Archives: 06/2013

Public More Wary of NSA Surveillance Than Pundits Claim

Based on a bevy of polls conducted in the wake of revelations that the NSA surveiled millions of ordinary Americans’ private communications, many have prematurely concluded public support or opposition to the government surveillance program (for instance here, here, and here). These polls are insufficient gauges for what Americans actually think for several reasons. First, slight wording differences result in majority support or opposition of the program as described in each particular survey question, as I’ve written about here. Second, the full extent of these government programs is not yet fully known; fully 76 percent of Americans think that we’ll find out the programs are “even bigger and more widespread than we know even now.” Third, most Americans are not even fully aware of the revealed information and its implications—according to a Time poll only 24 percent of Americans say they’ve been closely following the reports of the large-scale government surveillance program called PRISM.

The public’s view of the information leak and revelations about these programs is complicated, as Americans strike a delicate balance between security and privacy. For instance, a Time poll found that 53 percent of Americans think the “government should prosecute government officials and others who leak classified materials that might damage security efforts,” but 54 percent thought that Edward Snowden, the person who leaked the information about the secret program, “did a good thing in informing the American public.” This is likely because only 30 percent, according to a CBS/New York Times poll, think these leaks will weaken U.S. security.

Examining the different poll wordings can still offer value, demonstrating how people’s opinions change when they learn different details of the program. For instance, the public distinguishes between tracking ordinary Americans not suspected of any wrongdoing and collecting records of those suspected of terrorist activity. Pew/Washington Post found 56 percent thought it was acceptable for the NSA to get “secret court orders to track telephone call records of millions of Americans in an effort to investigate terrorism.” However, a CBS/NYTimes poll distinguished between tracking phone records of ordinary Americans and those suspected of terrorist activity. In contrast to Pew, CBS/NYtimes found 58 percent disapprove of “federal government agencies collecting phone records of ordinary Americans” but 75 percent approve of tracking “phone records of Americans that the government suspects of terrorist activity.” Americans continue to reveal their preference for targeted surveillance when 73 percent told a Rasmussen poll that the “government should be required to show a judge the reason for needing to monitor calls of any specific Americans” and 64 percent said “it is better to collect phone records only of people suspected of having terrorist connections.”

Survey data also suggests Americans distinguish between government tracking phone records and government monitoring the content of online activities. Although polls have found public support for tracking phone records to investigate terrorism, most Americans draw the line at government monitoring the content of Internet activity, such as emails and chats. For instance, Pew found 52 percent think the government should not be able to “monitor everyone’s email and other online activities.” Likewise, when Gallup describing the government program as collecting phone records and Internet communications, 53 percent disapproved.

Surveys that assume away potential misuses and abuses of the data not surprisingly find greater support for government surveillance programs. For instance, A CNN/ORC poll, found 66 percent thought the Obama administration was “right” in gathering and analyzing data on Internet activities “involving people in other countries,” while assuring respondents that the “government reportedly does not target Internet usage by US citizens and if such data is collected it is kept under strict controls.” The validity of this later assertion, however, is actually at the crux of the debate for those critical of the surveillance program. In fact, according to the same CNN poll, nearly two-thirds believe the US government has collected and stored data about their personal phone and Internet activities. Moreover, Rasmussen found that 57 percent thought it was likely that government agencies would use the data collected to “harass political opponents.” The fact that the public’s reported support for the program jumps when survey-wording guarantees the collected data will not be abused suggests that part of the reason the public is wary of the program is the very potential for abuse. The public does not desire privacy for just privacy’s sake, rather the public fears loss of privacy because of the potential for misuse or abuse. Questions that assume away this possibility are entirely unenlightening.

In sum, these data suggest the public is wary of untargeted government surveillance of ordinary Americans, especially without a warrant. They are more tolerant of government tracking phone records; however, many draw the line at government monitoring the content of ordinary Americans’ Internet activity.

A version of this post also appeared on Reason.com

Food Aid Reform in the Farm Bill

A number of my Cato colleagues have offered good criticisms of developments related to the latest farm bill here, here, here, here, here, and here. (That’s a lot of “heres,” but farm subsidies deserve a lot of criticism!) But there is one possible element of the farm bill that would actually count as “reform”: a proposal to take some of the protectionism out of food aid.

