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. 

Transition Age Foster Youth


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Transition age foster youth are those youth in the foster care system who are approaching the age at which they will age out of foster care. The term also refers to those youth who have recently aged out of the system and are transitioning into adult life.

Over the years, transition age foster youth have not fared well upon aging out of the foster care system. They experience high rates of homelessness, too many do not even complete high school or obtain their G.E.D. Those who do complete high school rarely obtain a college degree. Rates of mental health issues are high among former foster youth. Unemployment numbers are high and when they  are employed, they earn far less than their peers.

The Children’s Advocacy Institute has been engaged in advocacy to improve outcomes for transition age foster youth for several years. The laws and policies in this area are improving, but there is still progress that needs to be made.  This new video on CAI’s website brings to light the obstacles facing transition age foster youth, it highlights the progress that has been made, and the issues that remain to be addressed.  The page also contains a number of resources and reports, including CAI reports, on the issue of transition age foster youth.

Senate Finance Committee Hears Antwone Fisher and Examines Family Finding and Reauthorization

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On Tuesday, April 23 the Senate Finance Committee held its first hearing of the year on child welfare. The focus of this hearing was on the issue of youth and family finding more generally and the reauthorization of the Family Connection Grants more specifically. The witnesses included Antwone Fisher, Author, Director and Film Producer, Gary Stangler, Executive Director, Jim Casey Youth Opportunities Initiative, Eric Fenner, Westerville Ohio Managing Director, Casey Family Programs, and Kevin Campbell, Founder, Center for Family Finding and Youth Connectedness. The star witness was Antwone Fisher, the subject of a 2002 movie, The Antwone Fisher Story which was based on his autobiography, Finding Fish.

As a child Fisher was in foster care and after moving into adulthood and the US Navy he later discovered he had relatives living very close by throughout his placement. Committee members were interested in Fischer’s real life and very difficult experiences but also about how to do a better job tracking down family members when children are in the child welfare system. Kevin Campbell spoke to his successful efforts in helping to match children with their families. In his comments he said that as he was preparing for his testimony he was able to identify 62 of Fisher’s relatives within 10 minutes at a cost of $15.00 using the technology and methods he developed on family finding.

He proposed that designated funds be used to train and implement practices that successfully notify and match relatives to children in the child welfare system. Gary Stangler spoke to the changing work in trying to assist youth in foster care. He suggested that in light of new research and practice the Committee should re-examine the Chafee Independence program and how it might be improved to address education, health and other needs such as financial planning.

Congress has to reauthorize the Family Connections Grants this year along with the adoption incentive fund. The grants provide short term funding for four types of programs: family finding, family group decision making, kinship navigator programs and residential parent-child substance abuse treatment and counseling. While the funding for the adoption incentive program is discretionary (and not scored with a cost), to continue the Family Connections Grants at the current $15 million a year in mandatory funds, will require Congress to find the funding to continue the program.

The Administration has proposed a three year reauthorization so that it would next expire along with the IV-B programs it is housed under. It also has the benefit of tasking Congress with finding three years of funding instead of the five years a traditional reauthorization would require. Senator Max Baucus (D-MT), Chair of the Finance Committee, said he supported extending the program in his opening remarks. To access the complete testimony go to the Antwone Fisher Story as a Case Study for Child Welfare. The current authorization runs out on October 1, 2013.

by John Sciamana, Director of the National Foster Care Coalition
reprinted with permission

CHILDREN, AND ANONYMOUS SPEECH ON THE INTERNET AS A PURPORTED FIRST AMENDMENT RIGHT

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Children and child advocates must deal with a very different First Amendment world than did our forefathers.   They had the Village Green.  They almost always knew who was speaking.  Even the anonymous anti-British pamphleteers could encounter a responding pamphlet.  In general, America has allowed those who are criticized to respond close in time to the same audience.   In later times, concealed speakers making anonymous claims were limited in their access to mass media by professional journalists who insisted on a second independent source if someone wanted to hide, and letters to the editor quickly juxtaposed in editorial pages with some variety of viewpoint.   And rules of libel gave false accusers pause.   But the Internet is very different.  And its differences affect children directly in terms of bullying and privacy, and the political efficacy of the child advocates who represent them.

