Tag: wiretapping

The Lives of Others 2.0

Tattoo it on your forearm—or better, that of your favorite legislator—for easy reference in the next debate over wiretapping: government surveillance is a security breach—by definition and by design. The latest evidence of this comes from Germany, where there’s growing furor over a hacker group’s allegations that government-designed Trojan Horse spyware is not only insecure, but packed with functions that exceed the limits of German law:

On Saturday, the CCC (the hacker group) announced that it had been given hard drives containing “state spying software,” which had allegedly been used by German investigators to carry out surveillance of Internet communication. The organization had analyzed the software and found it to be full of defects. They also found that it transmitted information via a server located in the United States. As well as its surveillance functions, it could be used to plant files on an individual’s computer. It was also not sufficiently protected, so that third parties with the necessary technical skills could hijack the Trojan horse’s functions for their own ends. The software possibly violated German law, the organization said.

Back in 2004–2005, software designed to facilitate police wiretaps was exploited by unknown parties to intercept the communications of dozens of top political officials in Greece. And just last year, we saw an attack on Google’s e-mail system targeting Chinese dissidents, which some sources have claimed was carried out by compromising a backend interface designed for law enforcement.

Any communications architecture that is designed to facilitate outsider access to communications—for all the most noble reasons—is necessarily more vulnerable to malicious interception as a result. That’s why technologists have looked with justified skepticism on periodic calls from intelligence agencies to redesign data networks for their convenience. At least in this case, the vulnerability is limited to specific target computers on which the malware has been installed. Increasingly, governments want their spyware installed at the switches—making for a more attractive target, and more catastrophic harm in the event of a successful attack.

A Patriot Update

A few developments from a business meeting of the Senate Judiciary Committee held this morning. As I noted last month the new House Intelligence Chair, Rep. Mike Rogers (R-Mich.) has already introduced another one-year straight renewal without modification. Since then, Sen. Pat Leahy (D-Vt.) has introduced a bill that would renew the expiring Patriot Act surveillance provisions through 2013, but with some very basic additional safeguards and oversight requirements—many of which the Justice Department has already agreed to implement voluntarily—including most crucially added constraints and a new sunset for expanded National Security Letter powers, which have already been held at least partly unconstitutional in their current form by federal courts, and which the government’s own watchdogs have already found to be subject to widespread abuse.

Enter Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, who played a key role in killing the same mild reforms last year. She’s already introduced legislation of her own, which would provide for an extension through the end of 2013, without any modifications, of not only the provisions set to expire this year, but also the highly troubling FISA Amendments Act, which in effect legalized the Bush administration’s illicit programmatic wiretapping with an added sliver of judicial oversight. Even this was not quite enough for Sen. Chuck Grassley (R-Iowa), who announced he would introduce a bill making the expiring provisions permanent—effectively removing an important impetus to continuing oversight.

Feinstein, interestingly, purported to be theoretically supportive of Leahy’s reformist impulses, but argued that the “time crunch” created by the end-of-February sunset deadline makes this the wrong time to consider reforms. (In order to hurry things up, a Hill contact tells me, Feinstein’s bill will be fast-tracked to the floor under Senate Rule 14, circumventing the committee process.) This really makes very little sense. Leahy’s bill is essentially the same proposal reported out favorably by a bipartisan Judiciary Committee majority; the point of doing a one-year reauthorization in 2010 was supposedly to allow Congress to consider reform alternatives in the interim. Moreover, the Justice Department has already effectively agreed to accept the reforms that bill contains. If there’s nevertheless a need for further deliberation, Congress can do exactly what it did last time around and extend the sunset by a few weeks or months to allow for additional debate.

The time constraints here are wholly of Congress’ own making. And while the Leahy bill doesn’t go far enough by any means, there is just no good excuse to delay at least the beginning of needed reforms any further.

Cops on Camera

The past six months have given us a number of police excesses caught on camera. Police officers savagely beat University of Maryland student John McKenna and filed false felony assault charges against him. Video of the event set the record straight. Prosecutors dropped the charges against McKenna, and four officers have been suspended and are facing state and federal investigations.

