Peace is not the absence of conflict, it is the ability to handle conflict by peaceful means.

–Ronald Reagan

SA has been gone for a while, but with TAM 2013 rearing its head, I thought that it would be time for SA to walk in out of the gloom.  Frankly, I have been purposefully trying to ignore most of the Skeptosphere lately, with LindsayGate spawning  yet another in a long series of vile orgies of self-importance, nitwittery, and self-reverence by Skepchick and Freethought Blogs.  It makes a reasonable skeptic, one who wants to, as Ronald Reagan would have put it, “handle conflict by peaceful means,” despair.  But then I saw a couple of stories in the blogosphere today that made me want to pop my head out of the underground bunker that is Skeptical Abyss’ own personal abyss and comment to a candid world.

The first story that caught my eye was this one, published on the Skeptic Ink blog.  Apparently, a former employee of American Atheists is suing the organization for racially-based employment discrimination and wrongful termination.  I say “apparently” because I have been unable to find any reference to the lawsuit outside of the original blog post, and have not been able to see  the actual complaint that the former employee filed in New Jersey state court, nor have I been able to see the answer that AA filed, and because of this I will not refer to the employee by name.   As a (now former) human resources professional, this story caught my eye for a number of reasons.  According to the Skeptical Ink post, the employee’s court complaint started with allegations that I would describe as a claim against AA for creating (or tolerating) a hostile work-environment on account of race:

The suit alleges that [the employee] was “forced to listen to various racial jokes and was subjected to unprovoked, unwarranted, vicious and persistent verbal attacks on everything, including her competence.” It claims “unfounded complaints” against her competence and that this was in spite of excellent performance, citing “dramatically” increased donations which it was her job to solicit.

There are actually a number of claims at issue here, the most serious being that she was “forced to listen to various racial jokes.”  Racial jokes.  In the workplace.  Go ahead and set a baseline level of “dumb,” and then take a long look down from there and you will see racial jokes in the workplace.   I take no position on whether this actually happened, but from my (now former, alas) life in human resources, I don’t doubt it.  Not for a second.  You are probably thinking to yourself, “but SA, the people at AA are intelligent, progressive, modern professionals, there is just no way that they would allow something as mind-bogglingly stupid as racial jokes to be uttered in a workplace environment.”  And to that I say humbug!  I have seen smart people, educated people, people with initials after their names indicating educational attainment, say the most stupid, racist, sexist things in workplace environment.  Until you have lived in the HR bubble, you have no idea how much this goes on, everywhere, day after day.  You want to look at people you work with and say “really, you thought it was okay to say that, are you a freaking moron?”  So, just because it is AA involved, there is no reason to discount the story out of hand.  Additionally, the blog post does not indicate the individual, or individuals, who  uttered the alleged racial jokes.  They could have been non-employees (such as donors, or conference attendees) that the employee was required to interact with.  The employer can, under some circumstances, be liable for a hostile work environment caused by third parties if the employer is aware of the conduct and does not take steps to alleviate it.

The next thing is the “vicious attacks on everything, including her competence.”  To that SA says “meh.”  Under US employment law, an employee can be subjected to vicious (one assumes this is a figurative use of  the word “vicious” and that there was no actual physical violence involved) attacks at work, including attacks on one’s competence, without having grounds for a lawsuit.  It is only if such attacks are based on a legally impermissible basis (i.e. race, gender, religion, national origin, etc) that they give rise to a legitimate lawsuit.  Because New Jersey is a strict at-will employment state, even if the employee was subjected to unfair treatment, it would not be legally actionable, unless the unfair treatment was based on a discriminatory reason.

Then we get to the real meat, the allegations of wrongdoing:

The filing seeks redress for wrongful termination under a New Jersey whistle-blower protection law which applies to employees suffering retaliation for objecting to a policy or practice that they “reasonably believe is a violation of the law, or a rule or regulation promulgated, pursuant to law.” The suit alleges that [the employee] confronted [supervisor's name redacted] in June of 2012 about “what she believed to be evidence of him using organizational funds for personal trips.”

