic of China’s telecom company Huawei is suing over an FCC ruling that prevents American rural wireless telecom companies from using Federal dollars to buy Huawei equipment.

Huawei executives have long hung their hats on this bit as their primary reason for being allowed into our national communications networks:

Huawei has long said that it is owned by its employees, operates independently of Beijing and would never spy on behalf of any government.

Nothing could be farther from the truth.  PRC law requires government-run or -owned and private companies to cooperate in every respect with the PRC government—including government-demanded surveillance.  Even trusting to the sincerity of Huawei executives, they’ll spy if their government tells them to.  They have no choice.

Beyond that, it would be the height of foolishness for us to trust our national security to the good offices of foreign executives and to a foreign government that controls them.  Especially when that foreign government is, at best, a competitor of ours and, more likely, an enemy.

Especially when that foreign government has a history—long and venerable—of hacking our government and our private computers, stealing personal data of our government and military personnel, stealing our negotiation, policy, and military secrets, stealing the proprietary data of our private enterprises.

Especially when that company has been found to have multiple backdoors and other weaknesses in its software, waiting to be exploited.

A proximate example of Huawei’s sincerity is their claim, made by Song Liuping, Chief Legal Officer for Huawei, in the company’s FCC suit:

The FCC should not shut down joint efforts to connect rural communities in the US[.]

This is just straight-up dishonest. Neither the FCC, nor any other Federal entity, is blocking any joint efforts to connect our rural communities.  The only matter here is that Huawei is restricted in its efforts to join in those connections.  Indeed, the only restriction on Huawei in this case is that the company may not use Federal dollars—American citizens’ dollars—to join the connection efforts.

Short and Sweet

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I watched the Nadler burlesque show that’s masquerading as the House Judiciary Committee impeachment hearing yesterday so you didn’t have to.  Here is the short and sweet of it.

The three Progressive-Democrat law professor witnesses each opened their opening statements by saying President Donald Trump was guilty and should be impeached even before they knew the impeachment charges being preferred.  They couldn’t know the charges because the Judiciary Committee has not written the articles of impeachment. Indeed, the committee chairman, Jerry Nadler (D, NY) has refused—and he refused repeatedly during yesterday’s show—even to say when the next hearing would be held or what witnesses would be called.

Those three Progressive-Democrat law professor witnesses went further: they pronounced their guilty verdicts even before they expressed their opinions of what might constitute an impeachable offense.

Like any burlesque show, we know how this will end because the script and choreography have long been written.

Surveillance

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It turns out the People’s Republic of China government is a collection of pikers compared to Russia’s Vladimir Putin.

Russian President Vladimir Putin signed a pair of bills Monday, one of which will require all consumer electronic devices sold in the country to be pre-installed with Russian software, while the other will register individual journalists as foreign agents.

Government spyware pre-installed on Russian citizens’ devices, so Russia’s modern-day KGB successor can track where Russian citizens are, with whom they’re communicating, what they’re doing, down to the last detail.

Government spyware that will not only identify who is a journalist (Russia’s definition of “journalist”), but register them as foreign agents—right alongside diplomats, diplomat staff, foreign-declared agents of a diplomat staff, but without any of the protections of those diplomats and staffs.

PRC President Xi Jinping seems yet to have lots to learn from the Russians.