February 2013 | Hillman Foundation

Clear It With Sidney

Notes on journalism for the common good, by Lindsay Beyerstein

February 2013

Remembering Alan F. Westin: Privacy Pioneer, Hillman Prize-winner

Alan F. Westin, the father of modern privacy law, died this week in New Jersey at the age of 83:

Through his work — notably his book “Privacy and Freedom,” published in 1967 and still a canonical text — Mr. Westin was considered to have created, almost single-handedly, the modern field of privacy law. He testified frequently on the subject before Congress, spoke about it on television and radio and wrote about it for newspapers and magazines.

“He was the most important scholar of privacy since Louis Brandeis,” Jeffrey Rosen, a professor of law at George Washington University and the legal affairs editor of The New Republic, said in a telephone interview on Thursday. “He transformed the privacy debate by defining privacy as the ability to control how much about ourselves we reveal to others.” [NYT]

“Privacy and Freedom” won a Hillman Prize in 1967.

Sex Assaults in the Shadow of a North Dakota Oil Boom

Thanks to a 1978 Supreme Court decision, non-Indians who rape on Indian reservations operate with near impunity, Sierra Crane-Murdoch reports:

In 1978, the Supreme Court case Oliphant v. Suquamish stripped tribes of the right to arrest and prosecute non-Indians who commit crimes on Indian land. If both victim and perpetrator are non-Indian, a county or state officer must make the arrest. If the perpetrator is non-Indian and the victim an enrolled member, only a federally certified agent has that right. If the opposite is true, a tribal officer can make the arrest, but the case still goes to federal court.

Even if both parties are tribal members, a U.S. attorney often assumes the case, since tribal courts lack the authority to sentence defendants to more than three years in prison. The harshest enforcement tool a tribal officer can legally wield over a non-Indian is a traffic ticket.

The result has been a jurisdictional tangle that often makes prosecuting crimes committed in Indian Country prohibitively difficult. In 2011, the U.S. Justice Department did not prosecute 65 percent of rape cases reported on reservations. According to department records, one in three Native American women are raped during their lifetimes—two-and-a-half times the likelihood for an average American woman—and in 86 percent of these cases, the assailant is non-Indian.

Indian tribes have their police forces who could be making arrests, were it not for the legal shackles imposed upon them by the court’s decision. The Senate inserted language into the Violence Against Women Act that would have allowed tribal courts to prosecute non-Indians who commit crimes on reservations, but the House Republicans opposed the measure.

Sine 2008, outsiders have been streaming to rural North Dakota to get a piece of the Bakken Shale Oil Boom, and the Fort Berthold reservation is at its epicenter. Federal prosecutors have received additional resources to deal with criminal complaints on the reservation. Case filings on North Dakota reservations rose 70% between 2009 and 2011. The rise crime reporting tracks the influx of non-Indians to the oil patch. The reservation’s population has more than doubled, and the tribal police have little legal control over the new residents. For local women, the newfound prosperity represents an ongoing threat to their safety.

[Photo credit: Hansen.Berlin, Creative Commons.]

Canadian Hillman Prize Finalists Announced

Suspense mounts as the field for the 2013 Canadian Hillman Prize narrows to just three finalists:

  • Katie DeRosa of the Times Colonist for her multi-part investigation of Canada’s refugee policy.
  • Glen McGregor and Stephen Maher of the Ottawa Citizen for their two-part probe of robo-calls and voter suppression during Canada’s 2011 federal election.
  • Elise Stolte of the Edmonton Journal for her two-part feature on high truancy and drop-out rates among First Nations children.

The final decision rests with our distinguished panel of judges: economist Jim Stanford, writer and broadcaster Bronwyn Drainie, and political strategist Brian Topp.

The winner will be announced on March 18.


[Photo credit: Gord McKenna, Creative Commons.]

#Sidney's Picks: The Wage Theft Epidemic, "Behind the Kitchen Door," and How Charter Schools Stack the Deck

  • In These Times explores the wage-theft epidemic gripping America.
  • Behind the Kitchen Door, a new book by Saru Jayaraman, chronicles the lives of low-wage restaurant workers and exposes the dirty kitchens, unsafe working conditions, and exploited workers behind the so-called sustainable food movement.
  • Charter schools are privately-run public schools that promise to serve all students, but these institutions often impose such onerous application requirements that only elite students can hope to be admitted.
  • Why did the BBC spike an expose of Jimmy Saville, a beloved TV presenter with a penchant for pedophilia?

 [Photo credit: Wander Mule, Creative Commons.]