The McKenna case showed the value of video as an honest witness. Yet Maryland police officers continue to make the claim that the state wiretapping law forbids recording in public. I discuss this issue in a new Cato video, Cops on Camera, along with attorney Clark Neily of the Institute for Justice and Cato adjunct scholar Radley Balko.

We are hosting an event next Wednesday, September 22, on the right of citizens to record on-duty police, and the prosecutor in the high-profile Maryland wiretapping case against Anthony Graber will be on the panel. Registration available here.

A Surveillance State Coda

The program of warrantless NSA wiretapping (and data mining) authorized by President George W. Bush shortly after the 9/11 attacks prompted a flurry of intense debate over its legality when it was disclosed by The New York Times back in 2005. Those arguments have, by now, been so thoroughly rehearsed that there’s not a whole lot new to say about it.

But like Monty Python’s Black Knight, some of those old arguments keep popping up — as evidenced by John Eastman’s contribution to the Cato Unbound roundtable on the digital surveillance state we held last month. So while the roundtable’s over, I thought it would be convenient to round up a compact version of the main arguments in one place, for the convenience of folks who might not want to slog through the many law review articles that have been written on the subject.

The touchstone for modern analysis of executive war powers is, by general consensus, the tripartite schema elaborated by Justice Jackson in his concurrence in the Youngstown steel seizure case :

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power…

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain…

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter… Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Using this as our starting point, it becomes clear that an analysis of the NSA program entails answering a series of distinct (though related) questions. First, we need to determine which level of the Youngstown schema applies. If we’re in Youngstown’s Category I, then the NSA program was illegal only if it exceeded the constitutional constraints on government surveillance established by the Fourth Amendment. If, on the other hand, we’re in Category III, a constitutionally permissible surveillance program might nevertheless be illegal. So I’ll consider three questions in turn: Did the NSA program violate federal statute? If so, does the statute trump whatever inherent power the president might enjoy as commander in chief in this context? Finally, does the program, as it’s been publicly described, violate the Fourth Amendment? An affirmative answer to either the first pair of questions or the third will entail that the NSA program was illegal.

The AUMF

The statutory question may seem like something of a no-brainer: The Foreign Intelligence Surveillance Act of 1978 states explicitly that its procedures establish the “exclusive means” for domestic electronic surveillance for foreign intelligence purposes. In this case, the obvious answer is the right one. But the Justice Department has attempted to claim that Congress cleverly managed to repeal the “exclusive means” language without telling anyone about it back in 2001, when it passed the Authorization for the Use of Military Force against the perpetrators of the 9/11 attacks. Probably the most decisive demolition of that argument was offered by David Kris, who currently heads the National Security Division at the Department of Justice, but it’s worth reviewing briefly why this argument is so implausible.

The central problem with reliance on the AUMF is that FISA itself contains a provision providing a 15-day surveillance grace period following a declaration of war. As the legislative conference report explains, this was intended to provide time for Congress to consider whether any wartime modifications to the FISA structure were necessary. Plainly, then, Congress did not imagine or intend that a declaration of war (or “authorization of force”) would in itself implicitly loosen FISA’s fetters beyond that grace period.

Moreover, Congress has repeatedly amended FISA since the 9/11 attacks, both in the PATRIOT Act passed almost simultaneously with the AUMF, and in subsequent legislation over a period of years. As Glenn Greenwald recounted in his lead essay for the Cato roundtable, Congress has expanded government surveillance powers in a variety of ways, but none of these prior to the Protect America Act of 2007 (superseded by the FISA Amendments Act of 2008) approached the breadth of the NSA program, and even these establish at least a modicum of judicial oversight, however inadequate. Again, this history sits uneasily with the premise that Congress understood itself to have authorized such broad domestic surveillance when it passed the AUMF.