According to the law at issue:

An employer shall not take any retaliatory action against an employee because the employee either (1) discloses, or threatens to disclose to a supervisor or a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law; (2) provides information to, or testifies before, any public body conducting an investigation, hearing, or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law the employer or another employer, with whom there is a business relationship; or (3) objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes (a) is in violation of a law, or a rule or regulation promulgated pursuant to law; (b) is fraudulent or criminal; (c) is incompatible with a clear mandate of public policy concerning the public health, safety, or welfare or protection of the environment.

Without seeing the complaint, this claim seems kind of weak to me.  Certainly a fellow employee stealing from a charitable organization would be contrary to law, but unless the supervisor was beyond-the-pale stupid in using organization funds for personal use, this seems like a very difficult claim to prove.  Still, as a wise old attorney said to me when I was much younger, “the day you are served with the lawsuit is the day you lose the case.”  Those are true words.  AA will have to expend precious resources paying for the services of an employment lawyer, and that ain’t cheap.  Plus, they will get bad publicity out of this alleged act of employment discrimination.

The second story I saw today was the latest Rebecca Watson fiasco.  Apparently Becky is dissatisfied with the response that the CFI Board had to  LindsayGate, in that they did not engage in the desired full kowtow to Her Sagacity, and if you know Becky, anything other than a full kowtow is tantamount to high treason.  CFI did Becky the courtesy of inviting her to their second Women In Secularism Conference.  Predictably, Her Sagacity took offense to something someone said about something banal (the speaker was Ron Lindsay, and in my opinion he is incapable of saying anything this is not banal–as lawyers would say res ipsa loquitur).  She (or her sycophants–it is so difficult to tell them apart) called upon CFI to abruptly cashier Mr. Lindsay, or take other appropriate action equivalent to a full kowtow, or at any rate to do something that would emotionally satisfy Her Sagacity and her sycophantic followers on Skepchick.  And now she is calling for a boycott of CFI.  That’s right, you sycophants of Her Sagacity, she wants you to stop donating money, stop going to events, cancel your subscriptions to Skeptical Inquirer, the fully monty.  If it were not so predictable it would be funny.  As it is, it is little more than a bad joke.  One wonders about the competency of the CFI staffer who got the bright idea to invite Her Sagacity  to the second Women in Secularism Conference in the first place.  Remember Becky’s previous denunciation and public denouncement of DJ Grothe and the James Randi Educational Foundation because DJ failed to perform the aforementioned full kowtow to Her Sagacity?  After the JREF brought Becky to TAM year after year after year, all expenses paid? Once Becky launched her anti-JREF campaign, any organization inviting her to a conference was itching for their own denunciation and  call for a boycott with eyes wide open.  And yet CFI inexplicably invited Her Sagacity to the second annual Women In Secularism Conference.  In my opinion, CFI got exactly what it deserved from such a boneheaded move, with interest.

“What followed then was what invariably follows in the wake of every tortured consciousness.”

–Theodore Dreiser, An American Tragedy

I take no joy in writing this.  In fact, I thought long and hard about whether I should.  Whether I should respect the privacy of the individual.  Whether the wider community has a right to know.  In the end, though, it is about a public figure in the skeptical community, and not just any public figure.   It is, in fact, about a luminary.  A shining light.  A beacon that has brought many of us out from the swamps of superstition into the light of rationality and reason.  The man of whom I write is all of that (and I say this without so much of a whiff of irony), and much more.  He started one of the most popular skeptical podcasts out there, a podcast so influential that it has literally changed lives.  He was instrumental in starting an important skeptical blog.  He has even produced a couple of skeptically themed TV pilots.  And yet, he has fallen.  And because he has put himself out there as a public figure, the public should know about that fall.

