Archives: December, 2012

The Senate’s Rushed Debate on NSA Spying Powers

By
Julian Sanchez

As I write, the Senate is gathering in an unusual special session to debate the reauthorization of the FISA Amendments Act, which I discussed in a recent Cato podcast. Unfortunately, as Sen. Ron Wyden pointed out in opening the discussion, this sparsely-attended holiday session is likely to be the only full floor debate on sweeping surveillance legislation that has been in force for four years already (during which we know it has already been used unconstitutionally), and is all but certain to be renewed for another five. That’s especially disturbing given that, when the House debated the law back in September, its strongest supporters revealed themselves to be profoundly confused about what the law does, and just how much warrantless spying on the communications of American citizens it permits, despite being nominally restricted to “foreign targets.”

Our friends at the Heritage Foundation have a post up sounding the Klaxon to warn of dire consequences if the Senate fails to renew the law without substantial changes. Hearteningly, even Heritage seems to be comfortable with proposed reforms requiring the secret FISA Court to publish declassified versions of substantial interpretations of the statute, so we are not effectively living under a body of secret law.  But their vague claim that some amendments would “substantially change the nature of the legislation” doesn’t really hold up.

Here’s a rundown of amendments that will be proposed. With the exception of a genuinely radical one offered by Sen. Rand Paul—proposing that the Fourth Amendment applies to our digital records and communications even when they’re stored by an Internet company—they’re all very mild, utterly common sense tweaks. One offered by Sen. Pat Leahy would extend the FAA for three years rather than five, in hopes that we might actually have a more substantial debate about this incredible spying power soon. Sen. Jeff Merkley is offering the one mentioned above, ensuring that we’re not living under secret law.  

Finally, Sen. Wyden has two important amendments. One would require the NSA to produce a rough estimate of how many Americans’ communications are intercepted under the sweeping “vacuum cleaner” style programs authorized by FAA, which they have thus far refused to do, probably in part because the number would be distressingly high.  A second would prohibit “backdoor searches” targeting Americans.  The idea here is that precisely because warrantless FISA surveillance is so sweeping, and large numbers of Americans’ communications are likely to end up in the NSA database even if foreign groups are in theory the “target” of surveillance—as we know has already happened on a large scale—it becomes possible to effectively “target” Americans simply by entering their names or other identifying information in searches of the database.  That’s obviously a way of circumventing the law’s ban on “reverse targeting” that is really meant to spy on Americans under authority nominally aimed at foreigners. Wyden’s amendment would simply require an individualized FISA warrant when agents want to search their vast communications database for a particular American’s information. The NSA has objected to the term “backdoor searches” and the characterization of this process as a “loophole” in the law—but they certainly haven’t denied that the law as written allows them to do this, and have resisted this effort to prohibit it. Yet if, as supporters insist, this is really a law aimed at foreigners rather than Americans, surely such a requirement should be a no-brainer.

Amendments aside, it’s worth noting that nothing dire would happen if the law expired for a while. Programmatic surveillance authorizations under the law—covering entire “categories” of surveillance targets rather than particular people—last for a year, and would continue unmolested if the law lapsed. As we now know, claims made in 2008 about immediate problems arising from the expiration of the predecessor to the FAA were highly misleading, and one suspects deliberately so. We also know that the hyperbolic claims about the value of the initial, extralegal warrantless wiretap program didn’t hold up to scrutiny once the Inspectors General got around to auditing the program. There’s no realistic chance the Senate is going to let this legislation expire but, Mayan calendar notwithstanding, the world would not end if it did.

Given that this law is going to be renewed, ask yourself: Aren’t the checks discussed above just common sense? Shouldn’t we know what the laws we live under actually mean, as interpreted by the courts?  Shouldn’t we know approximately how many Americans are being secretly spied on by the government? If a surveillance program is, in principle, supposed to be exclusively aimed at foreigners, then shouldn’t a warrant be required before  that program can be explicitly and deliberately used to read the e-mails of Americans? It is hard to imagine how anyone could oppose any of these principles, whether or not they approve of the FISA Amendments Act as a whole. If our friends at Heritage—or more to the point, members of the Senate—do oppose any of these, we should at least ask for a convincing explanation of why, not a vague suggestion that we’re all in danger unless we shut up and embrace the status quo.

Topics: 
Foreign Policy and National Security, Government and Politics, Telecom, Internet & Information Policy

Free Trade in Health Insurance

By
Simon Lester

Yesterday, Alberto Mingardi said the following in a post on this blog: 

Holland has now a universal health care system financed through competing insurance companies.

This raises an issue I’ve been thinking about for a while now:  Why don’t we have free trade in health insurance?  We can buy cars that are made outside of the United States, and most people would agree that we are better off as a result.  So why not let Americans buy health insurance from foreign insurance companies?

