Archives: 03/2015

The Fatal Conceit of the “Right to be Forgotten”

Intelligence Squared hosted a lively debate last week over the so-called “Right to be Forgotten” embraced by European courts—which, as tech executive Andrew McLaughlin aptly noted, would be more honestly described as a “right to force others to forget.”  A primary consequence of this “right” thus far has been that citizens are entitled to demand that search engines like Google censor the results that are returned for a search on the person’s name, provided those results are “inadequate, irrelevant, or no longer relevant.”  In other words, if you’re unhappy that an unflattering item—such as a news story—shows up as a prominent result for your name, you can declare it “irrelevant” even if entirely truthful and ask Google to stop showing it as a result for such searches, with ultimate recourse to the courts if the company refuses.  Within two months of the ruling establishing the “right,” the company received more than 70,000 such requests.

Hearteningly, the opponents of importing this “right” to the United States won the debate by a large margin, but it occurred to me that one absolutely essential reason for rejecting this kind of censorship process was only indirectly and obliquely invoked.  As even the defenders of the Right to be Forgotten conceded, it would be inappropriate to allow a person to suppress search results that were of some legitimate public value: Search engines are obligated to honor suppression requests only when linking some piece of truthful information to a person’s name would be embarrassing or harmful to that person without some compensating benefit to those who would recieve the information.  Frequent comparison was made to the familiar legal standards that have been applied to newspapers publishing (lawfully obtained) private information about non-public figures. In those cases, of course, the person seeking to suppress the information is typically opposed in court by the entity publishing the information—such as a newspaper—which is at least in a position to articulate why it believes there is some public interest in that information at the time of publication. 

Stingrays and Police Secrecy

The New York Times this week published a troubling article detailing the secrecy surrounding police use of Stingray cellular site simulators.  Essentially, these devices (which can be mounted on vehicles or carried by hand) mimic the signals of a cell phone tower in order to force cell phones in a given area to connect to the device.  Both data on the phone (including numbers, texts, emails, and any other data stored on the phone) and the phone’s physical location can then be accessed and recorded by police.

Additionally concerning is the extensive use of non-disclosure agreements by the Harris Corporation, which sells the devices, to prevent the public (and in some cases even judges, defense attorneys, and prosecutors) from finding out how these devices are being used or even whether a given department owns any.   The preference for secrecy is so powerful that prosecutors have dropped serious criminal charges simply to avoid having the police use of Stingrays subjected to examination by defense attorneys or judges.

According to the Times,

The confidentiality has elevated the stakes in a longstanding debate about the public disclosure of government practices versus law enforcement’s desire to keep its methods confidential. While companies routinely require nondisclosure agreements for technical products, legal experts say these agreements raise questions and are unusual given the privacy and even constitutional issues at stake.

The stated reason for the secrecy is the common refrain that terrorists will circumvent the technology if they know what law enforcement is up to.  However, a recent ACLU report was unable to uncover a single instance of these devices being used to bring domestic terrorists to justice in any jurisdiction surveyed. 

The ACLU report estimates that Stingrays are in wide and rapidly increasing use in law enforcement agencies across America.  However, there appears to be very little oversight structure for police departments, legislatures, or courts governing the use of these devices. In some instances, it seems that courts have even unwittingly been authorizing their use without the judge’s full understanding.  For instance, a sampling of applications for court orders from Florida law enforcement agencies informs the judge that the order is for cell phone records, but doesn’t mention anything about how they’re to be obtained.  Police claim such vague orders authorize Stingray deployment, but some judges have been less than enthused upon finding out.

The House Budget Proposal Leaves Much to Be Desired

House Budget Committee Chairman Tom Price (R-GA) released his budget proposal this morning, which outlines spending priorities for 2016 through the next decade. The proposal is a mixed bag. It includes some reform steps, but also fails to aggressively confront the dire fiscal realities facing the nation with specific spending-cuts.

The positives:

Spending Restraint– The budget proposes $43.2 trillion of total spending over the next decade, which is $5.5 trillion below baseline projections from the Congressional Budget Office (CBO). Ten year projected deficits are also much lower than CBO projections; $1.3 trillion compared to $7.2 trillion. This proposal balances the budget within ten years, moving us closer to solving our long-term fiscal challenges.

ObamaCare Repeal– Price’s proposal includes full repeal of ObamaCare including all of its health care and tax provisions. This constitutes a large share of the spending cuts, $2 trillion of the $5.5 trillion.

The negatives:

Defense–The 2011 bipartisan Budget Control Act (BCA) set caps on defense and nondefense discretionary spending through 2021. Many Republicans have pushed Price to rescind the caps on defense spending, claiming that they are too draconian and will undermine America’s security. Other Republicans pushed to keep the BCA caps as an effective restraint on spending. The Price budget goes for the easy political solution: it retains the BCA caps for defense spending for fiscal year 2016, but it increases the “emergency” defense spending account, known as Overseas Contingent Operations (OCO), by $16 billion compared with fiscal year 2015. This allows Price to honor the BCA, while violating its spirit. Under this plan, the U.S. will spend $387 billion more on defense over the next decade than CBO baseline projections.

