Commission to Eliminate Child Abuse and Neglect Fatalities: First Public Meeting

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On February 24, the Commission to Eliminate Child Abuse and Neglect Fatalities, a committee established by the Protect Our Kids Act of 2012, will hold its first public hearing. To attend in person participants needed to RSVP by last Friday, February 14 but for individuals that cannot attend there is a call-in phone number at 877-939-8175, with the meeting ID number 3067305 (push # when prompted for Attendee ID).

In the last hours of the 112th Congress on January 2, 2013 the Senate approved the Protect Our Kids Act, (HR 6655). The bill establishes a commission to examine child deaths in the United States. The legislation was being championed by Congressman Lloyd Doggett (D-TX) and he was later joined by the Chairman of the House Ways and Means Committee, Congressman David Camp (R-MI). The original bill was introduced by Senator John Kerry (D-MA) (S 1894) in the Senate. The commission has 12 members. The President selected six of the members and the House and Senate leadership each appointed three members with the majority parties selecting two of the three members. The work of the commission will be paid for by a reallocation of $2 million from the Temporary Assistance for Needy Families (TANF) contingency funds.

President Obama completed the selection process last September when he announced his six selections. The presidential appointees are: Dr. David Sanders, Casey Family Programs, Theresa Martha Covington, the National Center for the Review and Prevention of Child Deaths, Patricia M. Martin, Presiding Judge of the Child Protection Division, Circuit Court of Cook County, Illinois, Michael R. Petit, Every Child Matters Education Fund, Jennifer Rodriguez, Youth Law Center (YLC), Dr. David Rubin, the Perelman School of Medicine at the University of Pennsylvania.

The six congressional members and who selected them are: Wade Horn, Deloitte Consulting by Minority Leader Mitch McConnell, former Congressman Bud Cramer by Minority Leader Nancy Pelosi, Amy Ayoub, Nevada public speaking and presentation skills coach by Majority Leader Harry Reid, Marilyn Bruguier Zimmerman, National Native Children’s Trauma Center by Senator Reid (and Senator Max Baucus), Susan Dreyfus, Alliance for Children and Families, by Speaker John Boehner, and Cassie Bevan, Graduate School of Social Policy and Practice at the University of Pennsylvania by Speaker John Boehner. An expanded biography piece and a link to the legislation is available on the National Child Abuse Coalition website.

The commission’s work includes an examination of:

  • best practices in preventing child and youth fatalities that are intentionally caused due to negligence, neglect, or a failure to exercise proper care
  • the effectiveness of federal, state, and local policies and systems aimed at collecting accurate and uniform data on child fatalities
  • the current barriers to preventing fatalities from child abuse and neglect, and how to improve child welfare outcomes
  • trends in demographic and other risk factors that are predictive of or correlated with child maltreatment, such as age of the child, child behavior, family structure, parental stress, and poverty
  • methods of prioritizing child abuse and neglect prevention families with the highest need
  • methods of improving data collection and utilization, such as increasing interoperability among state and local and other data systems

After working in these areas the Commission is directed to make recommendations in two general areas: reducing child fatalities resulting from abuse and neglect for federal, state, and local agencies, the private sector and nonprofit organizations, including recommendations to implement a comprehensive national strategy, and they are to develop guidelines for the type of information that should be tracked to improve interventions to prevent fatalities from child abuse and neglect.

~ Written by John Sciamanna

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Nader’s work is related to many child advocacy themes.   His orientation is toward future interests, and in some ways he marries consumer and child advocacy through his work.   That work has included two themes important to children.  The first is direct work on child safety.  Indeed, the auto safety aspect of his work alone, together with the related achievements of Joan Claybrook, has saved perhaps more children from death and disability than anyone else outside of  Drs. Salk and Sabin.   The important work of Rob Weissman while with Nader saved many lives in underdeveloped nations by making otherwise expensive pharmaceuticals affordable for millions – particularly of benefit to children subject to the AIDS scourge.   His work to inspire the Consumer Product Safety Commission and to stimulate child safety inclusion in FDA studies, including a lifetime of work by Dr. Sid Wolfe of Public Citizen started by Nader are other examples.   Second, he is well aware of the current imbalance in political influence favoring “here and now” profit by those organized around a profit stake in public policy.   His work, in concert with John Richard and Russell Mokhiber, have long shined an ethical light on corporate illegality.   Importantly, corporations properly advance immediate, short term interests (their capital investment that their directors and officers are bound as fiduciaries to protect).  That obvious corporate orientation may often involve long term costs – the amelioration of which is central to child advocacy purpose.     The concern here has been magnified by the regrettable impact of campaign contribution influence from the burgeoning trade, corporate, and other associations (horizontally organized economic interests) who increasingly make up the “stakeholders” now determining public policy.   Their orientation is hardly one of long term impact.   And the regrettable discounting of future effects is perhaps the quintessential concern of child advocacy.   Nader seeks balance —  and the representation of diffuse and future interests rather than the increasingly disproportionate domination of courts, agencies and legislatures by those who have other  foci.

