Perverse Security Incentives

An employee of Whole Foods in Ann Arbor, Michigan, was fired in 2007 for apprehending a shoplifter. More specifically, he was fired for touching a customer, even though that customer had a backpack filled with stolen groceries and was running away with them.

I regularly see security decisions that, like the Whole Foods incident, seem to make absolutely no sense. However, in every case, the decisions actually make perfect sense once you understand the underlying incentives driving the decision. All security decisions are trade-offs, but the motivations behind them are not always obvious: They're often subjective, and driven by external incentives. And often security trade-offs are made for nonsecurity reasons.

Almost certainly, Whole Foods has a no-touching-the-customer policy because its attorneys recommended it. "No touching" is a security measure as well, but it's security against customer lawsuits. The cost of these lawsuits would be much, much greater than the $346 worth of groceries stolen in this instance. Even applied to suspected shoplifters, the policy makes sense: The cost of a lawsuit resulting from tackling an innocent shopper by mistake would be far greater than the cost of letting actual shoplifters get away. As perverse it may seem, the result is completely reasonable given the corporate incentives — Whole Foods wrote a corporate policy that benefited itself.

At least, it works as long as the police and other factors keep society's shoplifter population down to a reasonable level.

Incentives explain much that is perplexing about security trade-offs. Why does King County, Washington, require one form of ID to get a concealed-carry permit, but two forms of ID to pay for the permit by check? Making a mistake on a gun permit is an abstract problem, but a bad check actually costs some department money.

In the decades before 9/11, why did the airlines fight every security measure except the photo-ID check? Increased security annoys their customers, but the photo-ID check solved a security problem of a different kind: the resale of nonrefundable tickets. So the airlines were on board for that one.

And why does the TSA confiscate liquids at airport security, on the off chance that a terrorist will try to make a liquid explosive instead of using the more common solid ones? Because the officials in charge of the decision used CYA security measures to prevent specific, known tactics rather than broad, general ones.

The same misplaced incentives explain the ongoing problem of innocent prisoners spending years in places like Guantanamo and Abu Ghraib. The solution might seem obvious: Release the innocent ones, keep the guilty ones, and figure out whether the ones we aren't sure about are innocent or guilty. But the incentives are more perverse than that. Who is going to sign the order releasing one of those prisoners? Which military officer is going to accept the risk, no matter how small, of being wrong?

I read almost five years ago that prisoners were being held by the United States far longer than they should, because ''no one wanted to be responsible for releasing the next Osama bin Laden.'' That incentive to do nothing hasn't changed. It might have even gotten stronger, as these innocents languish in prison.

In all these cases, the best way to change the trade-off is to change the incentives. Look at why the Whole Foods case works. Store employees don't have to apprehend shoplifters, because society created a special organization specifically authorized to lay hands on people the grocery store points to as shoplifters: the police. If we want more rationality out of the TSA, there needs to be someone with a broader perspective willing to deal with general threats rather than specific targets or tactics.

For prisoners, society has created a special organization specifically entrusted with the role of judging the evidence against them and releasing them if appropriate: the judiciary. It's only because the George W. Bush administration decided to remove the Guantanamo prisoners from the legal system that we are now stuck with these perverse incentives. Our country would be smart to move as many of these people through the court system as we can.

This essay originally appeared on Wired.com.

Posted on March 2, 2009 at 7:10 AM • 54 Comments

Comments

MatMarch 2, 2009 7:39 AM

When Calvin's mother told him to get into the tub we find him sitting there saying saying something along the lines of "I'll obey the letter of the law, but not the spirit" (forgive me for not finding the comic for the exact quote). His mom yells and we find that he got in the tub without turning on the water.

Regardless of regulations that exist, applying any law, regulation or statute blindly without context is prone to producing error and hurting those who are innocent. People need to realize this, but seem more than willing to just go through the motions.

RickMarch 2, 2009 8:52 AM

@Mat agreed. IMHO one of the problems is that employees are often told to do something because "It's policy" without being informed what the rationale behind that policy is. They can't do anything except blindly follow guidelines because they're not informed about the security context of those guidelines or empowered to make decisions that take the big picture into account.

bobMarch 2, 2009 9:20 AM

Here's one I don't understand: The local SHERIFF does not accept personal checks, specifically for a handgun license. (fyi this is a 2-step application process. You come in, give them money, submit a 4-page form of your history and stuff, they take your fingerprints. ~30 days later they call you back in to get the license if you passed all the checks.)

It seems to me that if someone is going to write a bad check, then my first choice for who I want them to do it to (well, would be my ex-wife; but after her) would be the sheriff; he would essentially be running a honeypot for bad check writers. The check will have had time to bounce during the process, so when they are called back in to get the license, they can instead be prosecuted for check fraud, thereby getting them "off the streets" and protecting the rest of us from them.

But by requiring payment by money order the sheriff is passing the "filter out bad check writers" function to the post office (or quick store) who does not have power of arrest, thereby enabling bad check writers to keep ripping people off (and in this case carry a gun, too).

JeroenMarch 2, 2009 9:22 AM

@bob:

That's LA Security, or Lazy Ass Security. You recognize a risk, and know what to do about it, but can't be bothered, so you offload the problem to someone else, who doesn't have a choice.