Rembember the Battle for Wisconsin: 3-11-13

The makers of the new documentary, We Are Wisconsin, have declared March 11, 2013 as a national day of recommitment to the struggle for workers’ rights. The date, aka 3-11-13, marks the second anniversary of Gov. Scott Walker signing into law the union-busting Act 10, stripping public employees of their right to bargain collectively.

The filmmakers will mark the occasion with public screenings of the documentary, a town hall meeting in Madison to be broadcast live, and a social media campaign under the hashtag #31113. Watch the We Are Wisconsin trailer, above. If you would like to host a private screening of the film on 31113, click here to sign up for your free DVD.

Tuskegee 2.0? Indian Women in U.S.-Funded Trials Not Screened for Cervical Cancer

Bob Ortega, our February Sidney Award-winner for his expose of a faulty HPV test, has another blockbuster story on women’s health.

U.S.-funded researchers testing a low-tech alternative to pap smears followed thousands of poor Indian woman to see if they developed cervical cancer, but they didn’t screen them to catch the disease early, they just waited to see if they’d get sick:

For more than 12 years, as part of two massive U.S-funded studies in India, researchers tracked a large group of women for cervical cancer but didn’t screen them, instead monitoring them as their cancers progressed. At least 79 of the women died.

One study, funded by the National Cancer Institute, did not adequately inform more than 76,000 women taking part about their alternatives for getting cervical-cancer screening; and those women did not give adequate informed consent, according to the Office of Human Research Protection, part of the U.S. Department of Health and Human Services.

The other study, funded by the Gates Foundation, is under review by the Food and Drug Administration, according to Kristina Borror, the OHRP’s director of compliance oversight. That study has raised similar concerns regarding 31,000 women who were tracked but not routinely screened or treated for cervical cancer.

Both studies continue today, though researchers for both told The Arizona Republic they have begun to offer screening to the women. [AR]

The subjects were uneducated women from the slums of Mumbai. The study was designed to determine whether diluted vinegar douches are an effective, low-tech screening test for cervical cancer. Abnormal tissue turns white in response to the acid.

Basically, women in the experimental groups got the test. Women in the control groups were told they could get HPV screening on their own, but they weren’t screened. Health care workers visited them to ask if they’d developed any symptoms of cervical cancer. Note that cervical cancer doesn’t usually cause symptoms until the disease is far advanced. The more advanced the cancer, the worse the patient’s odds of survival.

By 2009, the researchers had reason to believe the test was working. The vinegar seemed to be revealing abnormal cells, but the researchers felt they needed to keep the study going to show a statistically significant difference in cervical cancer rates between the experimental and control groups.

In 2011, an oversight body found that the National Cancer Institute-funded study had not obtained proper informed consent from their subjects and had not educated them properly about how to seek screening on their own. The researchers argued that the control group subjects were no worse off than they would have been if they hadn’t participated in the trial because most poor women in Mumbai don’t get cervical cancer screenings anyway.

It’s irrelevant whether the women in the control groups were worse off than they would have been. Control groups of this type were probably unnecessary in the first place. Cervical cancer researchers in many other developing countries reject the unscreened control group design. They have other ways to measure the efficacy of their tests.

At this point, the medical consensus is that any reliable form of cervical cancer screening is better than nothing. If the vinegar test accurately identifies cancers that would have otherwise gone unnoticed until much later, that’s proof that it works better than no screening. We don’t have to wait for unscreened women to get sick and die to prove the point.

A cancer screening trial with an unscreened control arm would never be allowed in the United States. Ortega quotes researchers who attempt to justify their laissez-faire approach by claiming that Western principles of research ethics, like informed consent, don’t apply to women in the slums of Mumbai. No doubt it’s more difficult to obtain informed consent for medical care from subjects who have little formal education, but that doesn’t imply that it’s any less important. Ortega’s reporting shows that the researchers didn’t even do the bare minimum.

It’s a twisted logic that says it’s okay to treat someone worse because they’re already so badly off.

[Photo credit: A slide from an HPV test, euthman, Creative Commons.]

#Sidney's Picks: Cablevision Mass Firings; FreedomWorks' Faux Clinton/Panda Sex Tape; and the Calorie Detective

  • It takes a special kind of scumbag boss to keep workers waiting for 40 minutes when they took advantage of his “open door policy” to ask about their union, and then fire them for not working. That’s what Cablevision VP Rick Levesque did to workers in Canarsie.  
  • New York chain restaurants are required to post calorie counts, but the authorities don’t check for accuracy. Filmmaker Casey Neistat puts their claims to the test.