Ralph Nader is now out with a new book: “Told You So” (Seven Stories Press, 2013).   It is a compilation of over 300 weekly columns written by Nader over the last 41 years.  It is not turgid prose, but has a readable diction; each commentary is concise and reviewable in several minutes.  Its warnings are disturbingly prescient, and well illustrate his child, safety and diffuse interest orientation.  This book is a revisit to many of his prior critiques and predictions.

Their short length and direct messaging depart from the style those of us in “academia” publicly respect and try to emulate.  Many of us would be among the first to sneer that a “three page analysis of auto fuel efficiency” is insultingly brief and obviously designed to inflame and not educate.  Indeed, it would require at least 150 pages on a subject using pretentious  passive voice, complex sentences, citations to every factual contention, and, ipso facto, much gratuitous Latin.   But has the world ever changed!  Our students now communicate via Twitter and with incomprehensible acronyms: OMG, please KMN.   In a world borne of books and chapters, it is a task to get my students to think beyond phrases and to actually construct …. paragraphs!  So all of a sudden, these columns read more like in-depth,  thoughtful essays than like the “radical excitations” we may have labeled them in 1975 in order to sniff our dismissal.   And his theme speaks to the future concerns of child advocates.  It is not just global warming the inefficient autos exacerbate, it also raises a seminal ethical issue – to wit, the exhaustion and deprivation from future generations of the earth’s limited assets.

The second feature to the work is related to its title: “Told You So.”   As one who has passed 60 years of life, here is a secret I pass onto my juniors.   During our lives we ideally learn things, and profit from our own failures and the much easier ones to identify (those of others).  And during the course of our life we will warn people about economic trends, cultural changes, and, of course, other people with whom we disagree.  We will predict dire consequences.   And here is something interesting – we may suffer short term memory loss, but we will remember with perfect acuity every single such warning whose message correctly came to pass.  As with yours truly, you will come to believe the following: “I have been right so often in my 68 years, and predicted every calamity that could be predicted, such that I can rightly say ‘I told you so, you idiots.”  You so conclude almost daily as you peruse the newspaper – or, excuse me, the blog postings and tweets, by our omnipresent twits.

Although we do not admit it, there is likely an element of selective memory in such expansive self-congratulations.  “If only they had listened to me, we would not be in any of these fixes – environmental despoilment, educational regression, child disinvestment and debt imposition, and the rest of it.  The damned ads on television are still twice as loud as the damned programming, don’t get me started!”  But in point of fact, we tend to engage in a natural selection of remembrance, recalling perfectly everything that turned out as we warned, and forgetting everything where we were wrong.  And that is what makes the book rather remarkable.  Of course, there may be a number of columns not included because the predictions failed to materialize, but even taking that into account, you do find yourself mumbling after reading each column: “Okay, he was right on that one.”  But you have to be predictive sometimes, especially if you are hypercritical of government and business.  I mean, both are sitting ducks, often making horrible mistakes in concert.   But what is remarkable here is the breadth, degree and incidence of accurate prediction.  Most interesting are the oldest columns from the 1970s and 80s.  This is a book best started from the back where the oldest columns are located.  My Lord.  “Crime in the Suites,” “Nuclear Power Plant Risks,” “This Land is Your Land,” “Subsidizing the Banks,” the “Student Loan Scandal,” and my personal favorite: “Gobbledygook is Growing.”

Most of what is written could be repeated today, with a tag line after many sentences, uttered in the voice of the Sheldon Cooper character on the Big Bang Theory:  “Did you read that, idiot?  Did I not tell you so?  Did I not?  Did I not?  Hmmm?”

Later columns warn us either well before or during the early stages of:  the savings and loan debacle, the Enron energy scam, the Iraq war and many other problematical policies of the past two decades.  He also predicts in repeated columns the derivative gambling fiasco of this decade (let’s gamble a trillion dollars, and heads I win –  tails you lose).  With such a record, even if there is some selectivity, the author may earn a measure of credibility, such that what he is saying now may warrant more attention than the time we shall devote to, say, posting our vacation photos online to win the envy of our 460 “friends.”