I discussed this issue here and here. As I noted, the way these programs work is that when giving aid to help with food shortages abroad, ”[i]nstead of simply giving money to people to buy food from the cheapest source, the U.S. government buys food from U.S. producers and requires that it be sent overseas on U.S. ships.” Not surprisingly, that’s not a very efficient way of doing things. As noted in an article in the Guardian newspaper“50% of the US food aid budget is currently spent on shipping costs.”  

To address this problem, a food aid reform act has been introduced in the House, and would eliminate the requirements that food assistance be grown in the U.S. and transported on U.S.-flagged ships. Currently, this act is a separate bill, but the article says that “many observers assume that it will probably be tied into the House farm bill eventually.” So, while there’s still plenty not to like about the farm bill, a fix to this long-standing example of economic nationalism would be welcome.

A View from Ankara

Ankara, Turkey — We arrived in Ankara this evening after some sightseeing on the Aegean coast, from the resort town of Kusadasi we traveled to the ancient city of Ephesus. These are the most impressive ruins from the Roman period that I’ve ever seen (excepting Rome).

The amphitheater (pictured below) seats over 24,000 people and is appropriately famous for its sheer size, but the city as a whole was impressive, boasting an estimated population of 250,000 people at its peak circa the 1st or 2nd century AD.

We took a one-hour flight from Izmir to Ankara, the capital. As in Izmir and Istanbul, I was struck by the sense of confidence and growth. Modern buildings are under construction everywhere, and there is an ebullient mood. We passed a large festival with carnival style rides. Cars speed along the main road through the center of town. It is an impressive place. But it will be interesting to see if this upbeat attitude can be maintained in the midst of widespread strikes.

When I first arrived in Turkey, a traveling companion helped me to understand its complexity. The society is characterized by multiple social and cultural divides and disparate identities. Some of the more obvious that I alluded to yesterday include the divide between secular and religious people, and between the military and civilian officials. There is also, of course, the divide between Muslims and non-Muslims. Among Muslims there are those who are very observant and conservative, and others less so. Most are Sunni, but there is also an Alawite community in Turkey, especially near the Syrian border. There are ethnic divisions, most prominently (and sometimes tragically) between the Turks and Kurds, but there are regional divides as well, for example, between the more laid back communities in the coastal cities, and the bustling cosmopolitanism characteristic in the mega-city Istanbul, or here in Ankara. Lastly, there is a traditional political divide between left and right, and various gradations along that continuum.

Consider, then, that someone can be a leftist, a Kurd, and a moderate Sunni Muslim. One can be a relatively conservative, practicing Muslim, and a supporter of the center-right AKP, but also respect a strict separation between church and state, and thus oppose regulations that would impose their beliefs on others. Other more religiously conservative Turks might want tougher laws restricting the use of tobacco or the consumption of alcohol, and be enthused about Prime Minister Recep Tayyip Erdogan’s efforts in this regard. One can be a moderate leftist, a supporter of the main opposition party, the CHP, but also a practicing Muslim.

Federal Judge to Kentucky Bureaucrats: Stop Prohibiting Free Competition

Last Thursday, a federal district court judge issued an injunction blocking the Kentucky Transportation Cabinet – the genteel name given the Bluegrass State’s department of transportation – from enforcing the state’s anti-competitive licensing law for movers.

In Bruner v. Zawacki, which is being litigated by Cato adjunct scholar Timothy Sandefur and our other friends at the Pacific Legal Foundation, small business owner Raleigh Bruner argues that the licensing laws, which allow existing moving companies to file “protests” to block new companies from opening, create a “Competitor’s Veto” that has no rational basis. Judge Danny Reeves ordered the state not to enforce those laws, at least until he has the opportunity to issue a complete opinion – but he strongly indicated that he already thinks those laws are unconstitutional:

The Sixth Circuit has held that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.” And it appears that the notice, protest, and hearing procedure in the statutes – both facially and as applied – operate solely to protect existing moving companies from outside economic competition. The defendants have admitted that they know of no instance where, upon a protest by an existing moving company, a new applicant has been granted a certificate … .  [O]ver the past five years, no protest filed has been regarding an applicant’s safety record. Likewise, no applications have been denied on the grounds that the applicant was a danger to public health, safety, or welfare.

