Topic: Cato Publications

A No-Brainer: Bad for Privacy and Liberty

CNET journalist Declan McCullagh has lit up the Internets today with his reporting on a revamped Senate online privacy bill that would give an alphabet soup of federal agencies unprecedented access to email and other online communications.

Leahy’s rewritten bill would allow more than 22 agencies – including the Securities and Exchange Commission and the Federal Communications Commission – to access Americans’ e-mail, Google Docs files, Facebook wall posts, and Twitter direct messages without a search warrant. It also would give the FBI and Homeland Security more authority, in some circumstances, to gain full access to Internet accounts without notifying either the owner or a judge.

This would be an astounding expansion of government authority to snoop. And it comes at a time when the public is getting wind through the Petraeus scandal of just how easy it already is to access our private communications.

Assuming McCullagh’s reading of the draft he obtained is remotely plausible, Senate Judiciary Committee Chairman Patrick Leahy (D-VT) should reconsider his current course–if he wants to maintain the mantle of a privacy leader, at least.

The Washington, D.C., meta-story is almost as interesting. Who is where on the bill? And when? The ACLU’s Christopher Calabrese told McCullagh last night, “We believe a warrant is the appropriate standard for any contents.” Freedom Works came out of the gate this morning with a petition asking for oppositions to Senator Leahy’s revised bill.

The Center for Democracy did not have a comment when McCullagh asked, though spokesman Brock Meeks suggests via Twitter today that McCullagh didn’t try hard enough to reach him. The reason that’s important? CDT has a history of equivocation and compromise in the face of privacy-invasive legislation and policies. At this point, the group has said via Twitter that they “wouldn’t support the rewrite described in CNET.” That’s good news, and it’s consistent with people’s expectations for CDT both on the outside and within.

There will undoubtedly be more to this story. Emails should not only be statutorily protected, but Fourth Amendment protected, based on the framework for communications privacy I laid out for the Supreme Court in Cato’s Florida v. Jardines brief.

This Month’s Cato Unbound: The Online Education Revolution

As Joseph Schumpeter famously wrote, markets are agents of “creative destruction”: when market forces are free to operate, and when entrepreneurs are free to act on their ideas, the old must often give way to the new.

Innovation and cultural dynamism are the hallmarks of a free economy. This state of constant flux is to our way of thinking a welcome and valued thing. Only an economy that is constantly in transition can hope to approximate the changing needs and wants of a robust and flourishing society.

Our love of dynamism is one reason why libertarians aren’t really conservatives, and why we might even wish that we could claim the label “progressive” for ourselves—if it hadn’t been taken, long ago, by individuals whose beliefs differ sharply from our own.

At Cato Unbound this month we are discussing what may prove to be a remarkable example of creative destruction. Within the last few years, Massive Online Open Courses—MOOCs, for short—have become one of the most important trends in higher education. As our lead essayist Alex Tabarrok argues, traditional higher education hasn’t changed substantially for centuries. Yet there is no good reason why this should be, not with all of the new information technology that the market has put at our disposal.

Together with his colleague Tyler Cowen, Tabarrok has founded Marginal Revolution University, which is planned as a growing series of free, online courses that anyone can take. The lectures are brief, watchable on your own schedule, viewable on mobile devices, and replayable. You can ask questions of the professors and receive detailed, personalized feedback. You can study in a group or entirely on your own, and students are invited to create supplemental videos that might be included in future class sessions.

MR University, as it’s called for short, hopes to deliver flexible, inexpensive higher education to the masses, in a way that Oxford, Cambridge, and Harvard—for all their tradition—never could. And it’s just one small player in a burgeoning new educational sector. So how should educators and policymakers think about these developments?

To answer that question, we have recruited a panel of distinguished commentators: Siva Vaidhyanathan is the Robertson Professor in Media Studies and Chair of the Department of Media Studies at the University of Virginia; Alan Ryan is the former Warden of New College, Oxford, and a frequent commentator on developments in liberal education; and Kevin Carey is director of the education policy program at the New America Foundation.

As always, Cato Unbound readers are encouraged to take up our themes, and enter into the conversation on their own websites and blogs, or on other venues. We also welcome your letters. Send them to jkuznicki at cato dot org. Selections may be published at the editors’ option.

Zimbabwe’s Four-Year Anniversary—From Hyperinflation to Growth

In mid-November 2008, Zimbabwe recorded the world’s second-highest hyperinflation. Today, it can boast strong growth and single-digit inflation rates. In 2008, Zimbabwe’s annual real GDP growth rate was a miserable -17.6 percent and its annual inflation rate was 89.7 sextillion percent—that’s roughly 9 followed by 22 zeros.