And it is most remarkable that so many of his messages have had and will have future impacts – impacts that form the primary crucible for child advocacy.   You should read this book, and click here to order  it from Amazon.   If you ignore this suggestion and do not do so, and thusly miss one of its prescient warnings,  you can count on me to tell you that I told you so.

Professor Robert C. Fellmeth
Price Professor of Public Interest Law, University of San Diego School of Law

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How Maryland robs its most vulnerable children

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Try this on for size: The agency overseeing foster care has been appropriating foster children’s assets – orphaned children’s survivor benefits, for example – and handing them over to the state.

There’s more: Not only does this agency take assets from children, but Governor O’Malley and the head of the Maryland Department of Human Resources encourage the practice, going so far as to hire a private company to help obtain Social Security disability (SSI) and survivor benefits (SSDI) from foster children to use as government revenue.

Children’s social security benefits are intended to serve the children’s best interests. But our foster care agency is targeting abused and neglected children who are disabled or have dead parents, applying for social security benefits on their behalf – and then diverting the money to state coffers.  The practice has been occurring for years, but in secret. Children and their lawyers are not notified.

Despite litigation regarding the practice, Maryland hired a private contractor – MAXIMUS (tag line: “Helping Government Serve the People”) – to help broaden these efforts to “maximize revenue gain.” Records obtained by Public Information Act request expose the following:

  • MAXIMUS recommendations “designed to promote the identification of and subsequent acquisition of all SSI/SSDI benefits for all qualifying foster care children;”
  • MAXIMUS “encourage[s] caseworkers to refer any child suspected from suffering from any illness – from a quadriplegic to ADHA [sic];”
  • A goal to increase the number of Maryland foster children determined disabled for Social Security benefits from the current 2% to 15-20%;
  • Plans to convert up to $9 million annually in resulting children’s benefits to government revenue;
  • And a warning that Maryland may be double dipping by possibly obtaining foster children’s assets and other funds to reimburse itself for state costs more than once.

Two foster children challenged the agency practice, and their cases worked through the Maryland courts.  I represented Alex, and the Legal Aid Bureau represented Ryan.  Alex entered foster care at age 12, when his mother died. His father died shortly thereafter. Ryan entered foster care at age 9, and then both of his parents died.  Both boys were shifted between numerous group homes and foster care placements. The boys never knew their parents left them with survivor benefits, because the foster care agency never told them – and never told them it applied for their benefits, that it became representative payee to gain control over their money, or that it routed their money into state coffers. Both boys left foster care penniless.

The Court of Appeals denied hearing Alex’s appeal, but it granted review of Ryan’s case, and I filed an amicus brief on behalf of several advocates. The Court just issued a ruling in In re Ryan W., concluding Maryland violated Ryan’s constitutional due process rights by applying for and taking his funds without notifying him or his lawyer. This is an important ruling for foster children’s rights. If children can find another representative payee, the state can no longer force them to hand over their money.

But unfortunately, the Court upheld the state’s argument that when it serves as payee it can divert children’s benefits to repay state costs and thus bolster government revenue – even though children have no debt obligation to pay for their own foster care.  This part of the decision is incorrect in my view. But even if it’s correct, the Court recognizes that Maryland has discretion as representative payee to consider the best use of the children’s money.

So, since the state has discretion, I posit this question: what should our Governor do? If our state and foster care agency need more revenue, is the answer really to take resources from the very children this agency exists to serve?

Other states do it too, but that doesn’t make it right.

Consider how the children are fairing: Twice as many foster children suffer from post traumatic stress disorder as Iraq war veterans; over one-third of children aging out of foster care never graduated from high school; only 3 percent complete college; less than half find employment; 85 percent suffer from mental health issues; over one-third are homeless; and almost 75 percent of males become incarcerated by age 26.

A better approach would use children’s money to actually help the children, such as conserving the children’s funds in individualized plans to help their specialized needs and to help them achieve independence once they leave foster care.

About the Author: Daniel L. Hatcher is a professor of law in the University of Baltimore’s Civil Advocacy Clinic, reachable at dhatcher@ubalt.edu.

This article was originally published in the Baltimore Sun on October 14, 2013, and can be accessed here.

It’s Just Kindergarten – Is Attendance Really That Important?

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Many families do not prioritize attendance because they may not appreciate the high marginal value of every school day, the dangers elementary school truancy and absenteeism create for their child’s long term success and opportunities, and that school attendance is legally required.  However, elementary school provides a brief window in which to teach children the fundamental skills they will need to lead productive and happy lives.  It is where we diagnose a child for vision, hearing or learning impairments.  Above all, it is where we build a foundation for academic success and set children on a path to good health and economic security.

