Topic: Law and Civil Liberties

Data Mining or the Fourth Amendment?

Boalt Hall Law Professor and Visiting AEI Scholar John Yoo writes in a short piece on the AEI website that we should consider using data mining to pursue terrorists. He makes at least two errors: one historical and one statistical.

Discussing the recent vogue for making U.S. law more like Britain’s, Yoo writes:

[I]ncreasing detention time or making warrants easier to come by merely extends an old-fashioned approach to catching terrorists. These tools require individualized suspicion and “probable cause”; police must have evidence of criminal activity in hand. Such methods did not prevent 9/11, and stopping terrorists, who may have no criminal record, requires something more.

It’s hard to put aside that the vogue for making U.S. law more like Britain’s would undo part of what the Revolutionary War was fought for. And Yoo’s placement of the phrase “probable cause” in quotes — I hope that’s not to suggest that the language of the Fourth Amendment is quaint.

But putting all that aside, Yoo’s first error has to do with more-recent history. He argues that traditional investigative methods “did not prevent 9/11.” But traditional investigative methods weren’t applied to the problem. 

Operatives like Khalid al Midhar — an individual with jihadist connections known to the United States — entered the country, left in June 2000, and returned July 4, 2001 on a visa the United States gave him. As the 9/11 Commission pithily noted, “No one was looking for him.” Traditional investigative methods can’t be said to have failed when they weren’t being used.

Yoo’s second error is to believe that data mining can help locate terrorists. Data mining cannot be made useful in counterterrorism: The absence of terrorism patterns means that it is impossible to develop useful algorithms. The corresponding statistical likelihood of false positives would cause the results of a data mining operation to waste the time and energy of investigators while threatening civil liberties. 

Data mining does give a “lift” to marketers’ attempts to find people with certain propensities and interests. But the ”failure rate” (if the goal is to find new, willing customers) is typically above 95%. This is with hundreds of thousands, or even millions, of patterns to work with. Data mining also helps ferret out credit card fraud — again, using the thousands of instances of this crime that happen each year to develop useful algorithms.

Probability theory teaches that the percentage of false positives a test produces will rise dramatically as the incidence of the sought-after condition drops. If you’re searching American society for left-handed people (8–15% of the population) a data mining operation might work pretty well.  If you’re searching for the 10, 12, or two terrorists in the United States, an imperfect test will be useless, time-wasting, and thus harmful to the national security mission.

No, the Fourth Amendment is good policy as well as a part of the not-old-fashioned Constitution. It is better to focus investigations, not broaden them. The best way to find wrongdoing is to look where there is probable cause to believe something is afoot.

Presidential Public Financing Failure

The push is on to revamp and re-fund the public financing of presidential campaigns. 

Brad Smith and Robert Bauer have raised a number of doubts about the presidential system. A while ago, I wrote a policy analysis examining the effects of the presidential system. My new book, The Fallacy of Campaign Finance Reform, extends that argument.

Here I focus on one question:

The 1976 campaign finance law provided generous subsidies to presidential candidates pursuing party nominations and running in the general election. You would think that the availability of public money would increase the absolute number of candidates for the presidency compared to elections prior to 1976. Has the presidential system led to more candidates for the presidency, more choices for voters, and more competition for the highest office?

Apart from the major party candidates, nine presidential candidates in the general elections since 1948 have received more than 1 percent of the total vote in an election. Five of those candidates ran after the presidential system was created in 1976. Not all five accepted public financing. Ross Perot did not accept taxpayer financing in 1992, preferring to spend $65 million of his own money on his candidacy. Ed Clark, the Libertarian candidate in 1980, also did not take taxpayer financing. 

In all, six of the nine non-major party candidates who have made a mark in presidential elections since 1948 ran their campaigns without the help of the taxpayer. Moreover, the two top vote-getters during the period — George Wallace in 1968 and Ross Perot in 1992 — made do without subsidies.

The presidential system might be credited with three additional presidential campaigns in seven general elections (Ralph Nader in 2000, Ross Perot in 1996, and John Anderson in 1980). Nader received 2.7 percent of the vote, Perot got 8.4 percent, and Anderson obtained 6.6 percent. None of those candidates received a single electoral vote.

I wrote that the system “might be credited.” We should not conclude that because those candidates did use public money, they would not have made their races if the presidential system had not given them money. The private system in place in the seven general elections prior to 1976 produced four serious candidates apart from the major party candidates. Had the system not been enacted, Nader, Perot, and Anderson might also have raised enough money to challenge the major party candidates.

What about the party nominations? Most of the money paid out by the presidential system has gone to fund the conventions of the two major political parties (10 percent of all funding) and the major parties’ candidates in the general election (61 percent of all funding).

Candidates running in the primaries have received a little over $506 million, or about 29 percent of all outlays by the presidential system. That money has funded 83 candidates in the primaries. Of those, 71 were candidates for the nominations of the two major political parties. Of those 71, 55 candidates received over 1 percent of the total number of votes cast in a party’s presidential primaries for a given year, an average of 7.8 candidates each presidential election.

How does that compare with the number of primary candidates prior to the presidential funding system? The seven elections prior to 1976 included an average of 10.7 candidates in the party primaries. If we measure competitiveness by entry into a race, the years prior to public subsidy of presidential campaigns seem somewhat more competitive than the years after 1974. 