In terms of the law and policy, I confess that I’m not completely sure how the system works, and why exactly people can’t use one of these Dutch health insurance companies, or companies of some other nationality.  But my impression is that, with a few exceptions, cross-border trade in health insurance does not happen here in America.  Before coming to Cato, I was in the individual health insurance market, and it was pretty clear that my health insurance options were limited to a few companies, and none of these companies were foreign. 

I have little doubt that we would be better off with free trade in health insurance, just like we are with (relatively) free trade in cars.  Trade would mean that the health insurance industry has more competition, and consumers would benefit as a result. 

There’s lots of talk about how to bring health care costs down.  Why not give free trade in health insurance a try?

Topics: 
Government and Politics, Health Care, Regulatory Studies

How the Welfare State Traps the Poor in Dependency, the British Version

By
Daniel J. Mitchell

Back in 2011, I linked to a simple chart that illustrated how handouts and subsidies create very high implicit marginal tax rates for low-income people and explained how “generosity” from the government leads to a tar-paper effect that limits upward mobility.

Earlier this year, I shared an amazing chart that specifically measured how the welfare state imposes these high implicit tax rates. Unbelievably, some people would be better off earning $29,000 rather than $69,000.

Simply stated, the multitude of redistribution programs are worth a lot of money, but you begin to lose those goodies if you begin to live a productive and independent life.

And since we know that rich people respond to high tax rates by declaring less income to the government, we shouldn’t be surprised that poor people also respond to incentives.

We also shouldn’t be surprised to learn that other nations have these same perverse policies. Here are some excerpts from a powerful piece for the UK-based Spectator.

…today’s Sunday Times magazine has a long piece asking whether there is a “fundamental difference in our attitudes to work”. It’s still one of the most important questions in Britain today: what’s the use of economic growth if it doesn’t shorten British dole queues? And should we blame these industrious immigrants; aren’t the Brits just lazy? …The quality of the British debate is so poor that we almost never look at this from the point of view of the low-wage worker. Every budget, the IFS will dutifully work out if it has been “fair” – ie, gives the most to the poorest. The LibDems will judge a budget by this metric. That’s a nice, easy, simple graph. But what about destroying the work incentive? Each budget and each change to tax should be judged on how many people are then ensnared in the welfare trap. I adapted the below (nasty, complex) graphs from an internal government presentation, which still make the case powerfully. The bottom axis is money earned from employer and the side axis is income retained. The graphs are complex but worth studying, if only to get a feel for the horrific system confronting millions of the lowest-paid in Britain today.

Here are the two charts. the author is correct. They are quite complex. But they show that there’s no much incentive to work harder, whether you’re a young person or a single parent.

After showing these amazing charts, the author makes some very powerful additional observations.

…if I was in a position of a British single mother I have not the slightest doubt that I would choose welfare. Why break your back on the minimum wage for longer than you have to, if it doesn’t pay? Some people do have the resolve to do it. I know I wouldn’t. …So let’s not talk about “lazy” Brits. The problem is a cruel and purblind welfare system which still, to this day, strengthens the welfare trap with budgets passed without the slightest regard for its effect on the work incentives on the poorest. …Meanwhile, the cash-strapped British government is still creating still the most expensive poverty in the world.

The final sentence in the excerpt really sums it up, noting that the government is “creating the most expensive poverty in the world.” Sort of like a turbo-charged version of Mitchell’s Law. The politicians create a few redistribution programs. Poverty begins to get worse. So then they add a few more handouts to address the problems caused by the first set of programs. Lather, rinse, repeat.

In other words, this poster applies in all nations.

P.S. If you want some real-world examples of the horrible impact of the British welfare state, you can see how the welfare state destroys lives, creates perverse incentives, and turns people into despicable moochers.

P.P.S. We have the same problems in America, and even leftists are beginning to admit this is bad for poor people. Heck, just look at this chart showing that the poverty rate was falling until the War on Poverty began.

Topics: 
Government and Politics, International Economics and Development, Tax and Budget Policy

The Upside of the Greek Crisis

By
David Boaz

The Wall Street Journal reports:

Strikes, work slowdowns and protest marches have become so common in crisis-hit Greece that it can be hard to keep track of who is demonstrating when, where and against what….

The Greek finance ministry this year has had to extend the deadline for filing personal income-tax returns three times, in part because of strikes by tax collectors.

Topics: 
International Economics and Development

An Inside View of Public Schools

By
David Boaz

“In public school, they were just happy you turned in your work.”

That’s the view of high-school basketball star Josh Hart, who transferred from a Maryland public high school to Sidwell Friends in Washington, D.C., where he hoped to get more attention from college basketball coaches. Here’s more of what he said to the Washington Post:

“With the academics, it was like a whole new world where they were speaking a different language,” recalled Hart, who had transferred from Wheaton. “In public school, they were just happy you turned in your work. Here, on the second day, the teacher was talking about explicating poems and I remember thinking it was going to be a long year.”

The good news is that thanks to the help of some involved parents, Hart improved his study habits and grades and is now an all-around success at Sidwell Friends. But how well are other students being served by schools where “they were just happy you turned in your work”?