You can read more about the case at PLF’s Liberty Blog.

NH Court: You Can Choose a School So Long as It’s Secular

Earlier today, a New Hampshire district court upheld the “Live Free or Die” state’s nascent scholarship tax credit (STC) program, but limited the use of scholarships to non-religious private schools.

Earlier this year, the ACLU and Americans United for the Separation of Church and State filed a lawsuit claiming that New Hampshire’s school choice law was unconstitutional under the state’s Blaine Amendment, which prohibits the public funding of religious schools. The law grants tax credits to corporations in return for contributions to non-profit scholarship organizations that fund low-and-middle-income students attending the schools of their choice.

The decision hinged on whether or not tax credits constitute “public money.” Previously, the U.S. Supreme Court held that they do not, noting that when “taxpayers choose to contribute to [scholarship organizaions], they spend their own money, not money the State has collected from respondents or from other taxpayers.”

Likewise, the Arizona state supreme court upheld the constitutionality of Arizona’s STC program, forcefully rejecting the “public money” argument:

According to Black’s Law Dictionary, “public money” is “[r]evenue received from federal, state, and local governments from taxes, fees, fines, etc.” Black’s Law Dictionary 1005 (6th ed.1990). As respondents note, however, no money ever enters the state’s control as a result of this tax credit. Nothing is deposited in the state treasury or other accounts under the management or possession of governmental agencies or public officials. Thus, under any common understanding of the words, we are not here dealing with “public money.”

While neither the Arizona supreme court nor U.S. Supreme Court serve as binding precedent for how a New Hampshire court may interpret the New Hampshire state constitution, their reasoning should have carried great weight as the question before the court was the same. Nevertheless, the NH trial court rejected this traditional understanding of “public money” in favor of the plaintiff’s “all your money are belong to us” argument. In the words of the trial court judge:

This Court concludes that the program uses “public funds,” or “money raised by taxation” … Money that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students.

This is precisely the understanding of “public money” that the U.S. Supreme Court rejected: 

Respondents’ contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. Private bank accounts cannot be equated with the … State Treasury.

The U.S. Supreme Court held, in essence, that your money is your own whether or not it qualifies for a tax deduction of some kind. A taxpayer’s money only becomes “public money” once the government actually collects it in the form of taxes. The NH trial court judge, by contrast, holds that any taxpayer’s income on which the government might have a claim is instantly “public money,” even before collection, and it remains so even if the existence of a tax credit or deduction means that government will never collect it.

Unfortunately, the legal theater of the absurd doesn’t end there. Charlie Arlinghaus, President of the Josiah Bartlett Center, which advised legislators on crafting the law, noted that the trial court’s logic leads to another absurd conclusion:

This ruling is particularly odd. The entire program is fine unless a parent by their own choice chooses a religious school. By this logic a program is illegal if neutral and only legal if actively hostile to religion. 

The Institute for Justice, which intervened on behalf of the Network for Education, the state’s first scholarship organization, will be appealing the decision to the state supreme court. IJ Senior Attorney Richard D. Komer stated:

The court’s ruling inflicts again the blatant discrimination that motivated New Hampshire’s bigoted Blaine Amendment in the first place.  We will immediately seek a stay of the court’s decision so that parents receiving scholarships can choose the educational options that best suit their child’s unique educational needs, regardless of whether that is a religious or secular school.

The trial court’s order halting the program is wrong on both the facts and the law. As a factual matter, the program is funded with private, not public dollars.  As a legal matter, the federal Constitution prohibits states from preferring non-religious schools over religious schools, which is precisely what the court’s ruling does.

We can only hope that the Granite State’s supreme court will exercise better judgment.

We Need Real Change at the G8 Meeting

The G8 is meeting in Northern Ireland’s Belfast. The group of important industrial states is chaired this year by British Prime Minister David Cameron.  London’s three top objectives are trade, taxation, and transparency. 