Indeed, as former Senate Majority Leader Tom Daschle explained in a Washington Post op-ed shortly after the revelation of the warrantless wiretap program, the Senate explicitly rejected language sought by the White House that would have extended the authorization to actions within the United States. Then–attorney general Alberto Gonzales has publicly acknowledged that the Bush administration contemplated asking for a more specific amendment to FISA authorizing something like the NSA program, but concluded that it would be “difficult, if not impossible” to get such an amendment adopted. We are being asked to believe, in other words, that Congress intended to implicitly grant authority that the administration was certain would be refused had it been requested overtly. It is, as Justice Frankfurter put it in Youngstown, “quite impossible … to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld.”

Basic principles of statutory construction disfavor inferring implicit repeal of specific statutory language from more general authorizations, except in the face of “overwhelming evidence” of congressional intent — and the Court has accordingly rejected parallel arguments in several recent War on Terror cases, as in Hamdan v. Rumsfeld, where the court found “nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization” for military commissions spelled out in the Uniform Code of Military Justice.

The evidence here is indeed overwhelming, and it uniformly cuts against the fanciful proposition that Congress somehow enacted a kind of sub silentio repeal of FISA. I’m inclined to assume this argument was offered primarily because of an understandable reluctance to rely entirely on a radical theory of inherent and preclusive executive powers, to which I turn next.

The President’s Inherent Authority

The first thing to observe with respect to claims of inherent executive authority is that if we exclude non-binding dicta, the evidence for a constitutional power to conduct warrantless domestic surveillance for foreign intelligence purposes is almost wholly negative. That is to say, it turns on inferences from questions the Supreme Court has declined to directly address rather than on its affirmative holdings. As we’ll see, this is a thin reed on which to hang ambitious claims.

Consider, for instance, the so-called Keith case. In addressing the scope of presidential power to authorize warrantless surveillance against domestic national security threats, the majority noted that they had “not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” But in that very case, the unanimous majority held that a warrant was required in cases involving domestic national security threats, resolving a lacuna expressed in very similar language in a footnote to a previous ruling involving wiretaps:

Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

The arguments deployed against unchecked executive discretion in Keith clearly have substantial cross-application to the War on Terror, which in many respects bears as much resemblance to those domestic threats as it does to traditional nation state–sponsored espionage and warfare. It will suffice to note, however, that declining to foreclose a power because the fact pattern under consideration provided no occasion to consider the distinct issues involved, as the Court did in both Katz and Keith, is not at all the same as affirmatively asserting it, let alone defining its scope — a point to which I’ll return in the next section.

Nevertheless, let’s suppose arguendo that there is some such inherent power, whether broad or narrow. Eastman and other defenders of the NSA program still err in conflating inherent power with preclusive or indefeasible power. As a simple conceptual matter, this cannot be right, or else the third Youngstown category would collapse into the second: If all “inherent” presidential powers were per se immune to Congressional limitation, Category III would be superfluous, since it would never yield a result different from analysis under Category II.

Fortunately, we need not restrict ourselves to conceptual analysis, because precedent and practice both speak directly to the question, and both support robust legislative power to constrain even those presidential powers grounded in Article II. The legislature has, from the founding era on, assumed that its Article I power to make “rules for the government of the land and naval forces” enabled it to cabin the discretion of the commander in chief, often in frankly picayune ways, by establishing general rules limiting the conduct of a conflict. Prior to the Truman administration there was little indication that presidents saw this as encroaching upon sacrosanct executive prerogatives. Even Lincoln — probably the most obvious early example of a wartime president acting without or contrary to statutory authority — did not claim some general constitutional power to defy Congress. Rather, he argued that when hostilities commenced during a congressional recess, he had acted as he thought necessary given the impracticality of securing advance approval, while acknowledging that it fell to the legislature to ratify or overrule his judgment once it reconvened.

In the few cases where the Supreme Court has had occasion to rule on the scope of executive power at “lowest ebb,” it has repeatedly confirmed that federal law binds the president even in war. In Little v. Barreme, during a conflict with France, the Court found that a specific congressional authorization for the seizure of ships bound to French ports rendered invalid an executive order that also permitted seizure of ships bound from those ports. And this was so, the Court noted, even though the president’s own commander-in-chief powers would have permitted him this discretion had Congress not spoken. Since the inauguration of the War on Terror, the Court has reaffirmed the validity of such statutory limits on executive discretion, as in Hamdan. Bush’s own Office of Legal Counsel ultimately repudiated a series of memos, penned by John Yoo, that had relied on a more expansive conception of executive power to justify the administration’s War on Terror programs, concluding that they were “not supported by convincing reasoning.”