MarcMarch 2, 2009 10:00 AM

No touching could be a security policy for the employee and to protect from a workman's comp lawsuit should the shop lifter be violent or armed.

GregMarch 2, 2009 10:05 AM

@bob

Seriously. Does anyone still use checks? I haven't used one since the mid 90's.

bobMarch 2, 2009 10:26 AM

This is the same philosophy at Pizza Hut where delivery drivers are not allowed to be armed. If a driver gets killed, no big deal (to PH). But if a driver kills someone else (justified or not), then Pizza Hut gets sued for allowing them to be armed.

Ditto for companies with policies not allowing employees to be armed at work. Every mass victim public shooting has been someplace where people are NOT allowed to be armed (Columbine, Mumbai, Ingalls Shipbuilding, U of V etc); yet companies defy the arithmetic and have prohibitionist policy because they are not held responsible for their own employees wellbeing, just that of others; so employee safety is an externality.

Clive RobinsonMarch 2, 2009 10:29 AM

Laws / rules / policy should be based on equitability, the same as any contract should be (which is in effect what they are). And importantly any considerations or penalties be proportianate (ie fair).

As in all contracts they need to be based on decidable (logical) tests that are not subject to independent variance (of measurands etc). So that clear decision trees can be formed (and easily understood by those to whom they are addresses).

Importantly they should not conflict with other laws, rules or policies, or alow "dead lock", "looped dependencies" or "unspecified scope".

Further within them they should have suitable provisions for mediation, arbitration and suitable oversite and review processes.

Importantly they all require an exceptions process that is it's self codified (such as when emergancy responders or others may break rules limiting speed or entry into a property etc).

If not a number of things can and will go wrong such as being open to explotation by any of the parties involved.

As for those in limbo in Gitmo, there is obviously significant flaws in the rules of their aprehension and continued internmant.

For hundreds of years those accused have had the right to defend themselves against their accusers infront of an independant arbiter within a reasonable period of time.

Therefore the sooner they are brought within US juresdiction for trial or deported the better for all (assuming the deportation does have the appropriate safeguards).

TmanMarch 2, 2009 10:44 AM

The larger context of the Gitmo prisoners is not addressed in Mr. Schneiers essay, mainly that many of these prisoners are unlawful combatants intent on inflicting serious harm to innocent people, and they were captured on a battle field, not a alley in Chicago. The idea that because we caught them means they deserve constitutional protections that are afforded to all US Citizens is not only ludicrous but dangerous.

I understand the incentives argument with the Whole Foods example, but I think it's a stretch to make the analogy that robbing some organic apples is akin to crashing airliners in to buildings in terms of how the incentives play out.

There is no easy answer to what to do with many of these individuals. And some of the ones that were released have already showed up on battlefields attacking American troops again. The idea that putting them through the US court system will somehow create an non-perverse security incentive doesn't hold up to the facts.

RichMarch 2, 2009 10:52 AM

''no one wanted to be responsible for releasing the next Osama bin Laden.'' Sure, but who will take responsibility if our Gitmo has created the next ObL? Perhaps someone who isn't inside, but is sympathetic?

kangarooMarch 2, 2009 11:05 AM

"Which military officer is going to accept the risk, no matter how small, of being wrong?"

So we assume that everyone is that bastard creature, the "rational economically self-interested man" that the economists invented?

Only narcissistic, unambitious mental midgets fall in that category. Fortunately, not everyone has been reduced to that, as of yet. We have had military officers end their military careers rather than cooperate with the farce of the military tribunals. We have had technicians face the wrath of intelligence services by releasing information relating wide-spread spying.

Maybe the problem ain't "perverse security incentives" (a bastard phrase if I ever heard one!), but a diseased culture that is producing adults with the moral depth of small children?

Maybe that's where we need to look -- not at the details of bureaucratic processes, but at the broad strokes of American and European culture that is producing and promoting hordes of apathetic amoral cretins?

Ward S. DenkerMarch 2, 2009 11:09 AM

I still think it's pretty stupid that they fired an employee over apprehending a shoplifter.

Their policy about not touching customers is fine, but I fail to see how a shoplifter is a customer. You become a customer by paying for your goods, not stealing them.

An analog is that I, have my own policy about not harming others (I'm fairly pacifistic), but my opinion on that policy changes if they break into my home (I have a firearm).

Trust everyone, but cut the cards, as the saying goes.

Sam VermillionMarch 2, 2009 11:33 AM

(only addressing the Whole Foods incident)

Whole Foods might also have to considered another trade-off: getting sued by employees wrongfully terminated. This incident didn't happen on store property and the employee wasn't on the clock. But according to the Whole Foods spokeswoman, "He is still considered an employee of Whole Foods Market regardless of where he was and what was happening." That's a ridiculous, all-inclusive statement. Hope he wears his Whole Foods uniform regardless of where he is and what is happening (at home, in the shower, vacation, etc) while remembering to never touch anyone who has ever shopped (or shoplifted) at his employer's store.