The Internet goes into our homes.  Its messages go to listserves chosen by the sender and likely not entirely known by the accused subject of the message.  Or the postings are accessible based on search engines of Google and other private corporations.  And the Internet service providers have won a major concession from the Congress – they are absolutely immune from libel.  Accordingly, they rank and disseminate anonymous libel with impunity.  And their messages cannot be easily answered per the assumption of “free speech interchange to ascertain the truth.”   Far from it.  You do not know who got the message.  Anyone receiving it can transmit it to others and then to others.  Even the search engines rarely allow a response to be juxtaposed so it is accessible to those seeing the accusation.  And it gets worse.  Because the concealed speaker can post multiple messages all from purportedly different sources.  And the messages stay there…sometimes accessible by search engines at the very top, for years.

The implications of all of this for child bullying and suicide are well known to those of us who represent children.  But it goes beyond direct abuse and affects basic political/ethical standards.   For wealthy corporations, after Citizens United, are largely “persons” with First Amendment rights.  Concealment of the speaker has some limited First Amendment value where a whistleblower is speaking truth to power, truth that feared retaliation would prevent from utterance.  But that is actually a fairly narrow First Amendment circumstance, one most advantageously addressed by statutes (now in a majority of the states) that inhibit employer sanctions or litigation to punish someone who blows the whistle.  And those important protections apply whether the speaker is courageous enough to announce himself, or whose identity is known already by the accused – as is often the case.

As noted, sometimes concealment can serve a First Amendment purpose, but the underlying value in knowing who is talking is entitled to relatively high priority in the hierarchy of free speech valuation.   That identification means that the audience knows who is talking, and can accordingly decide whether they want to listen or read – a rather significant right in a world of message barrages.  Perhaps more important, it allows the audience to weigh bias and expertise.  It improves the ascertainment of truth, a First Amendment purpose.  And the accountability that public disclosure provides discourages the bullying that we have seen increase exponentially over the past decade, as well as privacy incursions and false accusations generally.

Apart from the discouragement of child abuse, speaker identification also performs a critical function on the political front.  Historically, political reformers have advocated for transparency.  We want to know who is providing our political messaging.   We want to know who is funding it.   We want to know campaigners, and campaign contributors.  We want to know who is lobbying, who they represent and the subject matter of their attempted influence.   Here is the fact many of my colleagues have not fully absorbed:  Much of all of this is now taking place on the Internet.   Regrettably, Public Citizen, otherwise an admirable advocate for consumer rights, inconsistently backs “concealment of the speaker.”  It backs the so-called Dendrite rule that posits  “concealment” itself as a constitutional right – one that requires a federal court order making multiple separate findings to overcome, including that the posting be actionable “libel.”  Of course, in the political sphere, the leading Supreme Court decision (NY Times v. Sullivan) requires for such libel that the speaker have actual knowledge of falsity (or be in reckless disregard) – rather impossible to allege when you do not know who the speaker is.  The Dendrite approach benefits very few whistleblowers but has momentous collateral consequences.  Indeed, the vast majority of those interested in hiding their identity are doing it because if the audience is so informed (be they the Koch brothers or an oil company or someone with an obvious grudge) their messaging potency will be reduced.  And they seek concealment precisely because transparency and accurate information inhibits deception efficacy.

The denigration of the audience’s right to know who is talking (and who is financially behind the talker) necessarily occurs with the overly broad elevation of “concealment” itself as a First Amendment right.  And it has implications for any statutory or rulemaking effort to require speaker identification of himself and his financial stake/backers – for any such requirement then must be a “compelling state interest” to limit this “concealment” right, and any such limitation must be narrowly tailored. In practical terms, this will mean that effective disclosure obligations will be impossible to enact or adopt.   Where concealment itself is so elevated, it necessarily remains effectively inviolate – except for very narrow allowable disclosures.  For example, requiring disclosure of campaign messaging may be allowed  for the period (only) just before an election.  It would interfere with the primal “concealment right” that some have elevated, to abridge it to any degree beyond a clear “compelling state interest to do so” and even there, only where there are “no less restrictive” means of accomplishment and where it is narrowly tailored to achieve that state interest.    There are many examples of how this fundamental rule of Constitutional interpretation will hamstring transparency and allow special interests to hide with effective impunity.   For example, concealment of Internet lobbying sources will be protected so long as the message “does not urge a particular vote.”