There is, by general consensus, some “preclusive core” to the executive’s commander-in-chief authority. This includes, at the least, a prerogative of “superintendence”: Congress could not appoint Nancy Pelosi commander of U.S. forces in Afghanistan and forbid the president to remove her. Most commentators see it as similarly foreclosing efforts to achieve the same end by a series of micromanagerial statutes commanding specific tactics be employed at particular times. But the notion that this preclusive core encompasses discretion to unilaterally disregard a general statutory framework governing protracted electronic surveillance of U.S. persons on American soil is simply insupportable in the face of both history and precedent. The argument is, if anything, more absurd when it comes to the government’s illegal acquisition of the statutorily protected calling records of tens of millions of Americans, the vast majority of whom obviously have no ties to terrorism or Al Qaeda. Attempts to stitch together a countervailing line from desultory snatches of language about the president’s role as “sole organ” in foreign affairs are entertaining as a sort of exercise in experimental Burroughsian cut-up narrative, but as legal analysis they seem pretty desperate.

The Fourth Amendment

Finally, we turn to the Fourth Amendment. I will, for the most part, consider how the Fourth Amendment applies to the NSA surveillance program prior to the 2008 passage of the FISA Amendments Act.

As Eastman notes, while in most contexts the prohibition on “unreasonable searches and seizures” requires surveillance to be authorized by a probable cause warrant based on individualized suspicion, there are a variety of circumstances in which warrantless searches may nevertheless be reasonable. While this is not the place to conduct a detailed survey of such “special needs” exemptions, such exceptions tend to involve cases in which the subjects of the search are already understood to enjoy a diminished expectation of privacy (students in school), where the searches are standardized and minimally intrusive, where the targets are in a position to raise challenges before a neutral magistrate if necessary, and where prior court authorization would be highly impractical. No exception that I am aware of can plausibly be stretched so far as to permit sustained, discretionary, warrantless electronic surveillance of members of the general population — a method recognized to be so intrusive that in the criminal context, federal statute requires investigators to meet a higher standard than applies to ordinary physical search warrants.

It’s worth noting in passing that the existence of the statutory FISA framework is at least arguably relevant to the Fourth Amendment analysis here. What measures are “reasonable” will often depend on context, and upon the available alternatives: The use of lethal force in self-defense might be found reasonable as a last resort, but not when the victim has an easy avenue of escape or a taser handy. Similarly, if the only alternative to conventional criminal courts were warrantless surveillance — if Congress had made no provision for a highly secretive court to consider classified applications under secure conditions, with ample flexibility in cases of emergency — one might be more inclined to sympathize with some degree of executive improvisation. In light of the elaborate mechanisms Congress has provided, an appeal to impracticality is considerably less compelling.

But let’s bracket that for the moment, and again suppose for the sake of argument that the president has some inherent authority to conduct warrantless domestic wartime surveillance. Let’s further assume away any statutory problems. Can the NSA program be squared with the Fourth Amendment injunction that searches be reasonable, based on what little we know of it? It seems highly unlikely.

Multiple accounts suggest that the NSA program involved algorithmic selection of surveillance targets, possibly triggered by keywords within the communications themselves, almost certainly based on pattern analysis of calling records or other transactional data. The result, according to the Bush administration, was that the international communications of approximately 500 persons within the United States were being intercepted at any given time. Since the program operated for several years, both before and after being disclosed, a conservative estimate would place the total number of persons subject to surveillance in the thousands, and most likely in the tens of thousands.

What did all this spying yield? In 2006, under the headline “Surveillance Net Yields Few Suspects,” the Washington Post reported:

Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well.