At least I know where to get free groceries in the foreseeable future. I question the efficacy of deferring all shoplifter apprehension to the "special organization specifically authorized to lay hands on people." If anyone thinks that's a tenable approach, they haven't witnessed much shoplifting.

Considering that by definition shoplifters aren't customers, Whole Foods', "no touching customers," policy will soon need revising if word gets out to the right (wrong) crowd that they apply this rule to thieves as well.

Whole Foods might as well prefix their price tags with, "suggested donation."

HJohnMarch 2, 2009 11:40 AM

@Sam Vermillion: "At least I know where to get free groceries in the foreseeable future."
__________

I think that's a good point. Those willing to steal will be drawn to this grocery store knowing that no employee will even consider trying to stop them.

derfMarch 2, 2009 11:54 AM

The reason they languish is that the US has no system for dealing with battlefield detainees. These aren't US citizens apprehended in the commission of a crime, they are citizens of another country that were captured in a battle. They have no business in the US court system. They should probably be referred back to the justice system of their country of origin, but those countries are unwilling to take them back.

karrdeMarch 2, 2009 11:57 AM

WRT the example of the detainees at Guantanamo Bay:

It has been claimed that there were multiple cases of people who had been released from Guantanamo Bay, and re-captured later by American (and allied) forces committing further acts of violence against American (and allied) military and protected populations.

This series of events does indeed create an incentive against issuing further release orders.

It is still unknown how many innocent people are detained at the institution, but there seems to be hard evidence that some non-innocents were both captured, detained, released, and later re-captured.

another bruceMarch 2, 2009 11:57 AM

$346 worth of groceries in his backpack? i could see it if he had super-premium liquor or beluga malossol caviar, otherwise, that's about 100 chicken pot pies. i don't doubt that he was easier to tackle. depending on how well regarded the fired worker was in his community, and his ability to marshal it to his aid, whole foods might face an additional cost to its decision.

"shop at whole foods - where you pay for your groceries and mine, too!"

BrettMarch 2, 2009 12:05 PM

@ Kangaroo

Not a bad point. The "West" does seem to be becoming an amoral place. "As long as you don't hurt me I don't care what you do.." seems to be the way of it now. Or, as long as there is no law against it, it is ok. No, there are many things that are perfectly leagal but are completely wrong (are ethics taught anymore).

I think this is the root of many of our problems.

HJohnMarch 2, 2009 12:12 PM

@derf and karrde

Good posts. This, unfortunately, isn't a very simple problem. I think both extremes are false. We can't just bring them into our court system, nor can we just let them go (and we've tried to send many back to their countries). A sound policy for handling them will not be without flaws. But we should not just let them sit there forever.

I've always wondered what critics would really do if they were actually the ones in charge. It's much easier from the outside to say things like "minor risk" before an incident and "connect the dots" after. Once a person is responsible and accountable, their decisions become much different, and not just self preservation--also concern for others who may be harmed.

I don't fully agree with Bruce, but my opinion meets his in the middle when it comes to the fact that the equation and incentives must change.

sbrMarch 2, 2009 12:31 PM

@derf:

The problem with your argument is that there were no battles and thus there is no war (notwithstanding cheap rhetorics of a certain ex President).

But in general, you release the enemy combatants (or however one wants to call them) after the war. Failing a war, there was no reason to imprison them anyway.

The solution is simple: Give them a certain lump sum (for example $10,000 per year served) and release them. Or try them as a criminal.

mitchMarch 2, 2009 12:38 PM

@another bruce
You've never shopped at Whole Foods, have you? I've been to that exact store.

It would be very easy to get +$300 into a backback. If I saw their pot pies on sale for ~$3, I'd stock up!


Having said that, (and back on topic) firing an employee for viloating the "no touch" rule is counter productive. That sends a message to all other employees to have a "meh, no my problem" attitude - and "they won't stop me" attitude for potential shoplifters.

A better solution would be to have an all-staff meeting to clarify what the policy is, and why!

John NMarch 2, 2009 12:51 PM

@T Man -

You're following the party line with regard to the prisoners at Gitmo. There have been numerous articles regarding the nature of the methodology by which people were captured and turned over to the US.

According to the Defense Department's own records, roughly 80% of the detainees -- were not "captured on the battlefield" but rather were turned in for bounty payments. Only 8 percent of the detainees at Guantanamo were allegedly captured while engaged in hostilities against the U.S. and allied forces.

According to Lt. Col. Stephen Abraham, a military intelligence officer with 26 years of service who was one of the liaisons to the Combat Status Review Tribunals in Guantanamo, if someone had a name that was similar to a known terrorist (and worse, common in the Muslim world), ALL information that referenced that name - as a real name or an alias - was used as evidence against that detainee, without the detainee being able to see it or refute any of it to say, "Hey, that's not me."

It would seem that if the majority of people at Guantanamo were not captured while actively engaged in military operations, but, rather, were turned in for a bounty, and if the CSRT process is anywhere close to being as flawed as Lt. Col. Abraham claims, then it is likely that not only are they not guilty of being "enemy combatants" who had hostile intentions against the US, but that they may even have been subject to "enhanced interrogation techniques."