These are but several of the many expected “narrow tailoring” limits required for any restriction on a First Amendment (Fundamental Liberty Interest) right.  Declaring such a right as occupying the First Amendment Liberty Interest – necessarily triggers this regime of “strict scrutiny” of any limitation to it under Constitutional Law doctrine.  And the irony here is that when concealment itself is elevated to that Fundamental Liberty Interest status, it necessarily supersedes the contrary free speech right to know who is talking.  Concealment may then be limited (or disclosure compelled) only sparingly.  Instead of promoting disclosure as the primary First Amendment-serving value, and concealment as one that may be allowed as a compelling state interest where retaliation or other factors commend it, the Dendrite rule reverses the ranking.   Indeed, an approach preferable to such a perverse hierarchy would posit concealment and disclosure as, at the least, co-equal First Amendment elements and allow a more equitable balance.

The “concealment as paramount”  rule of law will not only prevent school rules to discourage anonymous accusations about who 14-year-old Dolores is sleeping with, but will on the larger political front prevent statutes and rules to let the electorate know who (or which corporation operating now as a “person”) is publishing an attack.   Those promoting concealment out of sympathy for “whistleblowers” do not appreciate the reality that when we conceal, we do not know they are innocent angels.  They can be anyone.   The whole point behind concealment is that we allow it to be anyone.  We do not know, and we hobble ourselves to preclude us from knowing, by the presumption that concealment is the Free Speech rule unless a high burden is met.  And, as noted, that burden is often catch-22 precluded (e.g., if you knew who it was you could show actual knowledge of falsity to qualify as libel or meet the other Dendrite tests, but you do not, so you cannot).

We do not know that the speaker is accurate, and do not know his often profound economic or personal bias.  Political accusations commonly denigrate those who support a child safety net or medical coverage or any other public policy not consonant with short-term corporate profit considerations.   Many of those with such an economic bias will gladly assure each other that they are the whistleblowers, seeking to stop socialism or domination by the “moochers.”   More relevant, those behind some of this messaging and influence know that were their identity to be disclosed, it would undermine message efficacy precisely because the electorate will discount the speaker, knowing his identity and economic interest.   Increasingly, the public lacks that information – knowledge essential to transparency and democratic efficacy.   The balance between influence of the body politic by those with an immediate profit-stake and those of us who necessarily represent the diffuse and long term interests of children, is much affected negatively by policies that favor speaker concealment.

Questioning U.S. Gun Policies – Who is Representing Us Anyway?

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This week appears to be a critical week in the efforts to move forward with common sense gun policies.  Unfortunately, President Obama’s calls for a ban on assault weapons and larger capacity ammunition magazines have completely stalled.  While not the focus of this week’s blog, I would be remiss to report this news without taking a moment to express my deep frustration and confusion.   In particular, how is a ban on large capacity ammunition magazines completely off the table?  What happened to our outrage after the shooter in Sandy Hook killed innocent children and school personnel by firing 154 bullets in less than five minutes through the use of his 30-round clips?  How many lives could have been spared if he had to reload more frequently?

Let’s talk about the measures that are currently on the table – efforts to strengthen current background check requirements – and the policies that are influencing the lobbying against these efforts.  Supporters would like a universal background check and would like to close a loophole in current law that requires no such check for sales at gun shows or through private sellers.  As reported by NPR, the NRA has previously expressed support for expanding background checks but since the Newtown shootings, the organization has been staunchly opposed to the idea.  Other gun rights advocates have tried to find a bit of a more balanced approach by expressing they might be open to expanding background checks to private sellers and sales at gun shows, but are against keeping records of those sales because that could lead to the creation of a national gun registry and they fear what the government will do with that information.

To put into context the NRA and other gun advocates’ lobbying on the current efforts to expand background checks, let’s look more closely at some of their recent lobbying efforts.  According to the Center for American Progress, since the 1970s, and increasingly over the past decade, the NRA and others in the gun lobby, have pushed Congress to incrementally chip away at the federal government’s ability to enforce gun laws and protect the public from gun crime.  The Bureau of Alcohol, Tobacco, Firearms and Explosives, or ATF, is the Federal licensing body for firearms dealers. Among other duties, the ATF is responsible for protecting our communities from violent criminals, the illegal use and trafficking of firearms, and ensuring that federally licensed firearms dealers comply with the laws and regulations that govern their businesses.  Since 1979, the ATF has been prohibited from creating a centralized database of gun sales records already in its possession.  One portion of these records includes the, on average, 1.3 million records ATF received each month from out-of-business dealers.  ATF is forced to keep these records in boxes in warehouses or on microfiche.  Because there is no centralized electronic database of gun records, when a gun is found at a crime scene, ATF agents must take days, or even weeks, sifting through hundreds of thousands of paper records, making numerous phone calls to the manufacturer or dealer that first sold the weapon, and relying on records kept by federally licensed firearms dealers in an attempt to identify the weapon’s owner.  Not surprisingly, this delay severely frustrates criminal investigations.  Why does the NRA and its allies want to thwart criminal investigations?  Further, considering there were more than 333,445 firearms traces in 2012, how much money could be saved by digitizing the records rather than paying for the man-hours required to complete the complicated and time-consuming paper search that would otherwise be completed with a few keystrokes and clicks of a mouse?