Nearly all the “leads” produced by the program appear to have been dead ends. Indeed, despite the assurances of the Bush administration that the NSA program had saved thousands of lives, a postmortem review by the intelligence community’s inspectors general found that officials they spoke to “had difficulty citing specific instances where [NSA program] reporting had directly contributed to counterterrorism successes,” though a classified version of the report apparently cites a handful of instances in which the program “may have contributed.”

As a point of reference, the government’s reporting suggests that under criminal wiretap orders, about 30 percent of intercepted communications contain incriminating content. Since “minimization” of innocent communications is necessarily imperfect, and since even the most hardened criminals presumably spend most of their time conversing about more mundane matters, the number of targets engaged in at least some incriminating communication is clearly far higher. That’s what one would expect when evidence establishing “probable cause” must justify surveillance — and Bush officials have claimed the NSA program’s targeting met the same standards. The evidence suggests otherwise.

I’m happy to grant that we should accept a somewhat lower “hit rate” when interception is geared toward protecting the nation from major terror attacks. But if the requirement that searches be “reasonable” is not to be rendered completely vacuous or totally severed from even a diluted standard of “probable cause,” then there must be some substantive test of whether such highly intrusive techniques are actually in service of that vital state interest. It cannot possibly be enough to simply observe that the president has uttered the magical incantation “War on Terror.” And it cannot possibly be enough that a program involving interception of the private conversations of thousands or tens of thousands of U.S. persons “may have contributed” to a handful of successful investigations. The question is closer with respect to post-FISAAA programs of interception, which are at least subject to some modicum of independent oversight, but unless we have gotten vastly better at sifting the guilty from the innocent, grave constitutional doubts should remain.

Maryland Attorney General Sides with Anthony Graber

You may remember the case of Anthony Graber, the Maryland motorcyclist charged with violating the state’s wiretapping statute for recording his traffic stop and posting it on YouTube. I’ve said several times over the last few months that these charges are based on a misreading of the law; minus a “reasonable expectation of privacy,” recording an oral communication does not violate the wiretapping statute.

As it turns out, the Maryland Attorney General agrees.

The Maryland Attorney General has released an opinion advising a state legislator that, contrary to the claims of Harford County State’s Attorney Joseph Cassilly, a traffic stop is probably not an instance where a police officer can claim a reasonable expectation of privacy.

The AG’s opinion provides a thorough survey of Maryland’s and other states’ decisions on the issue, giving three possible interpretations of the wiretap statute as applied to a citizen recording a traffic stop.

First, a court might agree with the theory that police encounters are private conversations, but the AG found that this “seems an unlikely conclusion … particularly when they occur in a public place and involve the exercise of police powers.” That sounds familiar.

Second, a court might conclude that the Maryland statute forbids only the surreptitious recording of a police stop. The opinion deems this an unlikely outcome due to differences between the language of the Maryland law and the wiretapping statutes of Massachusetts and Illinois.

The opinion settles on its third possible outcome, agreeing with what I, Radley Balko, Carlos Miller, the Maryland ACLU, the Maryland courts, other Maryland State’s Attorneys, and the Maryland Attorney General’s previous opinions have said: the Maryland wiretap statute does not permit the prosecution of citizens for recording the actions of public officials in public places.

Graber’s court date is set for October. The AG’s opinion should halt his prosecution and further abuse of the Maryland wiretap statute.

Collateral Murder, Indeed

I finally found the time to go through the WikiLeaks’ Afghan War Diary entries containing accounts of my 2004 tour in Afghanistan (my third tour; appropriate bio and disclaimer can be found here).

I am underwhelmed. I am not sure what Julian Assange thought the release of these documents would tell people about the war in Afghanistan, beyond the fact that people are shooting at each other and that, generally speaking, war is Hell. If I identified the entries associated with my service in Afghanistan, you would read summaries of the firefights and rocket attacks that my unit faced, with metrics of rounds fired and received and associated casualties.

Parallel to Noah Schachtman’s excellent write-up contrasting his experiences while embedded with Marines in Helmand Province versus what WikiLeaks provides, you would have little visibility on the actual maneuver of troops, the relationship that they have with the populace, and the effectiveness of Afghan forces. Reading WikiLeaks alone would give you a picture of the Afghan War that falls short of what you can get from normal press outlets.