So how did Zimbabwe go from economic ruin to an annual GDP growth rate of 9.32 percent in 2011, with estimates of relatively strong growth rates through 2013?  As I predicted in early 2008, the answer is simple: spontaneous dollarization brought an end to the horrors of hyperinflation.

In late 2008, the people of Zimbabwe spontaneously dollarized the economy. Thiers’ Law prevailed: good money drove out bad, and the government’s hands were tied. Indeed, the government was forced to officially dollarize in 2009. Since then, Zimbabwe has enjoyed positive GDP growth rates, a feat not accomplished since 2001 (see accompanying chart).

 

While these achievements are cause for celebration, there are still problems in paradise: Robert Mugabe continues to hold the reins of power; Zimbabwe’s “Ease of Doing Business” ranking is a dismal 172nd out of 185; and “change” is, in short, hard to come by. In addition, the government’s external debt is now close to $12.5 billion and lending rates between Zimbabwe’s embattled banks are as high as 25 percent. To top it off, the Zimbabwean government is attempting to force banks to buy its treasury bills at significantly discounted rates, after its debt auction flopped in early October. Talk about ruling with an iron fist.

If this isn’t bad enough, Zimbabwe’s official statistics have produced a very low signal-to-noise ratio—one that, quite frankly, leaves one listening to static. Both the quantity and quality of official data, ranging from migration statistics to trade figures, are in short supply, particularly data from the period of Zimbabwe’s 2007-08 hyperinflation.

None of this comes to a surprise to me. After all, as far as Zimbabwean officials are concerned, the country’s hyperinflation peaked in July 2008, with a monthly inflation rate of 2,600 percent. After this point, Zimbabwe stopped collecting and reporting data on price changes, throwing a shroud of secrecy over the country’s hyperinflation disaster. In reality, hyperinflation continued after July 2008, growing at an exponential rate until mid-November 2008.

Alex Kwok and I lifted the shroud on this hyperinflation in our 2009 Cato Journal article. We determined that Zimbabwe’s hyperinflation actually peaked in mid-November 2008, with a monthly rate over 30 million times higher than the final inflation rate reported by the government. In an attempt to correct the government’s lying statistics, I have contacted high officials in Zimbabwe via telephone and email. But, I have been stonewalled, given a bureaucratic runaround.

The last thing the Mugabe government seems to be interested in is an accurate account of the world’s second-highest hyperinflation. Lying statistics remain the order of the day.

Drug-Sniffing Dogs Are Sense-Enhancing Technology

The Supreme Court heard oral argument yesterday in Florida v. Jardines, a case that examined whether bringing a drug-sniffing dog to the front door of a home looking for drugs was a Fourth Amendment search.

Having attended the oral argument (transcript; audio forthcoming), my sense is that a majority on the Court thinks dog-sniffs at front doors (absent a warrant) go too far. But few of the justices know why. The one who does is Justice Kagan.

What rationale might the Court use to decide the case? Even after United States v. Jones threw open Fourth Amendment doctrine, the instinct for using “reasonable expectation of privacy” analysis is strong. (I’ve joked that many lawyers think the word “privacy” can’t be uttered without the prefix “reasonable expectation of.”) This is where much of the discussion focused, and Justice Breyer seemed the most firmly committed to its use.

But the insufficiency of “reasonable expectation” doctrine for providing a decision rule was apparent when Breyer teed up Jardines’s counsel to knock the case out of the park. There was much discussion of what one reasonably expects at the front door of a home. Neighbors may come up. Trick-or-treaters may come up. Neighbors may come up with their dogs. The police may come to the door for a “knock and talk.” Neighbors, trick-or-treaters, dogs, and police officers may all come up and discover odors coming from the house. What makes the drug-sniffing dog unexpected?, Justice Breyer asked:

Do in fact policemen, like other people, come up and breathe? Yes. Do we expect it? Yes, we expect people to come up and breathe. But do we expect them to do what happened here? And at that point, I get into the question: What happened here?

Joelis Jardines’s counsel could not say what made the dog unexpected.

Perhaps property law draws the line that excludes government agents with drug-sniffing dogs, while allowing other visitors to come to the door. Not so. Justice Alito in particular pressed Jardines’s counsel for any case that had excluded dogs (drug-sniffing or otherwise) from the implied consent one gives to visitors on the walk and at the front door. The argument is unavailing, this idea that Florida’s property law (put into play by the majority holding in Jones, which relied on property rights) solve this case. Florida property law doesn’t exclude dogs from the implied permission it gives to lawful visitors on residential property.

None of this is to say that the government had it easy. Florida’s counsel had uttered just three sentences when Justice Kennedy informed him that the rule from Illinois v. Caballes would not carry the day. In Caballes, the Court found there to be no search at all when government agents walked a drug-sniffing dog around a car stopped for other reasons. (I attacked what I called the “Jacobsen/Caballes corollary” to the Katz decision in the Cato Institute’s brief to the Court, and also in this Jurist commentary.)