Thanks in no small part to the NRA’s lobbying efforts, since 2004, the FBI has been limited in their ability to maintain records that would help identify people who buy guns for another person who can’t legally purchase a gun, otherwise known as straw purchasers.  Currently, the FBI may only retain records of individuals who have successfully passed the National Instant Criminal Background Check System for 24 hours.  This limits law enforcement’s ability to recognize patterns that often suggest straw purchasing and gun trafficking.  The quick destruction of these records also removes ATF’s opportunity to proactively identify corrupt gun dealers who falsify their records to enable straw purchases.  Prior to 2004, the FBI retained these records for 90 days, allowing law enforcement the opportunity to look at the data for indications of criminal activity and to ensure the background check system is functioning properly and not being misused.  Why are the NRA and its allies thwarting the ability of federal agencies to be alerted to criminal activity before public safety has been jeopardized?

Perhaps most troubling is the NRA’s continued efforts to prevent any research into gun violence or into efforts to make guns and their use (and users) safer.  At the urging on the NRA, in 1996 Congress essentially silenced any federal public health research into firearms injuries by prohibiting the Center for Disease Control (CDC) from spending federal dollars on research that could be used to “advocate or promote gun control.”  CDC funding for firearms injury and prevention research has fallen from an average of $2.5 million annually between 1993 and 1996, to around $100,000 annually in 2012.  In 2002, in a rare move of funding for research, Congress appropriated $1.5 million to develop a National Violent Death Reporting System (NVDRS) designed to provide data on violent deaths in the United States in the hopes that the data will allow the development of strategies to reduce and prevent such deaths.  Unfortunately, the NVDRS is limited to 18 states and the NRA and their allies have pushed for restrictions limiting the data as it relates to gun deaths.  Again, why does the gun lobby want to limit publicly available information?  Why can’t we know what it takes to make guns safer?  This attitude is particularly troubling in light of a recent report by Bloomerberg indicating that gun deaths will likely exceed traffic fatalities by 2015.  The fall in traffic deaths has resulted from safer vehicles, restricted driving privileges for unsafe (young) drivers, seat-belt and other safety laws – all policies driven by our well researched information.  By contrast, the gun lobby’s successful push to limit up-to-date public health research into gun violence and gun-related injuries and deaths has resulted in  a dearth of information in this area and legislators and policymakers are left to guess how to best address these issues.

If you, too, think the time has passed for the NRA to be creating our national gun policy, I urge you to do something now.  The Children’s Defense Fund (CDF) is spearheading a sign-on letter in support of stronger laws to protect our children from gun violence.  Please consider signing on.  Or, go online, here, to send a letter to your representative – just fill in your name  and address and an email will be sent to your representatives expressing your desire for common sense gun safety laws.  You can also check out http://www.sandyhookpromise.org, a website created by members of the Newtown Connecticut community, together with parents of the victims at Sandy Hook to address gun violence.

Author: Christina Riehl, Senior Staff Attorney at CAI

The Affordable Care Act (ACA) and Former Foster Youth

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When the Affordable Care Act (the ACA) was signed into law, it provided a valuable benefit to young adults by allowing them to stay on their parents’ medical insurance until they reached the age of 26. The ACA’s provision allowing children to stay on their parents’ health insurance to age 26 is one of the law’s most popular provisions, for good reason. It takes most people some time to finish college and establish a career or to find a job that would allow them to obtain and maintain quality health care coverage. The ACA allows young adults to stay on their parents’ insurance and have vital health care coverage throughout college and it gives them time to establish themselves without having to worry about the catastrophic health care bills that would result from a health crisis.   A medical crisis that results in a large medical bill and the often extraordinary debt associated therewith is a difficult issue with which to be burdened at any age, but young adults are especially vulnerable. Young adults had the highest rate of uninsured of any age group and the lowest rate of employee provided coverage when the ACA was signed into law.  Incurring a burdensome medical debt at such a young age can hinder a young adult over the important years when he or she is embarking upon a career, obtaining an education, or otherwise attempting to establish a livelihood.