This skewed portrait of our policy comes at no small price. The identification of our intelligence contacts and sources is sure to put their lives in danger, as Steve Coll and (more importantly) Taliban spokesmen point out.

Unfortunately, Assange has taken Afghan War policy as an acceptable loss as well, no matter how you define it. Whether you support a COIN-centric approach, a reduced footprint in Afghanistan, a counterterrorism model, or even letting the CIA run the war, this is a disaster. This release of information is actually more damaging to downsizing strategies, since we will end up leaning on tribal alliances and intelligence assets more, not less.

Assange is facilitating the deaths of our intelligence contacts because he believes that the benefits outweigh the cost of their lives. That’s mighty rich, coming from a guy who labeled a 2007 case of mistaken identity in Iraq that resulted in the death of civilians as “collateral murder.” In that case, helicopter pilots misidentified a reporter’s zoom lens as the tail end of an RPG launcher, but armed men were in the reporters’ entourage that may have independently met the criteria for using force under the rules of engagement.

That’s (possibly) a mistake in the distinction of combatants, not an intentional approval of the loss of innocent life that is deemed acceptable in proportion to the direct military advantage anticipated. The latter is the definition of collateral damage, and Assange seems to have no problem with asserting his moral judgment in this realm.

Collateral murder, indeed.

Cops and Cameras: The Future of Policing

The USA Today editorial board is criticizing the use of state wiretapping laws to prosecute citizens who tape on-duty police officers. I have written on this extensively: here, here, here and here. The editorial joins the Washington Examiner and Washington Post in this critique.

USA Today’s opposing view (presented by two AFL-CIO police union officials) provides this comment:

In today’s environment, police officers have to assume that every action they take is captured on tape, somewhere. They must be comfortable that everything they say or do in the course of their duties may be shown on the 5 o’clock news.

Our problem is not so much with the videotaping as it is with the inability of those with no understanding of police work to clearly and objectively interpret what they see. Videotapes frequently do not show what occurred before or after the camera was on, and the viewer has no idea what may have triggered the incident or what transpired afterwards.

This is often true. The recordings that prompt public outcry are sometimes “gotcha” moments where the camera only captures the use of force with no context.

Here is an example from Maryland that shows officers arresting a woman during the Preakness Stakes. At the end of the video, an officer says to the person recording the arrest: “Do me a favor and turn that off. It’s illegal to videotape anybody’s voice or anything else, against the law in the state of Maryland.”

As the USA Today editorial notes, this is a misreading of Maryland law that is kept alive by the prosecution of Anthony Graber and others who record the police. My commentary on the issue is here. As Carlos Miller points out, Maryland prosecutors come to different conclusions about the scope of the state’s wiretap law.

The real problem (besides the fact that the officer is misstating the law to prevent public accountability) is that the officer felt it necessary to stop the filming in the first place. This arrest was justified. The woman bleeding on the floor assaulted another patron, and when two officers responded to the incident, she assaulted them as well. This was a justified and necessary arrest. Whether the level of force was justified is another question, and one that is harder to assess because there is no recording of it.

Here is the solution – officers recording the incidents:

A handful of police departments already have their officers wearing video and audio recording devices. While I said a while ago that gun-mounted cameras are a good tool for police transparency and accountability, this head-mounted camera is a better option. It captures the prelude to the use of force, and doesn’t provide an incentive for the officer to draw his or her weapon sooner to get the event on film.

This is the future of American law enforcement. Departments will embrace this technology because it is a defensive measure against public outcry over the next “gotcha” video filmed with a cell phone and potential lawsuits. Law enforcement agencies will release their own footage of high-publicity events to show that their officers were complying with department guidelines on the use of force. The presence of a camera in an interaction between a cop and a citizen may also serve to keep behavior more civil since both parties know that the world is watching.

In 10 or 15 years, this technology will be ubiquitous just as police cruiser dashboard cameras are now, and law enforcement officers and the public will be better off for it.