So, not only were the claims that the people at Gitmo the "worst of the worst," false, but the recidivism claims for those released were demonstrated to be false, as well. See http://law.shu.edu/administration/public_relations/press_releases/2009/shl_defense_dept_wrong_on_gtmo.htm.

DavidMarch 2, 2009 1:08 PM

Isn't this really an employee education issue?

I work at a bank, and we are told the following about a robbery: "Let the person steal the money, do what they say. It's not worth your life."

Wouldn't it be best to have Whole Foods simply tell their employees: "If you see someone stealing ask them to put it back. If the run away, or refuse do not confront them further, but call the Police".

Firing the Employee was the wrong move, but he/she probably did not have adequate training in this issue, which is Whole Foods problem.

AnyaMarch 2, 2009 1:46 PM

RE: Whole Foods incident--on the face of it, yes, it does sound absurd. But here are a few points to consider:

- You are an employee of your employer 24/7. If I am out with friends on a Saturday night, and they ask me who I work for, I tell them "XYZ Company," not "nobody at the moment, but when I go in on Monday I'll be working for XYZ Company." You may not be on the clock, but you are still an employee and thus bound by your employers' policies, which you agreed to when you went to work for them.

- However, I'd say that a customer is probably only a customer for as long as they are in the store or the parking lot, whether they decide to actually buy something or not.

- Every retail establishment I have worked for in the past has had something along the lines of a "no heroes" policy, meaning, don't attempt to stop a thief at work because you never know when they will be armed. Your life is worth more, to both you and to the company, than anything a thief could carry out of a store. Yes, perhaps the Whole Foods policy was badly worded or not well-enough explained, but I think in general it is a perfectly reasonable policy.

- Your individual response to a thief can and SHOULD differ depending on whether you are at home or not. If you are an employee or a customer watching a robbery in progress, yes do what you can to thwart the thief *without putting yourself in harms' way*. However, at home, your life may well be worth less to you than your childrens' lives, therefore it may be appropriate to be more aggressive. Being an owner of a store probably falls somewhere in the middle.

When this is all said and done, however, I am not sure that firing the employee for violating policy was the right thing to do. Zero-tolerance policies are rarely effective in the way they mean to be; a less harsh punishment was probably warranted. However, I doubt firing them was unconstitutional or even wrongful termination.

ChrisMarch 2, 2009 2:13 PM

A further point about the shoplifter is that the cost will not be borne by Whole Foods, it will be passed on to the customers. The only business issue is if Whole Foods loose more to shoplifting than other retailers.

EmployeeMarch 2, 2009 2:29 PM

@Anya
"You are an employee of your employer 24/7... You may not be on the clock, but you are still an employee and thus bound by your employers' policies, which you agreed to when you went to work for them."

I don't agree. While you may be an "ambassador" for your employer off hours, you are not bound by their policies 24x7. For example, if I get hurt while I am not officially "at work", do I get to claim workman's comp? Nope.

NoTouchMarch 2, 2009 2:36 PM

Regarding Whole Foods, from what I have read, their "no touch" policy could have other ramifications if taken "to the letter" by employees (who may be even more cautious now that an employee was fired).

Seems that Whole Foods could be opening their stores to all sorts of crimes against their customers (i.e. mugging, assault, etc.), since the criminals now know the store employees will be fired if they tried to intervene.

TmanMarch 2, 2009 2:44 PM

@ John N.-

"According to the Defense Department's own records, roughly 80% of the detainees -- were not "captured on the battlefield" but rather were turned in for bounty payments. Only 8 percent of the detainees at Guantanamo were allegedly captured while engaged in hostilities against the U.S. and allied forces. "

So you believe 80% of these detainees were just bounty captures? I know that the "Dirty 30" were some of the first held at gitmo, and while they were just bodygaurds for Bin Laden, and they may have not been on an actualy battlefield per se, the idea that they were some innocent individuals who had no participation in enemy operations with the Taliban or Al-qaeda is hard to imagine.

Abu Zubaydah, Ramzi bin al-Shibh and Al Hajj Abdu Ali Sharqawi were picked up in Pakistan and confirmed members of Al-qaeda who were planning further attacks.

Abu Bara was supposedly another pilot for the 9/11 attacks, and he was captures outside of an actual "battlefield".

The list goes on and on.

All of these detainees are fighting a war against the US and the West in general. They choose not to use uniforms or proceed through conventional warfare because they know they can't win that battle. They may not be "enemy soldiers" in the traditional sense, but they are certainly enemies, and they would be the first ones to admit they are "soldiers of God".

They do not fit the criteria of those non-citizens of the US who deserve constitutional privileges.

HellfireMarch 2, 2009 2:53 PM

I took a class on the history of the Copper Country (Michigan). One thing I had never thought about is how people 100 years ago believed in accidents and acts of god, whereas nowadays fault must always be placed on a person or corporation. Miners would get crushed under rock and usually it would be determined that it was his fault for not properly checking his work area, rather than negligence of safety practices by the mining company.

I hate how our society has become so fixated on finger pointing and lawsuits that you can't even touch a shoplifter for fear of a lawsuit. What happened to common sense?