Late last month, California’s Attorney General, Kamala D. Harris released a new report, “In School and On Track, The Attorney General’s 2013 Report on California’s Elementary School Truancy and Absenteeism Crisis.”  The Attorney General announced that this is only the first of several reports.  Because the link between elementary school truancy rates can be so closely correlated with high school dropout rates and crime rates, California’s Attorney General’s Office will produce annual reports tracking truancy and chronic absence in elementary schools across the state.  Many of the statistics of the Report are simply jaw-dropping.  For example, did you know that high school dropouts cost California $46 billion each year?  A summary of the report’s key findings is below:

School Budget Impact of Truancy

  • School districts lose $1.4 billion per year based on student absences because school funding is based on student attendance rates.
  • San Diego County Schools lost almost $95 million in the 2010-2011 school year due to absenteeism.  That equates to $211.20 per student that was lost over the course of the year.

Dangers Truancy Creates for Your Child

  • Truancy (being absent or tardy by more than 30 minutes without a valid excuse on 3 occasions in a school year), especially among elementary school students has long-term negative effects.
  • Students who miss school at an early age will fall behind their classmates.  Students who miss a lot of school in the early years are likely to become disengaged from their studies and struggle academically, develop behavior problems and, in later years, to drop out of school entirely.
  • First grade students with 9 or more absences are two times more likely to drop out of high school than their peers who attend school regularly.
  • For low-income elementary students who have already  missed 5 days of school, each additional school day missed decreased the student’s chance of graduating by 7%.
  • High School dropouts can be predicted with 66% accuracy based on attendance data in the third grade.
  • According to one study comparing the scores of more than 600 kindergarten students on a school readiness exam and a 3rd grade reading test, students who arrived at school academically ready to learn but then missed 10% of their kindergarten and first grade years, scored an average of 60 points below similar students with good attendance on 3rd grade reading tests.  In math, the gap was nearly 100 points on tests with 400 points possible.
  • Increasing graduation rates in California by 10% would result in 50,000 additional graduates annually, 500 murders prevented each year, and 20,000 aggravated assaults prevented each year.

Truancy is Against the Law

  • Truancy is against the law.  California’s Compulsory Education Law requires every child from the age of 6 to 18 to be in school – on time, every day.
  • Because of the long-term negative effects of elementary school truancy, there is currently a statewide push for prosecutors to accept referrals for truancy prosecutions of parents when an elementary school child is involved.

About the Author: Christina Riehl is a Senior Staff Attorney in CAI’s San Diego office. She conducts litigation activities; performs research and analysis regarding CAI’s legislative and regulatory policy advocacy; assists in the research and drafting of CAI special reports; and serves as an Educational Representative under appointment by the San Diego Juvenile Court. Before joining CAI, Riehl worked as staff attorney with the Children’s Law Center of Los Angeles, where she represented minor clients in dependency court proceedings. Prior to that, she interned with the Honorable Susan Huguenor, formerly the presiding judge in San Diego Juvenile Court. Riehl is a graduate of the USD School of Law, where she participated in the CAI academic program. 

 

The Emerging Impact of Sequestration on the Nation’s Most Vulnerable Children

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On Wednesday, July 24, there was a Budget Summit held in DC by First Focus.  In the Children’s Budget for 2013, child welfare spending took a big hit in programs that attempt to prevent child abuse and keep families unified. The overall budget numbers for the first time give some context to the impact of the sequestration cuts. The human cost is likely immeasurable and invisible to many but in terms of actual spending numbers the report indicates that children now receive less than 8 percent of the federal budget. Since 2010 spending has fallen by $35 billion and when spending is adjusted for inflation it has decreased by 16 percent just since then. Discretionary spending, which is separate from mandatory, entitlement and tax spending and is appropriated each year by congressional action, has declined by 13 percent.

In terms of the child welfare spending;

Title IV-B part 1Child Welfare Services (CWS) funding is cut to $262 million in this fiscal year down from the total of $280 million in 2012. That reduces CWS to its lowest actual spending level since 1990 when it was funded at $252 million. If that 1990 total had kept pace with inflation it would be more than $427 million. CWS is a flexible fund that can be used for a range of services. In FY 2010 the biggest categories of spending in CWS were:

  •  Child protective services –services to prevent and investigate child abuse
  •  Family support—to prevent child abuse by supporting the most vulnerable families 
  • Reunification services—to help reunify a foster child with his or her family 
  • Foster care maintenance—a limited number of states are allowed to use these funds for foster care 