Given all of this information, Congress left one group of young adults waiting for this coverage. Foster youth have had to wait nearly four years longer than their peers who were not in foster care.  This, even given that the state is the parent of these youth, they are our children. These youth, our children, often have chronic health issues associated with the abuse or neglect which was the reason for their entry into foster care. Many have mental health or emotional health issues, and they do not have access to the familial and social safety net on which their peers can rely. That the ACA has made this group of former foster youth wait for the same coverage their peers enjoy is shameful.

After a nearly four-year wait, beginning in January of 2014, states will be required to provide Medicaid coverage to youth who are under 26 years of age and were in foster care and receiving Medicaid when they attained 18 or such higher age at which the state’s federal foster care assistance ends under title IV-E of the Act (when they reached 18 or aged out of foster care).  Despite the wait, this is excellent news for young adults who were in foster care. Particularly because anyone who meets these requirements is eligible for Medicaid, even if an individual is age 23 and has not had Medicaid coverage for years, if that individual meets the requirements, he or she can obtain Medicaid coverage.

Unfortunately, the Department of Health and Human Services (HHS), which is the agency that creates regulations for the implementation of federal laws, is proposing a regulation that would require states to provide Medicaid to young adults ONLY in the same state in which they were in foster care and not to a young adult who, for example, is attending college in one state but aged out of care in a different state. This is a glaring inequity. The same restriction does not apply to young adults who enjoy the benefit of their parents’ insurance, have the benefit of the familial safety net that parents’ provide, and did not age out of the foster care system.  Given that former foster youth are a very mobile population; this proposed regulation is of concern. Several foster care and children’s advocacy organizations have urged the department of Health and Human Services to issue regulations that would require states to provide foster youth with access to Medicaid coverage, regardless of the state in which they choose to reside.  The final regulations will be released later this year.

You can learn more about this issue from these sources:

Proposed Rule

CAI’s Comments

Children’s Defense Fund: Joint letter sent to HHS regarding the proposed rule

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Author: Christina Riehl, Senior Staff Attorney at CAI

Re-alignment or Retreat from Responsibility?

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Looking back on legislative developments having an impact on California’s children in 2012, it is hard not to notice two things that smashed into each other:

  • The State has effectively ended any funding for child welfare, instead “re-aligning” that funding responsibility to California’s 58 very different counties and assuring them additional programmatic flexibility.
  • Outside news reports and audits excoriated the child welfare system in Los Angeles County, the State’s largest.

As the Los Angeles Times wrote in February of 2013 about an internal L.A. County review done in 2012, a “stifling bureaucracy” was impeding effective child welfare:

“Investigations tend to rely on bureaucratic rules, not common sense and close observation, the report found. The department has issued more than 4,000 pages of policies detailing how social workers should do their jobs.

‘Creating social work road maps with this level of ‘how-to’ is like expecting a therapist to use a script that tells her what questions to ask and what responses to expect from her client in a therapy session,” the report said.

Lowell Goodman, a spokesman for the union representing the social workers, said, ‘Even the finest social workers in the country could not perform their best work in this system.’

‘Paperwork and the relentless attention to following [thousands of pages of] policies supersedes hands-on social work in importance,’ he said.”

An audit by the State Bureau of State Audits found similar problems and has noted that the County has not addressed them. [1]

County failures in administering child welfare are not new.  Sacramento County, for example,also hired an outside consultant to review its operations after a spate of grisly child deaths were reported in the Sacramento Bee.  The consultant in its final report in 2009 identified a large number of bureaucratic impediments to social worker effectiveness that imperiled the lives of children. For example, the Sacramento County report found:

“The County’s guidelines for its social workers contain 167 policies spanning more than 1,300 pages. Over 60 percent of these guidelines were last created or updated more than five years ago. CPS’s existing guidelines include a mix of outdated or conflicting guidance, caused, for example, when the division created a new guideline without revoking or amending a prior guideline document related to the same procedure.”

“The current CPS requirements and  operating structure hamper its ability to provide child welfare services effectively and efficiently.  Moreover, inconsistent procedures and failure to follow best practices have resulted in negative  outcomes for some children in the County’s child welfare system. Utilizing poor practices has also resulted in families and children not receiving the best services to meet their needs.  Consequently, the issues within these families that brought them into the child welfare system in  the first place may continue to be unaddressed, leaving children at risk. Improving CPS  operations and processes is imperative if the County is to address these issues and optimize its  service delivery to families and children in the future.” 