"I Don't Care What You Want": Brooklyn Cablevision Workers Fired for Pressing VP on Union


Two weeks ago in Canarsie, a group of Cablevision workers took advantage of their company’s famous “open-door” management policy by stopping by a vice president’s office at the beginning of their shift. They wanted to talk about the future of their union. The technicians had voted to join the Communications Workers of America nine months prior, but contract talks were dragging on, and they wanted some assurance that the company was negotiating in good faith and not just trying to break the union.

The VP kept them waiting for 40 minutes and then fired them all on the spot, Michael Powell reports:

They waited for 20 minutes to talk, then 20 more. La’kesia Johnson, 44, grew restless and walked to the front office. A manager told her to go back inside. Then the vice president walked in and asked, essentially: Who’s supposed to be working now?

Every worker, 22 in all, raised a hand.

“Ladies and gentlemen,” the vice president said, according to multiple accounts, “I am sorry to tell you that you’ve all been permanently replaced.”

“I said, ‘Whaaat?’ ” Ms. Johnson says. “Replaced? You just fired us? You don’t even know what we want.”

Ms. Johnson says the vice president looked at her and stated: I don’t care what you want. [NYT]

Cablevision claims that the workers were fired because they refused to go to work, a claim that is undermined by the fact that the workers loaded up their trucks with all the supplies they needed for their shift before they went to see the VP.

The Village Voice reports that about 50 workers initially showed up to meet with vice president Rick Levesque, but that most left to go back to work when they realized he had no intention of meeting with them, but a core group of activists was invited stay, according to the Voice:

As the technicians were leaving, Levesque approached Adams, his fellow shop stewards and a few other technicians to meet with him inside the site’s conference room.

“He says he has time all of a sudden to speak with us. So, we sit down, and we’re expecting to speak with him right then and there. And, he spends another 20-25 minutes before he comes back,” Adams says.

When he came back the workers were informed that they’d been permanently replaced for staging an unauthorized meeting and refusing to work. Five of the fired workers, who were rehired last week, were already in the middle of jobs when they were called back to be fired for “refusing” to work. [VV]

All of the major mayoral candidates in New York are supporting the Cablevision workers. The union and the fired technicians were in Albany this week urging state legislators to investigate Cablevision’s labor practices.


[Photo credit: A cable technician, for illustration, jDevaun, Creative Commons.]

Arizona Republic Wins February Sidney for Expose of Faulty HPV Tests Linked to False-Negative Results and Undetected Cancers

Congratulations to Bob Ortega of the Arizona Republic on winning the February Sidney Award for his expose of the faulty SurePath HPV test, which has a dramatically elevated rate of false-negative results compared to other tests on the market. Women have died or lost their uteruses to cancer after getting at least two false-negative SurePath test results in a row. A false negative means that an HPV+ woman is told she doesn’t have the virus, which means that her doctors may wait longer before scheduling her next Pap smear. HPV is the virus that causes most cervical cancer. If HPV causes cancer, early detection is key to a successful treatment. If false-negative results delay cancer detection, the disease may become more difficult to treat. Millions of American women get the SurePath test every year, even though the manufacturer and the FDA are well aware of the false-negative problem. Find out why in my interview with Ortega for The Backstory.

NYT: GOP Strangling the Consumer Financial Protection Bureau

This New York Times editorial pulls no punches. It bluntly states what everyone knows, but what some have been too delicate to spell out in so many words, namely, that the Republicans are using the filibuster to strangle Consumer Financial Protection Bureau:

The bureau cannot operate without a director. Under the Dodd-Frank law, most of its regulatory powers — particularly its authority over nonbanks like finance companies, debt collectors, payday lenders and credit agencies — can be exercised only by a director. Knowing that, Republicans used a filibuster to prevent President Obama’s nominee for director, Richard Cordray, from reaching a vote in 2011. Mr. Obama then gave Mr. Cordray a recess appointment, but a federal appeals court recently ruled in another case that the Senate was not in recess at that time because Republicans had arranged for sham sessions.

That opinion, if upheld by the Supreme Court, is likely to apply to Mr. Cordray as well, which could invalidate the rules the bureau has already enacted. The president has renominated Mr. Cordray, but Republicans have made it clear that they will continue to filibuster, using phony arguments to keep the agency from operating. [NYT]

Forty-three Senate Republicans wrote a letter to the president threatening to filibuster his nominee until “major structural changes” are made to the CFPB. Needless to say, the Republicans are holding out for structural changes that would cripple the bureau. In its short life so far the CFPB has won an $85 million settlement against American Express for deceptive marketing practices, cracked down on some predatory mortgage-lending tactics, and opened an investigation into dubious credit card marketing on college campuses. Some critics say the bureau hasn’t done enough, but the Republicans want to see it doing even less.

[Photo credit: 401(k) 2013, Creative Commons.]