Topics: 
Education and Child Policy

The Flaw in Conservative Pragmatism

By
Alberto Mingardi

Blog posts do not necessarily do justice to a thinker. But trying to shrink your thoughts in a limited space is a good exercise for a thinker indeed: synthesis forces you to select, cut, and clarify.

Bruce Bartlett now blogs at the New York Times Economix blog. One of his latest pieces is “A Conservative Case for the Welfare State”. Such a case has been made in the past too: most prominently, by the intellectual leader of neo-conservatives, Irving Kristol, who wanted the welfare state to be put at the service of conservatives “principles.”

Bartlett’s endorsement of the welfare state is quite different. He doesn’t attempt to steer welfare paternalism in a conservative direction. He defends the welfare state qua the welfare state and maintains that Conservatives—or better to say: Republicans—should do likewise because “Republican presidents from Dwight D. Eisenhower through George H.W. Bush accepted the legitimacy of the welfare state and sought to manage it properly and fund it adequately”. Conservatism has often been described as politics without a theory, but arguments ex authoritate making an appeal to politicians rather than to philosophers are somewhat novel, particularly when the names named are those of Eisenhower and of Bush Sr., neither of whom appeared to have a particularly coherent political vision.

Bartlett comes out against policies that, following the late Milton Friedman, are not trying to remove the welfare state from the political scene, but rather trying to reshape it to make it more effective. Neither social security “privatization” nor “school vouchers” would override compulsory savings or compulsory education. They would just introduce some competitive elements in the system, bringing us back to a point that wasn’t made by any arch-conservative Republican but by the common patron saint of all families of contemporary liberalism: John Stuart Mill.

Read the rest of this post »

Topics: 
Government and Politics, Health Care, International Economics and Development

Don’t Renters Have Fourth Amendment Rights?

By
Ilya Shapiro

A person’s home is his castle and thus affords certain protections and immunities—including the right to exclude unwanted visitors—that apply whether you own or rent. Unfortunately, ordinances authorizing general administrative searches of rental properties have been increasingly adopted by local authorities with little protection for property rights or privacy interests.

These inspections cover the whole of the buildings and all of the activity that occurs within, opening every aspect of people’s lives to the government: political and religious affiliations, intimate relationships, and even all those Justin Bieber posters and Fifty Shades of Gray books you hide when people come over. They take place even if both the landlord and tenant believe them not to be necessary!

In a recent case from the state of New York, the city of Rochester issued administrative warrants against certain rental homes based solely on the fact that the properties’ six-year occupancy certificates were up for renewal.  The Fourth Amendment, however, prohibits the issuance of general warrants to search private dwellings. The authorities claim to seek evidence of housing, zoning, or other administrative code violations, of course, but they lack individualized suspicion that any of the renters are engaged in such wrongdoing.

Indeed, these home invasions are exactly what the Fourth Amendment was intended to prohibit: In colonial days, the Crown granted British officials general search powers against any home they wished, at any time, for any or no reason. In Rochester, the warrants remain valid for 45 days, permitting multiple entries by city employees and courts that are no longer involved after issuing the warrants. These administrative warrants sanction videotaping and photography of the home, and those images become publicly available online: the whole neighborhood may find out that you have five different facial cleansers and an unusual amount of apple sauce. There’s no safeguard for privacy and any evidence of crime can be reported to police.

Three tenants and a landlord have thus challenged Rochester’s inspection program, arguing that it violates both the Fourth Amendment and, in treating renters differently from owner-occupiers, the Fourteenth Amendment’s Equal Protection Clause. Unsuccessful in state court, they’ve now petitioned the U.S. Supreme Court for review.

Cato, along with the Reason Foundation, Minnesota Free Market Institute, and Libertarian Law Council, have filed an amicus brief urging the Court to take the case to stem the flow of harassing invasions and restate the Fourth Amendment’s protection of individual rights. Indeed, the Court itself created much of the problem here because its only relevant precedent is some non-binding, advisory language regarding what searches are “reasonable” in a 1967 case called Camara v. Municipal Court. Camara created a mess in the lower courts, which have either misconstrued or ignored the Supreme Court’s suggested standards.

The Court should revisit Camara and hold that individualized suspicion should be required for the issuance of administrative warrants, in line with the historical understanding of the Fourth Amendment. The privacy of the home and its contents is fundamental to the liberty of individuals and families, so the recent growth of rental-home inspection laws poses a grave threat to the nation’s basic first principles. The reasons offered for upholding these schemes are insufficient to justify such a substantial weakening of constitutional protections, particularly where many alternatives to suspicionless searches exist to advance what valid interests local authorities may have.

The city of Rochester, which refused to consent to our filing our brief—requiring us to preface it with a short motion of the sort that the Court invariably grants—will now have to file its response to the cert petition (or continue its obfuscations and waive its right to do so). The Court will decide whether to take Nelson v. City of Rochester later this winter.

Topics: 
Law and Civil Liberties

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