No doubt, there will be a flurry of ponderous public statements and breathless press analyses. But as I argue on National Interest online, the meeting likely will be a waste. 

Trade liberalization is a worthy goal, but the U.S. and European commitment to agricultural subsidies has essentially killed the Doha round under the World Trade Organization. America wants to negotiate the Trans-Pacific Partnership, but including Japan, which wants to protect its farmers, while excluding China, which is the largest economy in Asia, makes the process more than a little complicated. As for a U.S.-European Union agreement, France is standing in the way and other member states are likely to resist liberalization in one area or another.

Only on taxes is more progress likely—unfortunately. As Dan Mitchell long has pointed out, attacks on “tax havens” and such are primarily attempts to mulct more money out of the productive to subsidize the influential. (Influential and greedy. Indeed, higher taxes are used to satisfy perhaps the basest of human emotions, envy.)

Transparency is a better objective, but the greatest offenders are non-G8 members, especially in the Third World. As I point out:

The most important single step in this direction the G8 could take would be to discourage rather than encourage government-to-government transfers, or misnamed “foreign aid.” (G8 gatherings usually include boilerplate promises to up official development assistance.) The wealthy nations should cut the financial windpipe of the most corrupt and wasteful regimes.  Private humanitarian and development assistance from NGOs to private people, and private investment and trade to private companies, are far more likely to deliver positive economic and social results with more limited opportunities for graft and abuse.

Finally, the G8 involves a curious anomaly for the U.S. While Washington pursues greater economic integration in the name of encouraging prosperity and growth, the U.S. could achieve the same result by reducing subsidies to the same countries. The Cold War has been over for 24 years. World War II ended 68 years ago. It really is time for Washington to stop defending Europe and Japan, as well as a number of other, non-G8 defense dependents, such as South Korea.

The Obama administration could make this G8 meeting more useful than normal by adding real substance to the agenda.

Richard Epstein’s Ricochet Post on the NSA

Over at the Ricochet website, Richard Epstein elaborates on his defense of the NSA surveillance programs that were recently exposed by Edward Snowden.  In this post, I want to scrutinize some of Epstein’s observations and arguments.

Epstein begins by waving off the track record of government abuse generally.  Forget about the recent IRS scandal and the Associated Press wiretaps, he says, we must focus instead on the “parts of the government” that are organized to address terrorist activity.  According to Epstein, those parts of the government “seem to have performed well.”  Thus, he concludes, we should have confidence in the federal government’s efforts to stop terrorists.

Let’s take a closer look at the “parts of the government” that address terrorism:

•    The Federal Bureau of Investigation:  The Inspector General of the Department of Justice found that between 2003 and 2007, the FBI violated the law or government policies as many as 3,000 times as agents collected phone and financial records.  A few years later, another investigation found that the FBI repeatedly broke the law while monitoring telecommunications.  Major telecom companies had their employees detailed to work in FBI office space and they would respond to very informal verbal requests for phone records, including the “calling circles” of certain reporters.  One FBI agent said it was like having an ATM next to his desk.

•    The Central Intelligence Agency: It is still hard to believe that the American government hid prisoners from the Red Cross and engaged in torture, but it happened.  In 2005, CIA Director Porter Goss went on a TV show and said “What we do does not come close to torture … We do debriefings.”  The American public was repeatedly misled about the prisoner policies, but we later learned about the “black sites” and “ghost prisoners.”  The CIA also destroyed audio and video tapes of its interrogation practices even after the federal courts issued orders to preserve such evidence.

•    The Pentagon:  We have also seen problems in the U.S. military.  The Pentagon kept a database of persons who protested against the Iraq war.  We also know that American prisoners, such as John Walker Lindh and Jose Padilla, were badly mistreated while in military custody.  And those were among the most highly publicized cases.  (The treatment of Bradley Manning is worth mentioning even though he is not an accused terrorist.)  For the non-publicized cases, let’s just recall the letter from U.S. Army Captain Ian Fishback to Senator John McCain: “Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq.”