I speak of Brian Dunning.    Yes, that Brian Dunning, creator of the Skeptoid  podcast, winner of the best science podcast in the Stitcher awards for 2012.  I have listened to every episode of Skeptoid, and it has made a profound impact on my life.  I like, and respect, Brian Dunning, as many of us do.  And yesterday, April 15, 2013, Brian Dunning walked into a federal courtroom in the United States District Court for the Northern District of California (San Jose) and pled guilty to wire fraud, in violation of Section 1343 of Title 18 of the United States Code.  Yes, wire fraud.  This is, without any doubt, a horrible tragedy for Brian and his family, and for the skeptical community at large.  One of our leaders has shown that he is not the man that many of us hoped that he would be.

This case has been pending for a long time.  Brian was indicted on June 24, 2010.  The docket history available on pacer.gov (publicly available, but you need to sign up for a password and give them a credit card) shows 60 separate docket entries.  There were trial dates, and continuances, and stipulations, and motions, and responses, and much more.  All leading invariably to where we are now, because once the United States Attorney indicts you, you are pretty much done.  The US Attorney, unlike state prosecutors, gets to pick and choose their cases, and they only indict people that they are sure of convicting.  Recently Brian, his lawyers, and the US Attorney worked out a plea agreement, the exact details of which are not publicly available (when I tried to retrieve a copy of the plea agreement from Pacer, I was denied access, although I can pretty much get access to any other document associated with the case).  Even though the plea agreement is not publicly available, other documents are.

On April 15, 2013, two new documents appeared in a Pacer search for Brian’s case (CASE #: 5:10-cr-00494-EJD-1), a superseding information and an arraignment document (click on the links to view the original documents in .pdf format).  The term “information” is a legal term for a charging document that does not have to go through a grand jury.  The superseding information outlines the factual allegations against Brian.

Here is the arraignment document, which shows that Brian pled guilty yesterday.  Click on the image to make it readable.

As you can see, Brian appeared in court and pled guilty to count one.  What does that mean, though?  For that, we need to review the superseding information in detail (all the facts described below come directly from the publicly available  information on file in the District Court).

According to the information, the wire fraud involved eBay’s affiliate program.   Ebay developed an affiliate program, which was a means by which eBay worked with third-party marketers to drive internet traffic towards eBay.

I will let the information speak for itself.

Background:

3.  Under eBay’s Affiliate Program, it was intended that a third-party affiliate would send visitors to eBay.com from a website associated with an affiliate, and would do so (at least in theory) by suggesting (in some way) that the visitor “click” on the “link” to eBay.com located on the affiliate’s website.  If, within specified time periods, such visitors to eBay.com became new active users, won auctions, or made Buy-it-Now purchases on eBay.com, the affiliate received compensation from eBay.  A “new active user” was defined to include a user who both set up a new eBay.com account and then placed a bid (whether it was a winning bid or not).  For purposes of this Superseding Information, the actions of becoming a new active user, winning an auction, or making a purchase are referred to collectively as “revenue actions.”

4.  The affiliate program defined the rates and amounts of compensation that eBay paid to an affiliate   These rates and amounts of compensation were based on the monthly totals of revenue actions attributable to that affiliate.  For instance, if 1 to 49 of the individuals  the affiliate referred to eBay became new active users within 30 days, eBay paid the affiliate $25.00 per new user.  As another example, if the individuals the affiliate referred to eBay won auctions for items totaling $99.99 in value within seven days, eBay paid the affiliate 50% of the revenue earned by eBay on those transactions.

The Legal Entities.  

The information describes the legal entities and the amount of money involved:

6.  The defendant Brian Dunning (“Dunning”) was an individual who resided in the Central District of California.  Kessler’s Flying Circus (“KFC”) was a partnership that was owned, in part, by Dunning.  Dunning was the sole owner of the company Thunderwood Holdings, Inc., and also did business as BrianDunning.com.  Thunderwood Holdings, together with the company Dunning Enterprise, Inc., did business as KFC.  The non-person entities are referred to collectively as “KFC.”

7.  KFC was a member of the Affiliate Program.  In 2006, KFC received approximately $2,000,000 in compensation from the eBay Affiliate Program in the United States.  Between January and June 2007, KFC earned approximately $3,300,000 in compensation from the eBay Affiliate Program in the United States.  As of approximately June 2007, KFC was the number-two producing account in the Affiliate Program. . . .