Entitlement Reform–CBO projects that 85 percent of spending growth over the next decade will be due to Social Security, Medicare, and net interest. The Price budget acknowledges the need to reform Social Security and Medicare, but fails to meet the challenge. The budget does not include a plan to reform Social Security, other than saying it needs a “long-term solution” from a “bipartisan commission.” Medicare reforms don’t start until 2024. Waiting up to a decade to reform these two programs is a dereliction of duty.

Tax Reform–The budget proposal is vague about this important topic. It urges Congress to consider tax reform, but does not detail any specific reforms, nor does it provide a timeline for considering proposals.

Overall, Price’s budget proposal would cut spending and balance the budget, but it still leaves much to be desired.

Washington Should Stop Equating Ugly Regimes and Security Threats

President Obama raised eyebrows last week when he issued an executive order declaring Venezuela to be a threat to national security.  It would be pertinent to ask just how that deeply divided, nearly bankrupt country could menace the security of the global superpower.  Venezuela has no long-range ballistic missiles or bombers, much less nuclear weapons.  It does not have a large, well-equipped army.  The Venezuelan navy is both small and antiquated.  Although rumors continue to circulate that the leftist government of President Nicolás Maduro flirts with terrorist organizations in neighboring Colombia and elsewhere, those reports remain little more than rumors.

Most telling, Obama’s executive order did not cite evidence that Venezuela actually posed a threat to the security and well-being of the United States.  Instead, it focused on the Maduro regime’s ill-treatment of the Venezuelan people.  The executive order is a textbook example of an overly broad definition of national security.  The White House emphasized that the order imposed sanctions on officials who undermined democratic processes or institutions, abused human rights, were involved in prohibiting or penalizing freedom of expression, or were guilty of corruption.  White House spokesman Josh Earnest declared that the United States now had the tools to block the financial assets of Venezuelan officials “past and present” who dare “violate the human rights of Venezuelan citizens and engage in acts of public corruption.”

Those are all tragic aspects of that country’s dysfunctional political system.  There is little question that Venezuela’s government is horrifyingly corrupt and autocratic.  Cato’s Juan Carlos Hidalgo has ably described the many abuses committed by both Maduro and his predecessor and mentor Hugo Chávez..  It may well take Venezuela a generation or more to recover from the socialist idiocies of those two rulers.  But as I point out in the pages of the National Interest Online,  just because a regime is repugnant does not make it a credible security threat to the United States.

Obama’s executive order is ominous because it signals a return to the overuse of national security justifications that was so common in previous administrations.  It should be recalled that U.S. officials asserted, apparently while maintaining straight faces, that such small, weak adversaries as North Vietnam, Serbia, Iraq, and Cuba posed dire national security threats.  The ensuing policies produced frustrating, counterproductive results.  Indeed, in the cases of Vietnam and Iraq, the outcomes of such a promiscuous invocation of U.S. security needs were disastrous wars that squandered hundreds of billions of tax dollars and snuffed out the lives of thousands of American military personnel.  One might hope that policymakers had learned from those bruising experiences and would avoid such folly in the future.

It is imperative to adopt a more rigorous standard about what does and does not constitute a threat to national security.  A foreign regime’s domestic behavior, however reprehensible, does not per se pose a menace to America.  The actions of Maduro and his henchmen fall into that category.  Venezuela’s government is riddled with corruption and behaves in a disturbingly repressive fashion toward political opponents.  But that makes Venezuela an obnoxious neighbor, not a security threat to the United States.  

Administration Should Speed Military Withdrawal From Afghanistan

America has been at war in Afghanistan for more than 13 years. U.S. troop levels peaked at 140,000 in 2010. More than 2200 Americans died in a conflict reflecting little more than purposeless inertia.

The U.S. is leaving, but not entirely and maybe not soon. Warned NATO commander Gen. Philip Breedlove in January, “we are going to continue to have casualties.” The formal combat mission might be over, but combat is not.

Roughly half of the 10,600 American troops are supposed to depart by the end of the year, with the rest scheduled to go in 2016. But the administration is considering slowing the withdrawal.

Washington intervened in Afghanistan with two overriding objectives:  destroy al-Qaeda and oust its Taliban hosts. The U.S. quickly fulfilled both goals. But then the Bush administration lost interest in the country.

Instead of ending Washington’s half-hearted misadventure at nation-building, the Obama administration twice doubled down. Some progress was made, but when I visited I found only limited confidence in private.

Washington and its allies built a large government bureaucracy and security force in Kabul, but on a potential foundation of sand. The Afghan government is noted for venality, incompetence, and corruption.