Ward S. DenkerMarch 2, 2009 2:57 PM

"They do not fit the criteria of those non-citizens of the US who deserve constitutional privileges."

A nation isn't defined by how it treats its allies but rather by how it treats its enemies.

RogerMarch 2, 2009 2:59 PM

> And why does the TSA confiscate liquids at airport security, on the off chance that a terrorist will try to make a liquid explosive instead of using the more common solid ones?

While I strongly agree that many (most) government security policies are driven by the CYA effect, there is another aspect here. We have had reasonably effective non-invasive screening tests for conventional explosives for quite some time. All of those conventional materials have certain chemical features in common, which simplify the difficulty of screening for hundreds of different materials. But quite apart from being liquid, the explosive used in the so-called "Transatlantic bomb plot" used a fundamentally different chemistry, and in mid-2006 the only means to detect it was hopelessly impracticable: decant every liquid, and run wet chemistry tests on it. That was very probably the reason that al Qaeda focussed on that class of explosives in several aircraft bombing plots.

Restrictions on carrying liquids on board aircraft are now starting to be relaxed not because one of the "liquid bomb plot" accused was acquitted, but because we now have tests for non-invasive screening for these materials, and they are beginning to be deployed.

PiPMarch 2, 2009 3:10 PM

Retailers aggressively train and brief their employees to prevent shoplifting. Many stores offer a bonus to all employees if they have low "shrink" (loss due to theft) rates over a certain period. This creates alot of pressure. Employees make "loss prevention" or "LP" a high priority, and the "no customer conact" rule falls by the wayside. There is a chart in the breakroom that shows loss due to theft over the last quarter, and a daily team meeting where the "shrink" is discussed. Customer contact has only been covered once during the employees' first week of training. It's no wonder that shoplifters are sometimes tackled in the parking lot. Blame management, blame the training, don't blame the overworked and underpaid workers that are fighting for a $0.10/hour bonus.

RogerMarch 2, 2009 3:15 PM

@sbr:
> But in general, you release the enemy combatants (or however one wants to call them) after the war. Failing a war, there was no reason to imprison them anyway.

Sorry, that's not correct. If both combatants are signatories to the Geneva protocols, then at the cessation of hostilities they are obliged to convene a commission to discuss the repatriation of prisoners, but there is no obligation for it ever to come to any conclusions.

If one or other combatant is not a signatory to the Geneva protocols (as al Qaeda is not) then there is no legal requirement for repatriation at all. And that, in fact, is the norm. In most wars, prisoners only get to go home if some sort of prisoner exchange is organised, otherwise they can expect to spend the rest of their lives in captivity. There is no right of trial, and no right of appeal. There are numerous places around the world right now, where prisoners of war have been held for decades. This doesn't just apply to dirty little backwater wars; the last German PoWs in USSR to be repatriated after WW2 did not come home until 1953, 8 years after the end of the war, 12 years after some of them were captured -- and nearly a third were never repatriated, but died in captivity.

In any case, repatriation is rarely discussed *prior* to the cessation of hostilities, and I haven't heard of al Qaeda surrendering recently.

anonymousMarch 2, 2009 3:38 PM

> Incentives explain much that is perplexing about security trade-offs.
> Why does King County, Washington, require one form of ID to get a
> concealed-carry permit, but two forms of ID to pay for the permit by check?
> Making a mistake on a gun permit is an abstract problem,
> but a bad check actually costs some department money.


The two-forms-of-I.D. requirement for a personal check appears to be the standard policy for the department.

See http://www.kingcounty.gov/safety/sheriff/Services/ClearanceLetters.aspx , http://www.kingcounty.gov/safety/sheriff/Services/Fingerprint.aspx , and http://www.kingcounty.gov/safety/sheriff/Services/Firearms.aspx .

But a concealed-carry permit involves a much more extensive background check than paying a fee. It's probably more a matter of laziness than any perverse incentive.

And on a tangent, civilians are expected to obey the orders of anyone claiming to be a law enforcement officer, whether they present 0, 1, or 2 forms of I.D.

Matt from CTMarch 2, 2009 3:38 PM

>"Which military officer is going to
>accept the risk, no matter how small,
>of being wrong?"

So our entire nuclear deterent system is based on a false assumption that two military officers would receive the orders, decide they're valid, and turn the keys? Because, well.there's a small risk it might not be a valid order and they don't want to be responsible for killing a few million civilians by mistake?

I think it's fundamentally wrong to say that a military officer is incapable of making rational choices that a judge could.

What we do have is a much larger problem that we have not fully come to grips with:

How can you have "rule of law" when you allow laws to cross national boundaries?

What right does a Judge in the U.S. have to try someone who never left Afghanistan? Clearly they don't -- because if they did then some nation like Russia could declare encryption is illegal, and have a judge sign a warrant to extradite Bruce for trial for violating Russian law. It's insane.

Having courts of global venue simply make a farce out of the notion of "rule of law" since you are not governed solely by the laws of the nation you are in and act within, but instead by whatever the executive of that nation decides to allow other nations to enforce within their borders.

If we decide something is worth violating the sovereignty of another nation over, that's fine -- it's called war. The military or covert agencies go in and do things that don't fit within that target nation's legal framework. It means at times they have to assume the function of being lawmaker, judge, and executioner.