Title IV-B part 2, with the Promoting Safe and Stable Families (PSSF) cut to $387 million in this fiscal year, down from the total of $408 million in 2012. This program, newer than CWS, has had a better financial history. It peaked at $455 million in FY 2007. PSSF is a more complex funding stream as the totals here include $20 million for workforce development, $20 million for substance abuse treatment and $30 million for the state courts. What remains is the funding for the program’s main purposes. In this category total funding was approximately $338 million in 2012 with that being reduced to approximately $321 million for the four main services:

  • Family preservation—intensive work for families in crisis to prevent the placement of children into foster care
  • Family support—to prevent child abuse by supporting the most vulnerable families 
  • Reunification services—to help reunify a foster child with his or her family 
  • Adoption promotion and support—to support families that have adopted including providing post adoption services 

The Child Abuse Prevention and Treatment Act (CAPTA) funding is cut to$87 million down from $93 million in 2012. In 2012 state grants were funded at $27 million, discretionary grants were funded at $25 million and community based child abuse prevention grants were funded at $41 million. Funding for the three programs peaked in 2005 when it totaled $111 million. CAPTA includes a number of mandates on state child protective service systems including mandatory reporting of child abuse, legal representation, research and prevention:

  • State grants—are intended to fund state child protective services
  • Discretionary grants—provide research into child abuse and child maltreatment 
  • Community-based child abuse prevention—funds, through various local programs to prevent child maltreatment from occurring 

There are also a number of other child welfare programs that are reduced including the Adoption Incentives fund, the Adoption Opportunities Act, the Abandoned Infant program as well as child abuse programs in other areas of the budget such as funding for the Court Appointed Special Advocate (CASA) program and the Children’s Advocacy Centers for maltreated children.

The entitlement programs including Adoption Assistance, Foster Care and Kinship Care are exempted from the cuts as are entitlement programs adjusted according to state claims based on children in care. A fact not overlooked by those who are concerned about any discussion to convert the entitlement programs into flexible funding block grants.

Authors: Amy Harfeld and John Sciamana

A Call for Childcentric Philosophy and Politics

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I have long been a registered Republican, but now find both parties to be unacceptable sources of reliable policy for children and the future they represent.

Both parties, but particularly the Democrats, are amassing unprecedented future obligations for our children and their children, primarily for the care and comfort of my generation — the Boomers.  We are, in contrast to the Greatest Generation of our parents and grandparents – perhaps the most self-centered grouping of adults in American history.  The Social Security benefits we have not paid for, and the Medicare deficit – financing everything from joint replacements to Viagra – portend trillions in future obligation.  The amount in under-funding there, adding in the smaller federal deficit, rises to above $60 trillion within the life of those children now being born.  Merely the interest on that deficit at 5% will be almost half of family income – before other taxes.  But liberals will not talk about it, and even conservatives avoid mentioning the two most costly programs, preferring to blame food stamps or other investments in children that are trivial in amount and have some ethical basis.  Beyond that, liberal ideology favors “top down” bureaucracy, services performed by those with “caseloads” (relegating even foster children to too many institutional caregivers), and dependence on public employee unions.  Add to that the politically correct tolerance for infinite adult license – including abandonment of a child’s simple right to be intended by two people.

At the same time, we have a Republican Party that has forgotten its roots, and now serves as tribalistic defenders of privilege and excess.  They are self-indulgent takers who worship words like “freedom” and stand tall before the flag, but forget that those hitting the beaches at Iwo Jima were sacrificing for all of us.  Of course we best respect individuality (which makes their lemming-like group obeisance to each other rather ironic), but we also know we are a community.  A lot of people, strangers, and including those Marines through history, have contributed to where we are now.  And yet we don’t pay attention to the children the state seizes for their protection,we don’t invest in the children of all of us, and we even go so far as to defend a system of health care that means if a child is ill, an uncovered family risks likely bankruptcy if she spends more than a few days in a hospital.  My Party has become an ignorami tool of monied interests, and is at least equally irresponsible.

Conservatives do favor use of the market to allocate resources efficiently, recognizing it as a presumptive means of efficiency and of “bottom up” economic democracy.   On the other hand, current conservatives fail to heed their own economic theorists who identified market flaws needing correction, including natural monopolies, imperfect information, and external costs. As to the last, these costs occur where the market fails to assess damages imposed on others, such as a product that causes sickness or a manufacturer who pollutes to ruin fishing downstream.   The market is an important construct, but it is fashioned by humans and influenced by rules of liability and mankind created inequities.  It is not a deity. Indeed, the classic Renaissance satire of Candide by Voltaire skewers the “Optimist” philosophy that all that happens is perfect because God controls all and wills it.  Neo-conservatives largely replace “deity” with “the happenstance of the current market” in their equally vulnerable worldview.  The market is a useful human construct with rules about who is liable for what costs that the market may or may not assess by discretionary decision, e.g., rules of liability, public assessments, criminal prohibition or any number of influence-factors.   Such “external costs” can include health consequences that are caused by a product’s use, environmental harm to others or other costs to be borne by those in the future.  Environmental depredations, now at unprecedented levels, the consumption of limited resources and other policies that sacrifice those in the future for present comfort – these are costs that may be prevented through straight prohibition or other adjustments not requiring “licensure regulation” or other “prior restraint” intervention.