 

The Technology Behind The Scheme

8.  eBay used an automated tracking process in an effort to ensure that affiliates received appropriate compensation.  This tracking process utilized “cookies.”

10.  In the eBay Affiliate Program, when a visitor was referred to eBay.com from an affiliate website, eBay dropped a “cookie” on that user’s computer.  This cookie contained information that was used to identify the Affiliate Program member that had directed that particular user to eBay.com.  This information, which included  ”publisher ID,” referring to the affiliate, and/or a “campaign ID,”  referring to a particular program operated by the affilate, is collectively referred to as the “Affiliate ID.”

11.  If and when that user later engaged in revenue action on eBay.com, the Affiliate ID would be transmitted by the user’s computer to eBay.  An automated tracking process performed the analysis to determine whether the revenue action had occurred within the specified time frames.

How the Scheme Worked–Cookie Stuffing.

12.  If a cookie from an affiliate was present on the user’s computer at the time of the revenue action, the affiliate identified by that cookie was credited with the revenue action.  If there was not qualifying cookie on the user’s computer at the time of the revenue action, than no affiliate was credited.

18.  [T]he defendant disseminated on a large number of web pages computer code that, when those web pages were viewed by a computer user, were designed to cause that user’s computer make a request to eBay’s home page merely for the purpose of prompting eBay’s servers to serve up a cookie, which would then be “stuffed” onto the user’s computer.  These cookies contained information that identified an Affiliate ID of KFC.  In such situations, the human user never actually clicked on an eBay advertisement or link on Dunning’s affiliate websites.

19.  [I]n such situations, the computer code prevented eBay’s home page from actually “loading” on the user’s computer screen.  Accordingly, the human user never actually viewed eBay’s home page when an eBay cookie identifying KFC was stuffed onto the user’s computer.  Indeed, the human user never knew that his or her computer had made the request to the website (i.e. eBay.com) that had served up the cookie.   

20.  [T]he defendant provided free applications at two of his websites that users could download and use on their own websites: “ProfileMaps.info,” which showed the physical location of visitor to a MySpace profile, and “WhoLinked.com,” which showed who was linking to a website or blog.  Any visitor to these websites could download either of these applications.  Both applications included code that operated as follows:  when a user visited a website that had installed Profilemaps or Wholinked applications, the code would cause the user unknowingly to receive an eBay and/or CJ cookie with KFC’s Affiliate ID without the user having clicked on an eBay ad or link, without the user knowing that his or her browser had been redirected to the eBay and/or CJ affiliate tracking server and without the user seeing any content of an eBay site.  As a result, KFC would be paid if that user subsequently conducted an eBay revenue action within a certain time frame.

How the money was actually made:

21.  [T]he defendant had the expectation and intention that many of the users whose computers had cookies stuffed on them would thereafter visit eBay and engage in revenue actions.  If these revenue actions were within the time periods specified in the Affiliate Program, KFC would receive compensation from eBay with respect to these events.  The defendant had the expectation and intention that these visits to eBay.com would be of each user’s own accord, and would be separate and apart from any actions taken by the defendant to “drive” those users to eBay.com.

So, according to the superseding information, the wire fraud involved causing cookies to be installed on internet users’ computers without their knowledge.  If, by chance, those users later visited eBay and bought something, then an entity owned by Brian (at least in part) would be treated by eBay as if the entity’s website had driven the customer to eBay by means of a direct referral.  The entity owned (at least in part) by Brian would then get a commission from eBay, as if the entity’s website had actually been responsible for driving the user to eBay.  In reality, the entity’s website would not have driven the customer to eBay, and thus eBay was defrauded.  Thus, wire fraud.

The superseding information charged Brian with wire fraud, occurring between May 2006 and June 2007, and on April 15, 2013, Brian pled guilty to that charge.