It won’t be the rule from Caballes. So what is the rationale that decides this case?

Justice Scalia was on the scent when he reasoned with the government’s counsel about what might be done with binoculars.

“As I understand the law,” he said, “the police are entitled to use binoculars to look into the house if—if the residents leave the blinds open, right?”

Florida’s counsel agreed.

“But if they can’t see clearly enough from a distance, they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?”

“They’re not, Your Honor.”

“Why isn’t it the same thing with the dog?”

Justice Kagan knows that it is. And she used Justice Scalia’s reasoning in Kyllo v. United States, the precedent that is on all fours with this case.

She recited from Kyllo: “ ‘We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.’” And she asked Florida’s counsel, “[W]hat part of that language does not apply in this case?”

“Franky’s nose is not technology,” he replied, referring to the dog. “It’s—he’s using—he’s availing himself of God-given senses in the way that dogs have helped mankind for centuries.”

The existence of dogs in human society for centuries might help the government if dogs had been used for drug-detection all this time. And then only if the question was what it is reasonable to expect.

What matters is that a drug-sniffing dog is indeed a form of sense-enhancing technology. Selected for its strong sense of smell, and trained to convey when particular odors are present, a drug-sniffing dog makes perceptible to law enforcement what is otherwise imperceptible.

And that is the very definition of searching. At least as Black’s Law Dictionary has it: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view.”

Police officers use dogs to search for drugs and other materials in which they are interested but which they cannot see by themselves. A drug-sniffing dog is a cuddly chromatograph.

And just now, quietly, you have seen at work the rationale that the Supreme Court should use to decide Florida v. Jardines. Was it a search to bring a drug-sniffing dog to the front door of a house? The Court should apply the plain meaning of the word “search” to the facts of the case that has come before it. There’s no need for doctrine at all.

The Fourth Amendment in the Supreme Court This Week

Prior to the development of trade and commerce, movable property was “not esteemed of so high a nature, nor paid so much regard to by the law,” Blackstone tells us in his commentaries on the laws of England. Such property in transit was routinely confiscated by authorities or tariffed at exorbitant rates.

When commercial relations expanded, the quantity and value of personal property increased, and the law “learned to conceive different ideas of it.” Legal protection for movable property increased.

In parallel to the growth of commerce in movables centuries ago, commerce in information is on the rise today. It may be time to “conceive different ideas of it” as well—different ideas that accord information similar protection. This is what a group of amici have encouraged the Supreme Court to do in a brief on an important privacy case being argued this week.

In Clapper v. Amnesty International, the Gun Owners Foundation, Gun Owners of America, Inc., the U.S. Justice Foundation, the Downsize D.C. Foundation, DownsizeDC.org, and the Conservative Legal Defense and Education Fund have argued that the Court should recognize a property interest in confidential communications. Doing so would more clearly establish the standing of the respondents in this case to challenge the global wiretapping program Congress established in the FISA Amendments Act of 2008.

William J. Olson, lead counsel on the brief, articulated the issues well in an email distributing it:

Our amicus brief in the Clapper case extrapolates from the court’s holding in Jones and identifies the property interests at stake in this case as confidential communications that are critical to the practice of law and of the enterprise of journalism. Using a property analysis, the citizens in Clapper have a protectable property interest in their electronic communications as they do in their written communications. Thus, even though plaintiffs are not “targeted” by the Government, the Government’s contention that their search and seizure of plaintiffs’ communications is only “incidental” is unavailing.

Jones v. United States, of course, is the case decided in January, in which government agents tracked a suspect’s car for four weeks using a GPS device without a valid warrant. The Supreme Court found unanimously that this violated the Fourth Amendment. My article in the most recent Cato Supreme Court Review (2011-12) analyzes the case, and you can get a taste of that analysis in the most recent Cato Policy Report (September/October 2012).

I also discussed the Fourth Amendment status of communications in the Cato Institute’s brief in Florida v. Jardines, which is also being argued in the Supreme Court this week. The Court found Fourth Amendment protection for postal mail in an 1877 case, but stumbled when faced with the next iteration of communications technology.

In the year this Court decided Ex Parte Jackson, both Western Union and the Bell Company began establishing voice telephone services. Gerald W. Brock, The Second Information Revolution 28 (Harvard University Press, 2003). Now, instead of written messages in the post, representations of the human voice itself began moving across distance, at light speed, in a way few people understood. This is the technology this Court confronted in Olmstead v. United States, 277 U.S. 438 (1928).