That's essentially what the allies did with Nuremberg -- create a system to define new crimes that never existed before and impose them on the conquered. That could only be viewed as "legal" within a framework of the executive being able to act arbitraly in matters of war. It wouldn't pass our Constitutional proscription against ex-post facto laws.

ZithMarch 2, 2009 4:36 PM

@PiP

"Shrink" refers to a lot of different forms of loss, not just theft. Inventory errors, mishandling, expiration, other paperwork issues are some other forms of readily preventable loss.

JonMarch 2, 2009 4:49 PM

@ Matt from CT:
"How can you have "rule of law" when you allow laws to cross national boundaries?"

Generally, the military takes its own national laws with it when it goes overseas. I'm not sure about the US, but for my country (NZ) when soldiers go overseas on operations they are covered by military law which *includes* all domestic law (and thus the Geneva Conventions, other treaties, etc) albeit modified by the relevant military laws. Therefore, anyone that comes under control of the military overseas is effectively covered by NZ domestic law.

I would expect the same applies to the US.

The nature and degree might be modified by SoFA (status of forces agreements), depending on the nature of the operation and the integrity of the 'host' nation, or it may not. I would think that there was no SoFA in place for either Afghanistan or Iraq for quite some time after the initial invasions, for example.

@ Kangaroo, and others:
"So we assume that everyone is that bastard creature, the "rational economically self-interested man" that the economists invented?"

Yes, because the detainees are still detained at Guantanamo. No one, yet, has taken the risk to release them (apart, obviously, for the few like Hicks who've been transferred).

In general:

I'm prepared to accept that some proporton of the detainees at Guantanamo are guilty of ... something. Personally, I believe that the proportion guilty of anything worth detention (especially detention for several years) is very low. Very low, but not zero. Do *you* believe that there are detainees at Guantanamo that are guilty of nothing worse than being in the wrong place at the wrong time?

If not, why not, given the evidence to the contrary.

If so ... the what next? Just leave them there on the break-eggs-to-make-an-omelette theory of 'justice'?

This problem that the US has created for itself is why it is a good idea to treat terrorism as a law enforcement problem, rather than a 'state of war' problem. The military can provide support - very vigourous support - to the civil powers to promote law enforcement, but leaving overall command and responsibility with civil powers helps ensure that you don't end up with legal own-goals like Guantanamo, where no one is prepared to grab the problem by the balls and DO something, and yet the longer nothing is done the worse the situation becomes (from a PR/diplomacy perspective, from a previously-good-guys-now-likely-to-go-bad perspective,etc).

Regards
Jon

TmanMarch 2, 2009 4:55 PM

"A nation isn't defined by how it treats its allies but rather by how it treats its enemies."

By any reasonable measure, we treat our enemies prisoners with far more respect and fairness than any of the people we are fighting. I think that giving them constitutional rights that they are in fact fighting to destroy seems a bit too much.

JKBMarch 3, 2009 12:02 AM

Stores restrict the apprehension of shoplifters for several reasons.

1. Grabbing the customer/shoplifter is battery. If the employee were then beaten by the shoplifter, they would have limited capability to sue or pursue the shoplifter for injuries. If the shoplifter is injured they could sue the store since the employee was acting in the course of their duties if a no touching policy wasn't in place. Run of the mill employees are not bonded for such actions and they are not law enforcement. Some jurisdictions do permit the use of force to prevent a suspected criminal from leaving but if the employee is wrong, they are the one who gets to go to jail for battery and conceivably unlawful imprisonment.

2. If the employee is injured, they have a worker's comp claim against the store. Acting against policy would probably not restrict the store's liability to such a claim but it could give an argument against the claim.

3. If another employee or customer was injured, they could sue the store but with an enforced policy of no touching, the store could argue the employee was not acting in performance of their duties.

This is the same reason stores such as Home Depot who terminate employees for a single safety infraction such as moving a forklift without a flagger. Failure to be proactive in enforcement of safety policies could be construed as a de facto approval of the employee conduct causing the store to be liable even when the act is against policy.

MysticKnightoftheSeaMarch 3, 2009 12:53 AM

@ all
Yes, the Police are trained and equipped to apprehend shoplifters. But with all respect to Law Enforcement, they cannot be in the store's back pocket without being absent somewhere else.

To the miscreant (sorry, "fiscally-challenged customer"), it's a risk/benefit evaluation that they see operating in their favor.

That Whole Foods has the "No touch" policy (and they're not alone, so did the Big Red R chain based in Ft. Worth), only makes it easier, especially when the word gets around.

@ Brett & Kangaroo
Welcome to a Post-Modern world.

MKotS
"Trust everybody, but count your change." - Eomer Dane

Joseph MagidowMarch 3, 2009 1:20 AM

Careful, with a post like this you might get accused of being an economist.

SpecialKMarch 3, 2009 1:36 AM

Why can't we physically stop thieves? This is absolutely ridiculous that reasonable force (tackling a fleeing thief) cannot be applied to protect property. Why should we have to write laws to prevent this abuse of the legal system by criminals.