Likewise, in response to news stories in Los Angeles County about CPS performance, SEIU Local 721 in 2011 authored an exhaustive and detailed set of recommendations for improving and streamlining operations and enhancing social worker productivity. Most of the suggestions could be implemented within existing resources. Suggestions included how to eliminate duplicative paperwork, improve coordination between departments and employees, and shift staffing to ensure greater productivity and job satisfaction. But, these suggestions have been largely ignored.

And all of these county-level failings took place during the world prior to re-alignment, when the State had the power of the purse to influence policy.  Now, while the federal government continues to look to the State as the one throat to choke when it comes to ensuring its Title IV-E money is well spent, the State has less of a central role in guiding child welfare policy than perhaps ever before.

What is clear is this:  only until State and federal governments get serious about monitoring how federal tax dollars are spent will California’s abused and neglected children obtain the level of care and services they deserve.

 

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States Need to Improve Their Public Disclosure Practices

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We have previously blogged about the importance of shining light on the tragic deaths and near deaths that occur from child abuse and neglect.  Now, it is time for CAI to dig deeper in our work measuring how states comply with the federal mandate found in the Child Abuse Prevention and Treatment Act (“CAPTA”) to “allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality.” (42 U.S.C. § 5106a(b)(2)(A)(x).)

Since 2008, CAI, together with First Star, has graded each state on its policies regarding the public disclosure of information when abuse and neglect plays a role in the child’s death or near death.  Our most recent report showed some positive results.  Thirty states plus the District of Columbia received a B- or higher when graded on the enforceable language of their state policies.  At least ten states meaningfully improved their policies between the releases of our two reports.  Given these improvements, CAI and First Star decided it was time to start looking at how these policies work when implemented.

We have set out to request information regarding fatalities and near fatalities that occur due to child abuse and neglect from all states that received a B- or higher.  In theory, or at least, on the books, these states have policies that should provide for the easy release of pertinent information that can help lead to the systemic reform needed to improve the child welfare systems in these states.  Unfortunately, we are finding that merely having good policies on the books does not, necessarily, correlate with releasing adequate information in a timely manner.

Retrieving pertinent and relevant information from these thirty states and the District of Columbia has proven to be an incredibly arduous task.  In each case, we, who have studied and worked on this issue for more than 5 years, sent letters quoting the individual state’s policy to the individual we believed most appropriate to answer our request.  While a few states responded with great information in a fairly timely manner, such a response has by no means been standard.  Often, our request for information is countered with a demand for payment in order to receive the documents – payment which has sometimes proven cost-prohibitive for our advocacy institution and which makes the idea of true public availability of the information merely a pipe dream.  We’ve also received several responses indicating that the state is not required to release information regarding fatalities or near fatalities due to child abuse and neglect – a response that is surprising given that with each request we quoted the state policy that requires the release of such information.  Responses indicating it will take several months for the requested documents to be released are also not uncommon.  And, of course, these are what we’ve heard back from the states that actually responded.  Several states have not replied to our request for information at all.

This disappointing response is what we are receiving from states that we have deemed to have fairly good policies regarding the release of information.  What about those twenty states that received a C, D or F?

This lack of information is particularly troubling given that there is a federal law requiring the release of information about child abuse and neglect that has led to a fatality or near fatality —information that can lead to changes in policy that will save the lives of children in the future.  CAI and First Star will continue our work to demand information that can be used to save the lives of children be appropriately released to the public in a timely manner.  We will be using the information we gather through our inquiry to publish a report regarding how states are doing on the implementation of their public disclosure policies regarding information of fatal or near fatal child abuse or neglect, and we will continue our advocacy on the state and federal levels to improve laws regarding disclosure and to improve the implementation of those laws.  If you also see this as a concern, I encourage you to demand that your representatives adequately enforce the federal policy regarding disclosure of information about child abuse and neglect that has led to a death or near death and any state policies that have been put in place to implement this CAPTA requirement.

Author: Christina Riehl, Senior Staff Attorney at CAI

The Achilles Heel of Liberalism: Unfunded Liability for Future Generations

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By Professor Robert C. Fellmeth

Most child advocates are aligned with political liberalism.  Some of this is the result of a conservative trend toward radical self-indulgence – the notion that the greatest good comes from categorical withdrawal of government.  The concept here is akin to the idea skewered by Voltaire in the classic essay “Candide.”  The religious zealots of his time embraced the idea of “optimism” – all is right with the world no matter how it appears or which loved one has just cruelly died – because God controls all and He must have willed it.   We have some conservatives who adopt a similar idea about the current market – whatever it produces unconnected to state interference is “the Good,” and any alteration is “interference” with that grand design.