What’s the verdict? U.S. taxpayers have given candidates almost $2 billion to campaign for the presidency. That money has not bought more choice in the party primaries or in general presidential elections.

Another Asset Forfeiture Outrage

The Eighth Circuit Court of Appeals has ruled that police may keep the $124,700 they seized from Emiliano Gonzolez, an immigrant who by all appearances was attempting to use the money to start a legitimate business.

This is an outrageous ruling. Consider:

  • Gonzolez was never charged with any crime in relation to the money, much less convicted.
  • Gonzolez has an explanation for the money that a lower court found both “plausible” and “consistent.” He brought several witnesses forward to corroborate his story (in the preposterous land of asset forfeiture, property can be guilty of a crime, and the burden is often on the person the police seized the property from to prove he obtained it legally).
  • The government offered no evidence to counter Gonzolez’s explanation.
  • Instead, the court ruled that the mere fact that Gonzolez was carrying a large sum of money, that he had difficulty understanding the officer’s questions, that he incorrectly answered some of those questions (due, Gonzolez says, to fears that if police knew he was carrying that much money, they might confiscate it — imagine that!), and that a drug dog alerted to the car Gonzolez was driving (which, as dissenting judge Donald Lay noted, was a rental, likely driven by dozens of people before Gonzolez), was enough to “convict” the money of having drug ties, even if there wasn’t enough evidence to charge Gonzolez.The court ruled that despite the fact that Gonzolez’s witnesses were credible enough to, in person, convince a lower court he was telling the truth, on appeal, it, the appellate court, reading those witnesses’ testimony on paper, simply didn’t believe them.

    So the police get to keep the lifelong savings Gonzolez, his friends, and relatives had pooled to start a business. No charge and no conviction were necessary.

    The opinion itself — like most asset forfeiture cases — reads like something from a third-rate military junta. Actual excerpts:

  • “Possession of a large sum of cash is ‘strong evidence’ of a connection to drug activity.”
  • “…while an innocent traveler might theoretically carry more than $100,000 in cash across country and seek to conceal funds from would-be thieves on the highway, we have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking.”
  • “Gonzolez had flown on a one-way ticket, which we have previously acknowledged is evidence in favor of forfeiture.”
  • While the claimants’ explanation for these circumstances may be “plausible,” we think it is unlikely. We therefore conclude that the government proved by a preponderance of the evidence that the defendant currency was substantially connected to a narcotics offense.”
  • My emphasis added on the last point. The absurdity of these cases never fails to amaze when you actually see them in print. The money, not Gonzolez, was found guilty of drug crimes.

    The Civil Asset Forfeiture Reform Act of 2000 was supposed to rein in seizure outrages like this one. Critics of the bill at the time noted that it didn’t go nearly far enough.

    Looks like they may have been right.

    Check here for Cato’s research on asset forfeiture.

  • From Your Blog to God’s Ears

    Have blogs become part of the mainstream? Consider the evidence of a front-page story in Saturday’s New York Times, which reports on reaction to the federal court ruling that the NSA wiretapping program is illegal. The first three legal experts quoted are bloggers; two of the quotes are from the blogs, one appears to be from an interview with a lawyer-blogger. Stop writing those law review articles, legal scholars, and get thee to Blogger.

    Every Day in Every Way …

    Big-ticket items drive most discussions of politics and government, but let’s not forget to lament the small advances that help make big government what it is.

    At the outbreak of hostilities in southern Lebanon, my well-traveled colleague Tom Palmer expressed dismay that Americans overseas should expect a lift home courtesy of the U.S. government when they’ve gotten in harm’s way. Alas, by the end of July, Congress passed the Returned Americans Protection Act of 2006, which raised by $5 million the fiscal year 2006 limit on emergency assistance funds provided to U.S. citizens returning from foreign countries. Score one for bigger government — and for less responsible people.

    But the bill actually results in reduced spending, saving about three cents (net present value) per U.S. family. How could this be?

    A little legislative artifice did the trick. You see, the bill also allowed state food stamp agencies access to the National Directory of New Hires. They can use this database to verify employment and wage information for food stamp recipients using information on every newly hired American worker’s employment, wages, and receipt of unemployment insurance. With access to these data, state food stamp agencies will be able to better verify the income of their beneficiaries and reduce overpayments.

    Created “for the children“ — a tool for tracking down deadbeat dads — the National Directory of New Hires is slowly but surely being put to new uses, including now more careful administration of food stamps. For tens or hundreds of reasons that are largely good, systems like the NDNH database will expand until the point is reached where we are all under comprehensive surveillance. 

    Lost privacy is a cost of large government. In this case, the government has monetized worker data to economize on food stamp programs, masking the cost of scooping up American travelers caught overextended abroad. 

    A little more spending here, a little more surveillance there. Every day in every way …

    Judge Says NSA Wiretapping Program Unconstitutional

    The ACLU brought a constitutional challenge to the NSA’s controversial wiretapping program several months ago and the judge has now ruled the NSA program to be unconstitutional (click on the 06-10204 pdf). This is just the initial round of what will likely be a long legal fight.  The government will appeal and the battle will move to an appeals court, and then possibly to the U.S. Supreme Court.

    For additional background, go here and here.