They may also be addressed through fees.  These amply supplement the market while retaining its efficiency features.  Such fees would be set to measure the costs of denial or harm to future generations.  They should start low to allow recovery of existing sunk cost investment, but should increase substantially in an advance-noticed format as time passes to allow for the efficient reallocation. This mechanism recognizes future costs and internalizes them through market forces efficiently amended (or corrected) by those assessments.  The revenues from those fees could then ameliorate the harm — while the external cost continues to accrue damage, and to stimulate approaches that are less costly to those who follow us.  Accordingly, global warming and the consumption of the earth’s limited supply of carbon could be ameliorated through an international carbon fee starting low, but accelerating in amount as years pass. The revenue would be used for solar power or other external benefit subsidy, or to ameliorate the damage from removal and damage during the interim period where damaging exploitation or production continues.

The lodestar for all of us is the supervening obligation owed to those who follow us in the millennia to come.   It is interesting that we all have such acuity in seeing the selfishness, irrationality and cruelty of our predecessors (whether the inquisition, slavery or unjustified wars).  Our point of view in making systemic decisions should be as follows:  What will be the future view of it and of us in five or more centuries.  Our founders risked much for us.  How will those who follow us in 250 years view our record?  We have been impressive in communications, transportation and computer technology.   But that may not be the crucible of future ethical judgment.

Exacerbating the child-friendly reform of American public policy is the influence of corporations and the decline of democracy.  In particular, Citizens United   egregiously equates these statutorily created “persons” with human persons in their political right entitlement.  But corporations consist of collections of capital devoted to some invested purpose, and with officers and lobbyists necessarily (and properly) serving the present financial interests of stockholders funding it.   Such a focus is not itself a criticism – that is what they are intended to do.  But that persona is very different than that of a human directed democracy.  The latter is properly controlled by individuals who are concerned about diffuse and future interests. The corporation necessarily seeks to “free ride” for maximum profit, and to take exhaustible resources or impose costs on others or on the future—particularly where it serves the protection of the capital investment that is its necessary lodestar.   That bias is intended and may manifest much advantage in productivity.  But elevating such entities to the enhanced political rights of humans pushes the needle radically in a direction against those who are unorganized and who depend upon future commitment.  Those interests were already at risk before the elevation of corporations for purposes of political contribution and influence.  Indeed, CAI has been lobbying for children for 23 years in Sacramento and in D.C., and we know that legislative bodies are increasingly passive.  Even the language of modern civics reflects the change: the “sponsors” of legislation are no longer the legislators introducing it, but the interest groups actually writing it.  And the negotiations are undertaken by “stakeholders.”   Children are often absent.  They provide no votes or campaign money.  They are diffuse and represent future interests, the place you kick the can down the road to. They have few advocates; in fact, the elderly lobby AARP alone spends 25 times as much on lobbying in D.C. as do all child advocates combined.

We have work to do and we face difficult odds when confronted by two parties who have largely abandoned children, except for photo ops and rhetoric.  We need to resurrect a strong sense of ethical imperative to measure all that we do under a primary lens:  What are we passing onto our legatees?

About the author:  Professor Robert C. Fellmeth is a tenured law professor at the University of San Diego (USD) School of Law and is Founder and Executive Director of USD’s Center for Public Interest Law and its Children’s Advocacy Institute. He is the holder of the Price Chair in Public Interest Law at the USD School of Law, one of two such chairs in the nation.

Critical Issues of Child Privacy At Stake in Problematical Fraley v. Facebook Federal Court “Settlement” Order

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The federal district court of Northern California, and perhaps eventually the Ninth Circuit, are about to decide a seminal case on child privacy in the internet age.   It is a case that raises not only issues of national policy toward children and parental rights, but also issues of class action monitoring.  For these cases require a kind of active monitoring not normally a part of judicial practice in common law jurisdictions.    Courts in this country are structurally passive.  They decide cases brought by contending parties.  We assume that the proper precedent or ruling will come from the range of advocacy the parties provide.