Possible sentence and next step in the litigation

It is hard to estimate the actual sentence that Brian is facing, as the terms of the plea agreement are not accessible  on Pacer.gov.  The maximum sentence for a violation of 18 U.S.C. Section 1343 is up to 20 years in the Federal Bureau of Prisons.  Federal Judges, though, use sentencing guidelines to guide their decisions in imposing sentences.  I used the publicly available sentencing guideline calculator in order to figure out what Brian is looking at.  Before I reveal the results, I want to give a few disclaimers: (1) The Plea Agreement may make my calculations incorrect, because the US Attorney may have agreed to a downward departure that I do not know about, because the plea agreement is not publicly available; (2) The Plea Agreement may contain a stipulation that the amount of theft attributable to Brian is less than that stated in the superseding information; (3) I could be mistaken in my factual understanding, and thus inputted information incorrectly into the sentencing calculator.  Additionally, I believe that Brian will be statutorily eligible for a sentence to probation, but I do not see that as a reasonable possibility considering the amount of loss, but you never know.  Maybe Brian has a  really good lawyer and will get probation.

Subject to these caveats, the sentencing calculator indicated that Brian is facing a sentence of 70 to 87 months in prison, or between 5.8 years and 7.25 years.  I believe that he would be eligible for early release after serving 85% of his sentence, with time off for good behavior.

If the US Attorney were to do something like stipulate in the plea agreement that the total loss was $1,000,000, the sentencing range would change to 46-57 months.  Again, perhaps there are stipulated downward departures that could reduce it even more.

Additionally, the arraignment document says that there is an evidentiary hearing regarding loss on August 8, 2013.  Perhaps Brian’s lawyer will attempt to show that the losses to eBay were actually much less than my low-ball assumption of $1,000,000 (it would be nice to have access to the plea agreement, which might provide illumination on this point, but I do  not).  If he could get the loss down to, say $100,000, the sentencing guidelines might go as low as 24-30 months in prison.

Whatever the plea agreement says, and whatever happens at this hearing on August 8, I think it is fair to say that Brian is looking at spending a significant amount of time in a very bad place.

When someone does a podcast like Skeptoid, and they speak into our earbuds once a week, we start to think of them as a friend, even though we do no know them.  I am sure that a good many of us feel that way about Brian.  Many of us have looked up to him, and considered him a beacon of reason.  And yet, here we are.  A hero has fallen.

There I was, enjoying my factory-produced, frozen, supposedly low calorie lunch (and total disgrace to the culinary world), when I came across this news story.  Apparently an Illinois state representative, Mr. Ira Silverstein (D), has has introduced a bill called the “Internet Posting Removal Act.”  In summary, the bill would give anyone (presumably they would have to be in Illinois) the power to tell a website owner (presumably also located in Illinois) who hosted anonymous comments to either have the author of the content identify themselves by their legal name, or have the comments removed.

In other words, if certain people did not like anonymous speech, they get a choice to de-anonymize it or get it taken down.  Since anonymous speech is generally protected under US constitutional law , I would bet my Ferrari F12 Berlinetta that the bill would not survive a constitutional challenge, and even it did somehow survive constitutional challenge, it could only be applied against websites based in Illinois.  Still, it is a troubling idea.  Here is the text of the bill:
 

Here, as they say in Hollywood, is the money shot:  “A web site administrator upon request shall remove any comments posted on his or her web site by an anonymous poster unless the anonymous poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.”

Here is how it would work.  I am reading (for some reason) Freethought Blogs, and I do not like a comment to a post made  by some troll named, oh I don’t know, “RadFemFreeThinker”.  I decide that I would like to know who RadFemFreeThinker is, so I send an email over to FtB.  They then send an email to RadFemFreeThinker, asking for the commenter’s name, address, and IP address information.  Either RadFemFreeThinker complies, and her or his name is then appended to the comment, or the comment is taken down.  Either way, I (who after all do not like what RadFemFreeThinker has to say) either get their identity (in which case, were I a nefarious sort of man/woman/other, I could engage in an IRL campaign of harassment and intimidation), or I get the content taken down.  Either way, I win.  The opportunities for mischief are both numerous and obvious.