Apparently he should have shot the shoplifter. Then he couldn't have sued.

SteveJMarch 3, 2009 7:38 AM

@SpecialK

He wasn't sued, he wasn't prosecuted. He probably did use reasonable force as far as the law is concerned, but that's irrelevant since nobody made a criminal or civil complaint against him. This is not an infringement of your right to defend your property.

His employer fired him, for breaking the rules of his job. There are many things which employers fire staff for doing, but which are not illegal.

Obviously it's open to question whether the employer should have fired him, and more generally whether employers should be stipulating this term of employment. The company's quote, "The fact that he touched him, period, is means for termination" might likewise mean that an employee would be fired for saving a customer's life with CPR, for helping them up after a fall, or for shielding them from gunfire during a robbery. Period.

It may or may not be smart, but it's nothing to do with the law, it's just the employer's rules.

coderpunkMarch 3, 2009 10:22 AM

If Whole Foods is going to depend on the cops for protection from shoplifters why have a security staff on site at all?

What do you think is going to happen to shoplifting rates at Whole Foods when the word gets out that they cannot apprehend you? It isn't just about the value of that single offense, its about the crime rate that is bound to increase because of the lack of enforcement.

And do you really think the Sheriff is capable of doing anything? They are not there! All they can do is take a report and maybe look at the security video to see if they can ID the perp.

Mr. JLOMarch 3, 2009 10:42 AM

I have to disagree with some parts of this essay. Granted society did create police and judiciary systems to put criminals away, clearing the way for ordinary citizens to carry on with their lives. Criminals know this and know that most citizens will not get involved in their affairs, so they continue on doing what they do (Business is good). The criminals know that security forces are large and slow to move. How much time will it be until more and more citizens become numb to criminal activity and let the "system" take care of it? How long until criminals figure out that we don't care about "touching them" because its not our job. Criminals gone wild! Look at whats happening in Arizona with the Mexican cartels.... Just because the systems are the only ones who are supposed to get involved. It will come to a point where it will be so bad that the authorities will be irrelevant. citizens will take arms against the criminals at some point (2nd amendment, if not removed, will guarantee it). So every citizen that took up arms will be prosecuted because they failed to work with the much larger, slow moving, irrelevant "proper authorities".
America is changing...

JimFiveMarch 3, 2009 3:53 PM

@Chris
"the cost will not be borne by Whole Foods, it will be passed on to the customers."

This isn't true. The price of a product is not related to the cost of the product. The price is the intersection of what the customer is willing to pay and what the store is willing to accept at the point of maximum profit. If the cost goes up, the customer doesn't care, if the price goes up the store will lose a certain amount of customers. It is certainly possible that the cost of theft will change the equilibrium point such that the store is willing to raise prices and lose customers to maintain profit, but it isn't guaranteed. It is entirely possible that lowering prices would increase sales and reduce theft enough to be a better solution.
--
JimFive

Paul GreenMarch 4, 2009 12:08 PM

We provide security guards and loss prevention staff in the UK, and I have to say, I can sympathise - things are going the same way over here. A very good blog on the subject, told with cynical realism, thanks for the read :)

Anon of IbidMarch 4, 2009 5:31 PM

[Quote Tman]: "A nation isn't defined by how it treats its allies but rather by how it treats its enemies."

By any reasonable measure, we treat our enemies prisoners with far more respect and fairness than any of the people we are fighting. I think that giving them constitutional rights that they are in fact fighting to destroy seems a bit too much.
[End Quote]

Personally, I believe that holding the rights that we enjoy to our enemies is the _only_ way to go, and not at all "too much". If you like, say, freedom of speech until someone says something you don't like, you don't have any freedom of speech. In a similar vein, if you don't have the rule of law, and the very same law for each and every person that comes into contact with any sort of detention or prosecution, then you don't have any true rule of law at all.

Sure, right now it's terrorism (a method), but communism (an idea) was also something we had a "war" against. It wouldn't be a stretch to guess that civil disobedience would someday be seen as "terrorism", and maybe even protesting in front of a Starbucks (interfering with economic activity). Hell, we even have "free speech zones" already.

"First they came for the [communists, terrorists, Jews, etc.], and I wasn't one, so I didn't bother..."

AlanMarch 6, 2009 6:32 PM

In practice King County actually requires more than one form of ID for issuing a gun license -- you show your driver's license at the window, but then they fingerprint you as well, which is effectively a second ID since the prints are run through AFIS.

In addition there is the credit card or check you paid with, and they check your name and address against all the other state records and FBI database.

SommerfeldtMarch 7, 2009 2:42 AM

Looking over that "CYA Security" so-called essay, I wonder if Bruce has even read Fischer at al; Introduction to Security.
Hey Bruce; there's an eighth edition out. It's pretty good, you should check it out.

Ivan DurakovMarch 15, 2009 9:29 AM

There are some incorrect notions in the clever and interesting essay. I must say that I never envisioned Whole Foods as a metaphor for Guantanamo bay, but now since flaming neoliberals run both I can see the logic. It's a good textbook example of carefully-layered Ashkenazi political rationalization, correct TSA characterization notwithstanding.