Enter the abusive class action, with the current case of  Fraley v. Facebook as Exhibit 1.  This case was brought in name by the “class of Facebook” subscribers, including a subclass of millions of child-users aged 13 to 18.   It seeks damages for alleged improper use of names and photos for a “sponsored stories” practice of publishing to one’s “friends” –  a  commercial endorsement of some sort – without effective advance consent.   Facebook gets paid for it.  Under the final proposed settlement now before the court, this allegedly unfair practice would yield the following financial terms: (a) a rather token system of less than $10 to each “claimant”, (b) possible awards to multiple consumer/privacy groups who might otherwise oppose it – as cy pres financial grants, and (c)  $7.5 million to the firm for the class.

Besides these monies, what will be the critical court order dictating actual future practice?  It first removes the reference  to “prior consent” for the expropriation and sale of a Facebook members’ postings that was in the prior version of Facebook’s “terms and conditions.”   Now it provides for the opposite, an explicit and blanket advance waiver of any compensation, and of blanket permission for ANY expropriation of ANY posting or photo put on Facebook – to be selected and arranged by it, with completely unfettered discretion.  It applies to any member, including children.  To repeat for the “that can’t be true” reader:  Facebook can take any information posted, any photo, any combination, and repackage it, take money for it, and send to whomever it wishes, including potentially millions of recipients.

The limitations on this license are illusory.  They include an alleged caveat that Facebook will respect destination limitation imposed by the member.   But the “limits” to exposure of postings is not readily apparent and most importantly, the default value unless you act to change it, is “public” – no limitation.  And nobody is now going to get any advance notice that such an expropriation will occur, know what it will consist of, when it will happen, or to whom it will be sent.   Nothing.  Nada.  It just does it, as it pleases and to whomever it wishes.  To be clear, this blanket advance waiver applies to any child who has not notified Facebook that a parent is also a Facebook subscriber, obviously the vast majority of kids.  It purportedly constitutes advance consent (by a minor unable to enter into most enforceable contracts) without any notice in advance of a repackaging and publication, without any review or consent by parents, without any  notice that it happened.  You might learn post hoc, if someone tells you about it, but you will not know who got it.  And anyone who gets it can copy and paste and re-transmit it to anyone else.  And as with the internet in general, it tends to stay.  It is not erased periodically.

The public policy offense here is especially egregious for the children who will suffer this privacy incursion.   Kids will have their postings sent in some unknown format and arrangement and purpose to – who knows?  Regrettably, kids are not always completely mature in their postings, often intend for only a few to receive one, and suffer heightened emotional turmoil when they are embarrassed by the revelation to large numbers of unintended persons of something intended for private viewing, or perhaps better not sent at all.   It is not an accident that California law requires children (not adults) to get parental permission for a tattoo.  Parents are justifiably and legally in the proper position to protect and guide their children and that task is not best delegated in blank-check format to a third party commercial interest.  But under the proposed final settlement, most parents will have no ability to monitor and limit their child’s on-line tattoo.  They will not know about it, and they will not be asked.

This little “arrangement” between Facebook and the child “subclass” is hardly an improvement from current practice.  It will take the form of a little missive in the middle of the adhesive “terms and conditions” sign off we all make without scrolling through the document.  And this document has now been renamed the “rights and responsibilities” message and includes 18 detailed provisions in tiny print that requires 10 big scroll clicks to get through.   This one will fit in under #10, after your fifth scroll down,  mislabeled, and as Facebook well knows, unread by 99% plus of all new subscribers and 100% of all current subscribers (indeed, it is not even accessible from the member’s own existing Facebook page).

So, far from being “fair, reasonable and adequate” (required of class action settlements), this is a fraudulent remedy that is worse than the previous posture of the class (and particularly the subclass of children) prior to this suit.  Indeed, the practice of expropriation that led to this suit and its rather transparently fake “remedial fund”–  would be entirely approved were the new clause previously in effect.  So instead of enforcing the law and obtaining both restitution and assurance of future compliance, we have a federal court being asked to officially approve future violations of the very type that brought the case before it.

And that is just the start of the problems here.   On the minors side, we have especially egregious public policy offenses.  This subclass of millions of children is in a different legal posture than are the adults.   As noted above, children cannot agree to a contract of this sort.  Facebook has stipulated that California law applies to its practices and this settlement.  And while more than 17 states have similar laws, California has perhaps the clearest statutes requiring parental consent before any such privacy incursion can occur lawfully.   The issue is addressed in Civil Code Section 3344 and in various sections of the Family Code.  California’s Family Code statutes specifically address the illegality of a “delegation” to someone other than a parent or guardian of use of a child’s information/likeness.