Of course, the market is largely a creation of man, and of particular humans often seeking the protection of the wealth they inherited.  There are clear advantages to a functioning market – bottom up determination of outcomes, efficiency incentives, allocation according to consumer preference, et al.   But there are also flaws, and the state properly intervenes to restore its function absent those flaws, or adjusts it to ameliorate them.   And one flaw is the need for humanity to “pass down the line” the achievements of each generation to the ones that follow it – a goal involving long term impacts often missing from market assessment and incentive – unless it is provided either through the rules of the market (which are created by man) or by additions to its previous design.

But the irony of this meritorious critique of conservatives is that – as to a major aspect of intergenerational equity – the conservatives seem to recognize a market flaw that is unseen by liberals.  The latter are rather infected with the malady of the Dire Straits lyric “Money for nothing, and chicks for free.”   In the middle of their blind spot is the undeniable fact that we of the Boomer generation are imposing a series of unfunded liabilities on our legatees that is unprecedented in human history.

There are two types of pension/medical plans: “defined contribution” and “defined benefit.”   In the former, one deposits money in an account and then benefits are drawn on its value later.  That is an ethical arrangement.  Those who benefit, pay.  In the latter, one promises a level of benefits, and then provides them at a later time – whatever their cost and whatever the amount deposited by the beneficiaries to provide them.  This last alternative has been increasingly exposed for its seminal flaw: the imposition of a possibly untenable obligation on future generations to provide promised benefits.  Liberals often talk of the “obligation” to pay social security and MediCare benefits to those who contributed money for both.  But it is a Big Lie, for they have not contributed close to the amount promised and expected in benefits.

Former Comptroller General David Walker projected in 2008 an accumulating deficit, including Medicare and Social Security, at over $52 trillion in unfunded obligations (at current taxation/collection) over the next three generations.    These and related obligations (Medicare, Medicaid, Social Security and debt interest) already subsumed 48% of the federal budget in 2006 and now make up the majority of it.  Discretionary spending has declined from 67% of the budget in 1967 to less than 38% today.

And it now appears that the overall unfunded liability projection has been overly conservative.  More recent data suggest that the total projected debt may not be $52 trillion, but over $60 trillion.  Those additions include a $4 trillion increase in the national debt since the 2006 data used by the Comptroller General, and the pharmacy and other benefits now going to the elderly in Medicare.  Moreover, this last source is especially likely to push the actual total well over $60 trillion, since it comes from a source of irresistible growth with little to moderate it.    Indeed, subsidies for the elderly are cast as “their right live, and with dignity.”  (Similar sentiments do not appear to persuade when applied to the 8 million uninsured children at 1/7th the per capita cost).  Any limitation on medical benefits to those in their last several years of life as “rationing” health care, or government “death panels” that will kill Grandma.  Our point is not that benefits should not be provided, perhaps generous benefits, but that we should PAY FOR THEM, and not assess our children – just as our parents did not assess us, they rather invested heavily in the rebuilding of Europe, in our defense, our parks, our highways and airports, and our education.  We got college at low tuition and home ownership.  What are we passing on to them? The answer: less of that but a mind-boggling public debt so they will finance our care and comfort.

Nor does the likely federal “unfunded liability” of $60 trillion plus from Medicare, Social Security and federal budget deficits include unfunded, sometimes extraordinarily generous pensions for local and state employees,  utility workers and others with substantial presence in state capitals.  During the last months of 2011, a Stanford University study counting the unfunded liability for public employee pensions placed California’s total (counting not all of them) at $500 billion.   And none of this includes other financial embezzlement from our children, such as California’s system of property taxation based on  the “market value” of the property, but which caps that taxable value at just above 1977 levels for the Boomers, so they effectively pay now 1/5th to 1/10th the property taxes as do new buyers (our children).  A Boomer owned home will pay a fraction of the taxes as will his child buying a home next door with the same market value, for the same state and city services.

Nor does it include the new “back end” bond practice of funding schools and other public capital projects not over 20 years so that $100 million borrowed will cost $180 million in total to repay, but in schemes that pay it off in 50 years (after whatever is financed will likely be gone or obsolete) with the payments all loaded at the back end, and requiring not $180 million to finance $100 million now, but $950 million or more.  All to be paid by our children and grand children.