The first is the notion that the GTMO terror suspects were "removed" from the US legal system. The fact is they were never "in" the US legal system to begin with. The legal system is established by the US Constitution, to which US territory is subject, and is a compact between only our government and the citizens under it. It does not apply arbitrarily to citizens of foreign countries and to foreign territory, in this case mostly Saudi nationals and leased Cuban territory. It does dictate the behavior of those running GTMO, but the prisoners under them aren't automatically entitled to the full privileges of the Constitution, especially since they equally aren't bound by its responsibilities. The US constitution decribes habeus corpus as a conditional privilege which in this case the executive chose not to exercise on the basis of safety of US citizens. The foreign suspects have not joined themselves to our compact which recognizes inalienable rights, so under assault our executive isn't bound to unconditionally grant it to them. To claim the US constitution does indeed apply to them is to claim that the US constitution arbitrarily applies to the entire earth and all its inhabitants, which is nothing short of imperialism. It does not any more than the constitution of the Soviet Union ever applied to us here. I thought liberals were opposed to imperialism, as the Soviets always reminded us.

Second, to characterize the group as uniformly innocent is foolish and disproved by facts. I forget the exact recidivism rate of those already released, but it is high. A good number of the group are indeed terrorists and have "gone back to work" for their commanders. Is it more important to protect the safety of the US from those dedicated to conducting unorthodox military action against it, or to let them all loose for the sake of a few swept-up bakers and candlestick makers? Most of these guys would take the "Zionist" skull off your body and feed it to us "crusaders" in a New York minute.

This does not mean the US government should not devise and implement just means of trying the prisoners. In fact they did so, via law approved by the Demshevik-led congress. However, that same Congress, rather than correct any emerging deficiencies in the law, would rather keep the problems intact so they can bash the thoroughly-inept Republicrats with it. Nuremberg is a good model, but it didn't follow the US constitution either, it was invented on the fly. Should we have summarily released those prisoners also? An international agreement on the treatment of terrorists is needed, but don't turn them free in the meantime because it doesn't exist, they'll be back.

As a civil servant, I am afforded less legal privilege within my working system than the prisoners at GTMO are. Should my agency's Inspector General come after me for some perceived, hypothetical infraction, I have to hire my own legal counsel at my own expense. Not so at Club GTMO! JAG support is free.

Abu Ghraib? The Iraqis have been running that for years now. I wonder what kind of justice Arabs are offering their fellow Arabs there.

Let's turn Club GTMO loose in New York City and see what "innocence" and "justice" really look like!

MarkHMarch 15, 2009 11:48 AM

@Ivan Durakov:

Because this is a security blog, and Habeas Corpus is perhaps the most essential protection of the security of persons provided by law, I offer 4 observations.

1) Ivan wrote, "The US constitution decribes habeus corpus as a conditional privilege which in this case the executive chose not to exercise on the basis of safety of US citizens." -- The constitution says, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." I assume we can agree that this is not a case of Rebellion. Many will agree that the U.S. was/is under a type of Invasion. Setting aside some very shady FBI prosecutions, it appears that the known al Qaeda invasion ended on 11 September 2001 (it being understood that it would please them to launch another). Excepting possibly 2 or 3 persons, the prisoners at Guantanamo did not in any sense invade the U.S. Many of them were captured in consequence of the U.S. invading another country.
This privilege is conditional, but not arbitrary. The constitution DOES NOT permit it to be suspended simply because some people are in danger, or feeling scared. Abraham Lincoln had a strong (but nevertheless debatable) constitutional argument to suspend Habeas, a full-scale Rebellion having occurred. The argument in the present circumstances is strained to the limits of logic.

2) Ivan wrote, "To claim the US constitution does indeed apply to them is to claim that the US constitution arbitrarily applies to the entire earth and all its inhabitants, which is nothing short of imperialism." -- Umm, no. Like much of the constitution, Habeas Corpus sets limits on the powers of government, and for this Americans may be very thankful! If, say, Mongolian law asserted that the government of Mongolia is restrained from using its powers against people, whether they're in Ulan Bator or New York City, would that be imperialism?

3) Ivan wrote, "It does not apply arbitrarily ... to foreign territory" -- It is logical to read rights like Habeas Corpus as confined to U.S. soil. But U.S. soil isn't limited to the 50 states. It includes the District of Columbia, territories like Puerto Rico and Guam, U.S. embassies and consulates in almost every country, and for various legal purposes U.S. military bases in foreign countries, ships at sea, and airplanes in flight over the oceans (just google "McCain natural born citizen"). The miserable soil of Camp Delta is under the effective control of the U.S. government, and no other sovereign.

4) Ivan wrote, "It does not apply arbitrarily to citizens of foreign countries" -- "The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume." --Thomas Jefferson to A. H. Rowan, 1798

Budtye zdorovi!

Leave a comment

Allowed HTML: <a href="URL"> • <em> <cite> <i> • <strong> <b> • <sub> <sup> • <ul> <ol> <li> • <blockquote> <pre>

Photo of Bruce Schneier by Per Ervland.

Schneier on Security is a personal website. Opinions expressed are not necessarily those of Co3 Systems, Inc..