So how does Facebook surmount these provisions in court?   It actually argues with a straight face (an occupational necessity for attorneys) that the federal Children’s Online Privacy Protection Act (COPPA) entirely preempts all state law pertaining to child internet use and privacy. COPPA explicitly pertains only to children 0 to 13, and it prohibits Facebook and others from even allowing a subscription to any such child without prior parental permission.  Nothing from such a young child may even be “captured” or “collected” by the internet entity.   These children are (purportedly) not properly on Facebook at all, and its policy is at least facially not to accept them.   So counsel actually stands up in court and declares that this high “floor” of protection directed only at children 0 – 13 means that all laws and protections for children 13-18 are extinguished.   I kid you not, that is what they argue.   And what case do they cite?  The Arizona immigration decision holding that states cannot interfere with federal immigration policy.  Really?   Protecting children is hardly an occupation of the field by the United States government as are matters of national entry and citizenship.   But that is the precedent cited.

But here is why this whole minuet playing out in the courtroom of Judge Richard Seeborg is so discouraging.  The class attorney is asking for $7.5 million in fees, lead counsel asking for $980 for every hour he apparently breathes, with a multiplier.   But it gets worse.  Because one of the sections invoked in the case (Civil Code Section 3344) is a “fee shift” statute that requires unsuccessful plaintiffs to pay the legal fees of the defendant!   So in every deposition of class representatives, Facebook attorneys, sounding a bit like minions of Al Capone, berate the class representative: “has your attorney informed you that if you proceed with this action and lose, you will have to pay OUR fees” (likely also millions)?   And that examination went on at length for each of them!  So… if you take Facebook’s convenient terms for future privacy gambolings the class attorney gets millions, if you persist and we win, we hit class counsel in the other direction –  with our cost bill – and all of the class reps become bankrupt.

Now this is the setting for the proposal before the court.  The tendency of most courts is to not appreciate the actual economic dynamics at play.  It is tempting to get lost in the interstitial complexity of “how much should the class attorneys get?” and “should the class reps get $2,000 in incentive payments each or $5,000?   Or is the notice adequate?   Or, what if Facebook changes “Sponsored Stories” and calls it something else or does it a bit differently?   [An irrelevant concern since the proposed final order allows it to go way beyond any “sponsored story” configuration.]  But these questions dominated the hearing for final approval.  Nor was the court told accurately that the lead class representative Fraley resigned from the case, citing their concern for “privacy” and the utter failure of the proposed settlement to provide it.

Courts, including this one, are hesitant to violate the traditional passive posture of judges, and to presume to second guess counsel and parties.  The court here asked: “what is the difference between a minor and an adult who is the subject of a sponsored story reference?”  And when reminded that children are in a different category, noted that “adults also” make imprudent posts.   And, indeed, if all this case were about was Facebook saying that 13 year old Johnny or Mr. Smith “likes Big Macs,” maybe it does not warrant being the proverbial “federal case.”   But, as noted, this order goes way, way beyond sponsored story license.  It is an open book license.  Kid postings are all clay for Facebook, with attribution, with widespread exposure and without prior approval of kids or parents.   That is what this case is about.   And it is also about the proper functioning of our courts.

In this case, we have suggested a simple change that is easy to do: Just have Facebook copy and paste what it intends to send out, add a description of the recipients, and send it to parents with an “I consent” button.   If no parent has been identified or is available do not send anything.  If the button is clicked by someone claiming in good faith to be a parent, send it.  The court seems to view such an alternative as “interfering” with the parties and their arrangements.

But there are all sorts of alternatives possible that might create some bona fide prior consent.  Nor is such a change a matter of “nit picking”, how can the present blank check delegation be “fair, reasonable and adequate” when it is overly broad, worse than the situation pre-litigation, and violative of the law?

This is a case where those critically affected are not really before the court.   Often, objectors are looked upon as intruders, and they do sometimes have their own agendas.  But, on the other hand, the class action mechanism has the flaw that only the courts can police – one manifested here in spades.   You do not intervene on behalf of the state, and enter a court order sanctioning the violation of the common law, numerous statutes, privacy rights, child rights, parental rights – many of them with constitutional dimension.   You best not do so with the rationalization that you are just mediating between two contending parties and what they propose is not only presumptively, but is dispositively, “fair, reasonable and adequate.”

About the Author: Robert C. Fellmeth is the Price Professor of Public Interest Law and Executive Director of the University of San Diego School of Law’s Center for Public Interest Law and its Children’s Advocacy Institute.