Forgetting about all of these deeply unethical state and local deferrals, how much is $60 trillion to be due from the federal funds?  Consider how much $1 trillion is.  Take $ one million every day since the birth of Christ, through the Roman Empire, the Medieval era, the Renaissance, the Age of Discovery, and the independence of the United States 235 years ago… that $ one million every single day, week after week, month after month, year after year, century after century.  As we sit here today, the total would not reach $1 trillion.  It will take almost another one thousand years to reach it.  Think about that.

The federal and state debt for the Boomers and their children will require our grandchildren and their children to spend well over $25,000 per household per year in current spending just to carry it (without reduction) at a modest 4%.  That amounts to about one-half of the family median income – before other taxes.  Can such a disaster actually be in the offing?  If so, why is it only discussed by expert economists in obscure reports or neo-conservatives – who themselves avoid two of the real cost sources (Social Security and Medicare) and blame it all on the federal deficit and public pensions?  But all four of these generational sources of “takings” are involved.  And the two exempt from complaint (MediCare and Social Security) are by far the largest.

Changing demographics in terms of longer lives and smaller families make these future consequences both more likely and of greater concern.   A much reduced population of young and producing adults per elderly beneficiary will now be paying their unfunded liability – adding to that burden for this smaller number.  The pyramid allowing four or five persons in productive adult years to pay for each senior citizen is narrowing.  It is less a graduated pyramid than a Washington’s Monument spike – with a lot of weight on the bottom blocks.

Adding to the concern is the disastrous consequence of either another economic downturn or even a small increase in required interest payments to finance these current and future deficits.  A 2% increase in the amount needed to attract investment in the government bonds that provide the backing for all we print would have a momentous impact on the amount we shall owe for its repayment.  And as uncertainty about full repayment grows, that interest rate will rise, exacerbating the cost, further jeopardizing repayment, and producing the kind of spiral that we do not seem to recognize until it happens.

How ironic that the major source of current security for the U.S. is the full faith and credit from the People’s Republic of China, a totalitarian regime.  Our officials rightly warn of the pitfalls of dependency on Middle Eastern nations and the OPEC cartel, but less attention is paid to our supine posture before the nuclear weapon-holding Communist regime that is now our largest national creditor.  The share of U.S. debt held by foreign investors was 28% as recently as 1996.  It is now over 50%.

Child advocates properly have a long range perspective.  We essentially represent the future.  And we measure the merits of policies by imagining how our grandchildren and their grandchildren will judge what we are doing now.  Liberals like to think that is what they do.  Not on this seminal and defining issue.  Not at all.

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Children and Youth Deliver Clear Message to President: Hear Our Voice!

in the leavesCROften ignored in the political discussion, America’s young people are asking that their voices be heard in Washington, and they delivered heartfelt messages to the President in an “Inaugural Address” of their own.

In a video message: “Hear Our Voice: A Children’s/Youth Inaugural Address,” kids aged 5-25 list college affordability, gun control, hunger, health care, and K-12 education among the issues that they want President Obama and Congress to address in the new term.

The video is not scripted, and features genuine youth voices filmed in elementary, middle and high schools in Washington, Boston, and New York. It also includes individual videos uploaded by youth across the country.

The video can be seen and downloaded at: www.sparkaction.org/inaugural or http://bit.ly/kidsinaug. Please take a look and share! And upload your own messages to the President!

The video is a co-production of the Children’s Leadership Council (CLC) and SparkAction.

“America’s young people are asking that their voices be heard in Washington. They want to know if the President is listening, if we are all listening,” said Caitlin Johnson, co-founder & managing director of SparkAction, a journalism and advocacy site to mobilize action by and for young people. “Young people are savvy future voters. They not only see the problems in their communities, they have solutions. We applaud policymakers for listening to their concerns and giving them a chance to share their ideas, and hope this sparks more of that.”

The video concludes with a call to give youth “a seat at the table,” by creating a Presidential Youth Council. Such a Council will give young people—using their first-hand experience with systems like education, child welfare, juvenile justice, public health and school lunch programs, etc.— opportunities to bring the issues they care about directly to policymakers in Washington, and help shape the policies and programs that affect their lives.

“As President Obama lays out his plans for the next four years, young people ask him to take action on the issues that are most important to their lives,” Alan Houseman, the Chairman of the Children’s Leadership Council, the nation’s largest coalition of child and youth organizations, based in Washington, DC. “You can see in the video that they are very concerned not only about their own future but also about the future of their friends and families.”