UT-Austin’s Secret Racial Preferences Undermine Its Admissions Policy

In 2013’s Fisher v. University of Texas at Austin, the Supreme Court delivered a blow to the use of racial preferences in university admissions by reversing a lower-court opinion that had allowed the use of race in UT-Austin’s admissions policy.

That wasn’t the end of the story, however; after holding that the university bears the burden of proving that its use of racial preferences is necessary and narrowly tailored—a point on which university administrators are due no deference—the Court remanded the case back to the U.S. Court of Appeals for the Fifth Circuit. That court was to determine whether UT had offered evidence sufficient to prove that its use of race was “narrowly tailored to achieving the educational benefits” of diversity. Recall that UT-Austin’s admissions program fills most of its spots through a race-neutral Top Ten Percent Plan—which offers admission to high school graduates in the top 10 percent of their class—then fills the remaining seats with a “holistic” rating that takes into account various factors typical to admissions programs (including race for certain preferred minorities).

Well, on remand, the Fifth Circuit panel split 2-1 but once again sided with the university, holding that even if the Top Ten Percent Plan already provided a “critical mass” of minority students, the use of racial preferences was necessary to achieve some other special kind of diversity. The dissenting opinion by Judge Emilio Garza pointed out how the majority deferred, once again, to the university’s hand-waving claim that its use of racial preferences is tailored to an actual, appropriate interest, without having actually proven anything approaching what is constitutionally required.

After being denied a rehearing before the full Fifth Circuit, Abigail Fisher, the former applicant suing UT-Austin, has now petitioned the Supreme Court to hear her case once again. And Cato has again filed a brief supporting that petition. We argue that the Court should hear the case because (1) UT-Austin’s “qualitative” diversity rationale is still a complete and unjustified sham, (2) the university continues to openly flout its disregard of Supreme Court precedent governing the use of race in higher education admissions, and (3) leaving the Fifth Circuit’s shockingly deferential and judiciously lazy ruling on the books will give other schools a roadmap for circumventing the Equal Protection Clause’s limitations on the use of race.

Among other evidence we marshal is the recently discovered program of secret racial preferences run out of the university president’s office, which flouts Supreme Court precedent and belies the stated rationale of UT’s admissions policy. This is just the latest example of college administrators’ massive resistance to the Fourteenth Amendment’s charge not to discriminate based on race or ethnicity.

The Court will decide whether to take up Fisher v. UT-Austin (again) later this spring.

Cato legal associate Julio Colomba contributed to this blogpost.

You Ought to Have a Look: The Price Is Right, the Letters Are Wrong, and Climate Research Is Booming

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

The Wall Street Journal last week, in its Notable and Quotable section highlighted a set of rather enlightened tweets from a perhaps, at first glance, a rather unusual source—Pat Sajak of Wheel of Fortune fame.  Here are a couple particularly interesting/amusing ones from the WSJ coverage:

Feb. 27: New rule: you can’t trust research financed by corporations. Only government-funded research is pure and unbiased.

Feb. 20: Bad climate news. The hockey stick is frozen solid.

Feb. 15: Weather isn’t climate. Weather can be colder but climate warming. Climate is warming whether the weather is…um, uh…

Jan. 10: Tried to pay for lunch with a carbon credit. Had to switch to Visa.

Nov. 18: Thinking of bypassing the wheel & the puzzles, and determining winners by executive action. Will save a lot of time.

Turns out Sajak, a former TV weatherman, is no stranger to global warming skepticism (or controversy). In fact, recently he wrote an article for Ricochet.com titled “I Deny I’m a Denier,” in which he derides climate change alarmists for the vicious attacks he gets whenever he expresses his less-than-alarming opinions via his @patsajak twitter feed.  He then goes on to outline why he is a “skeptic in the matter of man-made global warming”:

I’m also often reminded by my global warming (climate change?) Twitter buddies that climate is not weather. The fact that it’s extraordinarily cold in particular areas at particular times does not negate their argument. The climate—hockey stick and all—will doom us if we do not act quickly and drastically. I find the climate vs. weather argument interesting because weather events can only prove their point; they cannot disprove it. The historically calm Gulf hurricane period since Katrina—despite predictions of increasingly strong and devastating storms—can be explained away. However, it’s a safe bet that, had the last decade been marked by more violent activity, it would have been more evidence that The End Days were near. Snowless winters in England are a sign of the climate changing times, but when the snow and ice return…well, it’s weather, not climate.

So here we are. The science is settled. Extreme weather of any kind confirms it. Weather that seems to fly in the face of predictions is irrelevant. So how can one possibly deny all that? I can’t, because I’m not a scientist. But can’t I be just the teeniest bit skeptical?

The rest of Sajak’s Richochet.com post describes his treatment at the hands of his detractors. The whole thing is worth checking out. Y_U _UGHT T_ HA_E A L__K!