It seems to me that this bill is really aimed at anonymous commenters and whistle-blowers posting comments on Illinois newspaper and TV station websites.   Such comments often harshly criticize the very politicians who would propose and vote upon such a bill, and I can imagine that politicians such as Mr. Silverstein are none too happy when such comments are made.  So, politicians like Mr. Silverstein want to do what they can to chill anonymous speech that is critical of them.  That’s the intent, it seems to me, but in reality it would go far, far beyond that.  If you don’t like what Mr. X said on a comment on this website (the servers and administrators of which are blissfully located outside the borders of the Great State of Illinois), either get Mr. X to give up his name, or deprive everyone else from getting to read what Mr. X has to say.

Disgusting.  Unconstitutional. Despicable.

It will come as no surprise to any reader of this blog that hold freethoughtblogs.com in very low esteem.  I was very pleasantly surprised then to receive an email from the creator of a spot-on parody site of FtB and Skepchick.  It is called freethought blahgs, and it is spot-on.  I don’t know who the creator is, but they spent a lot of time an energy relentlessly parodying everything that there is to despise about FtB.  They have the smugness down.  The arrogance–100% correct.  The writing styles–I defy you to tell them apart.  And their motto, “thinkin’ so you don’t have to” is exactly the attitude thrown out by PZ, Rebecca, Greta, Stephanie, and the rest.  Of course, if you dare to think a divergent thought over on the real FtB, you get banned, like poor Thunderf00t, who had been promised freedom to write about what he wanted.

They even have a portion that perfectly parodies Thunderf00t’s former place of honor on FtB:

It is wonderful that larger and larger parts of the skeptical community are realizing the truth–FtB and Skepchicks have become a cancer on our movement.  They want to take over–that much is as clear as glass.  Many people, SA included, don’t want that to happen.  It is great to see some real thought going into calling them out.

Here is a great example of some of their work.  It is from a fake blogger called Femagouge.  The post is called:

Why conferences need sexual harassment policies dictated by bloggers

Now let me paint the best-case near-future, if secular and skeptical leaders do the right thing.

1. Feminist bloggers declare the status quo a nightmare, including the trailblazing groups and progressivist leaders. (check!)

2. Failure of any leaders to immediately acquiesce is determined to be unconscionable sexism; disagreement is unacceptable because feminists only want what is right and just and never err in choosing the correct course toward them. (double-check)

3. Fear of being called out pressures secular leaders to comply, as American Atheists has already done. (check)

4. The feminist bloggers promote/author exclusively policies with vague, over-reaching language such as proscribing “unwanted sexual advances” which could mean almost anything. We’ve already largely succeeded in getting to this point. The secular leaders are then exposed to huge new legal liabilities and take on safety responsibilities they have no means to cover, but that isn’t our problem.

5. As time goes on, we push for more and more restrictive, nebulous policies (just as we have done in the last month) which permit us more and more control over the discourse at conferences we do not run. Any resistance to these changes will be taken as overt sexism. Why else would anyone oppose feminists who are trying to make women safer?

6. The new, nebulous policies will be used to “question”, with extreme prejudice, conferences/organizations who have showed inadequate allegiance to the feminist cause. Harassment victims will be located as necessary, and based on their testimony alone, we will conclude the organizers have violated the policies we pushed them to adopt ultimately pressuring leaders to resign, and leaders we like to take their place. This will have the happy side effect of introducing a fear-based atmosphere at conferences. Harassment will markedly decline, as people become terrified of interacting with each other just the way adults are afraid to interact with kids as a result of pedophilia-paranoia. (See, proof that this CAN work)

7. We will use the leverage from harassment policies to influence other key aspects of conferences such as the topics, invited speakers, banned speakers, choice of venue, accessory recreational venues and events, and more!

This is, of course, what I have been saying for quite some time.  And yes, I love the link back to SA!  Thanks freethoughtblahgs.com,

Go check it out.  You won’t be sorry that you did.