The Court handled this technological development poorly. Chief Justice William Taft fixed woodenly on the material things listed in the Fourth Amendment’s search and seizure clause. Wiretapping had not affected any of the defendants’ tangible possessions, he found, so it had not affected their Fourth Amendment rights. Olmstead, 277 U.S. at 464. In dissent Justice Butler noted how “contracts between telephone companies and users contemplate the private use” of telephone facilities. “The communications belong to the parties between whom they pass,” he said. Olmstead, 277 U.S. at 487 (Butler, J., dissenting). Cf. Ex Parte Jackson, 96 U.S. 727 (1877) (“Letters and sealed packages … are as fully guarded from examination and inspection … as if they were retained by the parties forwarding them in their own domiciles.”).

Florida v. Jardines is not a communications case. The issue is whether the sniff of a trained narcotics-detection dog at the front door of a house is a Fourth Amendment search requiring probable cause. Cato’s brief invites the Court to dispense with the unworkable “reasonable expectation of privacy” test, using the plain meaning of “search” instead.

Black’s law dictionary defines “search” as “looking for or seeking out that which is otherwise concealed from view.” Smells that only trained dogs can detect are indeed otherwise concealed from humans.

Familiar though ordinary pet dogs are, a trained dog is a chromatograph. The Court should follow the Fourth Amendment’s language and precedents like Kyllo v. United States to find that a drug-dog’s sniff is a search.

A companion to Jardines, Florida v. Harris, is being argued the same day. That case will examine the sufficiency of drug-dogs as evidence of wrongdoing, an issue that has not received careful examination in the past.

So it’s a big week for the Fourth Amendment in the Supreme Court. Stay tuned for developments.

‘The Libertarian Vote’ — Now in an Ebook

What a long way we’ve come since David Kirby and I first started writing about the libertarian vote in 2006. Back then liberal blogger Matt Yglesias neatly summarized the conventional political wisdom: the libertarian vote is “zero percent,” “a rounding error in the scheme of things.” Why would anyone care what libertarians think? And National Review’s Ramesh Ponnuru suggested that Republicans would actually lose votes by appealing to libertarians.

In our new ebook, The Libertarian Vote: Swing Voters, Tea Parties, and the Fiscally Conservative, Socially Liberal Center, Kirby, Emily Ekins, and I bring together our studies and other writings on libertarian voters, along with some spiffy new graphics. (That’s the Amazon link; for multiple formats, go here.)

Today, libertarians are an increasingly influential and accepted part of the political mix. Ron Paul went deep into the 2012 Republican presidential primary, drawing crowds of thousands of young people and 2.1 million votes; and his son Sen. Rand Paul is being joined by other libertarian-leaning members of both houses of Congress. Tea partiers have strong libertarian roots, as Kirby and Emily Ekins discuss in two articles in this ebook. The “Audit the Fed” bill passed the U.S. House 327 to 98; all but one Republican and 89 Democrats voted yes. In academia, social scientist Jonathan Haidt teamed up with scholars at UCLA, USC, and NYU to conduct the largest study ever on “libertarian psychology.” Nick Gillespie and Matt Welch write about a “libertarian moment” in their book Declaration of Independents.

The latest Governance Survey from Gallup, earlier visions of which are cited throughout the book, finds 25 percent of respondents gave libertarian responses to two questions (“government is trying to do too many things” and “government should promote traditional values”), up from 17 percent in 2004, 21 percent in 2006, and 23 percent in 2008 and 2010. Analysts from GOPAC to Nate Silver at the New York Times have tried to measure the libertarian – or “fiscally conservative, socially liberal” – constituency.

Read all about it in The Libertarian Vote.

Those who doubt the relevance of the libertarian vote might consult the last commentary in the book, “The Real Swing Voters,” which finds evidence in an August 2012 ABC-Washington Post poll that the truly independent voters still up for grabs lean strongly libertarian.

‘The Obamacare Cases Keep Coming’

Jonathan Adler at National Review Online:

During oral arguments in the Supreme Court challenge to the individual mandate, NFIB v. Sebelius, the plaintiff’s lawyer Paul Clement warned the justices not to make the same mistake they made in the 1970s with Buckley v. Valeo. In Buckley, the Court upheld portions of the post-Watergate campaign-finance reforms while invalidating others. The result was a muddled statute that Congress and the courts would repeatedly revisit for years to come. Repeating this approach with the Patient Protection and Affordable Care Act, Clement cautioned, could produce similar undesirable results. It’s too soon to know how quickly Congress will revisit the PPACA, but Clement’s warning already seems to be coming true in the courts…

More than three months after the Court’s decision, over three dozen legal challenges to the PPACA or its implementation are pending in federal courts, and more are sure to come.

At a Cato briefing on Capitol Hill this Wednesday, Adler and I will be speaking about one of those cases.