Whose Side Are You On?

In an article about the wave of conservative reform under Louisiana governor Bobby Jindal, the New York Times writes:

Meanwhile the House is considering an income tax cut that would cost the state $300 million. 

Another way to say that would be:

Meanwhile the House is considering an income tax cut that would save the taxpayers $300 million.

It all depends on whether you identify with the taxpayers or the tax consumers.

In Memory of William Odom, An Appreciation

I was saddened to learn over the weekend that Lt. Gen. William E. Odom, USA (Ret.) – a military assistant to President Carter’s National Security Adviser Zbigniew Brzezinski, head of the National Security Agency under President Reagan, and an outspoken critic of the war in Iraq – had passed away from an apparent heart attack. He was 75 years old. His obituary reveals the extent of this man’s service to his country, and hints at his intellect and independence that I had grown to admire.

I did not know Gen. Odom very well, but I valued his wisdom and insight. Whenever I encountered him at meetings or informal receptions around town, I would gravitate toward him. He graciously shared his deep knowledge of defense and foreign policy issues, accumulated over many years in the military and in Washington. He was a terrific storyteller, and always generous with his time.

In recent years, especially, I respected his enormous courage in resisting mainstream opinion with respect to Iraq. He was one of a very few individuals who spoke out against the invasion before it occurred. After Saddam’s government fell, Gen. Odom made a strong case for why an expeditious military withdrawal from the country would serve U.S. interests, while a long-term occupation would undermine them. He made such arguments well before they were politically popular. (Read or listen to his comments at a Cato policy forum last year).

I have a strong suspicion that his outspokenness did not sit him in good stead with many of his one-time friends and benefactors, but he never seemed to care. Indeed, I sensed that he took some pleasure in it. For Bill Odom, being loyal to the truth was more important than being loyal to particular persons or groups.

In that respect, at least, Gen. Odom was a rare breed in Washington. He will be sorely missed.

Only in France, Part II

Not surprisingly, the French are leading an effort to impose EU-wide regulations on executive compensation, as reported by the UK-based Independent:

France, which takes over the presidency of the EU on 1 July, will ask finance ministers to consider a European directive to curb disproportionate bonuses or golden handshakes to company bosses. …The French finance minister, Christine Lagarde, said companies must put their own house in order or face a rash of national, or EU, legislation to clamp down on “excesses”. French officials said Paris felt that, without such an EU-wide curb, large companies or highly paid executives would evade national curbs by exercising their right to move from one EU country to another. …President Nicolas Sarkozy has already spoken out against large “golden parachutes” to failed business leaders. Although often presented in Britain and the US as a kind of French Mrs Thatcher, he has called for the “moralisation of capitalism”, something closer to the late President Charles de Gaulle’s statist and social approach to business.

But give them some credit. French politicians are clever enough to realize that imposing bad policy on French companies would cause firms to migrate to less-oppressive jurisdictions. That is why they want anti-market rules to be imposed across the continent (much as they support tax harmonization so that all nations have bad tax law and France is not disproportionately impacted).

In an ideal world, French politicians would avoid new taxes and regulation and instead would investigate whether existing government policies - such as anti-takeover restrictions - were insulating corporate management from investor oversight. But that would mean reducing the power and influence of government, so that option is not part of the discussion.

Is Climate Change the World’s Most Important Problem?

A 2005 review article in Nature on the health impacts of climate change provided an estimate of 166,000 deaths as the annual global death toll “attributable” to climate change. This estimate, based on global vital statistics for the year 2000, was derived from a study sponsored by the World Health Organization (WHO) that even the study’s authors acknowledge may not “accord with the canons of empirical science” (see here). Let’s, nevertheless, accept this flawed estimate as gospel, for the sake of argument.

Where would this rank climate change in the list of global threats to mortality?

In the year 2000, there were a total of 55.8 million deaths worldwide. Thus, climate change may be responsible for less than 0.3% of all deaths globally (based on data for the year 2000). In fact, it would place climate change no higher than 13th among mortality risk factors related to food, nutrition and environment, as shown in the following table taken from pages 355-356 of the book, The Improving State of the World.

[Notably, all extreme weather events (whether due to climate change or the normally abnormal climatic variability) contribute all of 0.03% of global deaths on average. See Table 2, here.]

Specifically, climate change is easily outranked by threats such as hunger, malnutrition and other nutrition-related problems, lack of access to safe water and sanitation, indoor air pollution, malaria, urban air pollution.

With respect biodiversity and ecosystems, today the greatest threat is what it always has been – the conversion of land and water habitat to human uses, i.e., agriculture, forestry, and human habitation and infrastructure. See,e.g., here.

Climate change, contrary to claims, is clearly not the most important environmental, let alone public health, problem facing the world today.

But is it possible that in the foreseeable future, the impact of climate change on public health could outweigh that of other factors?

I’ll get to this question in subsequent blogs over the next couple of weeks, but for those who can’t wait, the answer can be found here.

Only in France

At first, I thought this story must be a joke, but it apparently is true that France wants to regulate and subsidize country dancing. No further comment is necessary:

…country and western has become so big in France that the country’s bureaucrats have decided to bring the craze under state control. The French administration has moved to create an official country dancing diploma as part of a drive to regulate the fad. Authorised instructors who have been on publicly funded training courses will be put in charge of line dancing lessons and balls. …In a peculiarly Gallic approach to the phenomenon, French civil servants say line dancing should be submitted to the same rules as sports such as football and rugby. This means imposing training courses for line dancing teachers and a state-approved diploma for anyone who wants to give lessons or run clubs. Amateur instructors will have to take 200 hours of training under the new rules. Professionals will get 600 hours, including such subjects as line dancing techniques, “the mechanics of the human body” and the English (or at least Texan) language. They will also learn how to teach line dancing to the elderly. The cost of the courses, about €2,000 (£1,570) for the professionals and €500 for the amateurs, will be largely met by taxpayers. Mr Chauveau said the regulations highlighted the French state’s obsessive desire to organise all public activity.

Kerr Defends the Third-Party Doctrine

Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.

He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.

He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.

I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.

It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!

The basic gist of the article is that the third-party doctrine is better than most people think, for two reasons. First, it’s technologically neutral. It prevents criminals from making opportunistic use of technology to circumvent the basic balance between security and privacy struck by the Fourth Amendment. Second, it’s easier to administer than alternatives. The arguments against the third-party doctrine are weaker than most people believe, Kerr says.

Rather than wedging the third-party doctrine into the “reasonable expectation of privacy” framework arising out of Katz v. United States, Kerr argues that the third-party doctrine should be thought of as a form of consent. People sharing information with others are consenting to have it searched.

To make the third-party doctrine more palatable, he argues that substitutes for it help control against abusive practices. These include common law privileges, entrapment law, the Massiah doctrine, First Amendment doctrine, statutory privacy protections, and the rights of third parties themselves.

My differences with Kerr are plentiful. Starting at the 30,000 foot level, my sense is that Kerr is treating the Fourth Amendment as a rule about criminal procedure. Oh sure, it’s classed that way in the legal academy, it has most of its application in criminal cases, and I first studied Fourth Amendment law in my constitutional criminal procedure class. But add this to the list of things I didn’t learn in law school: The touchstone of the Fourth Amendment is the security of the people—all of them—against unreasonable searches and seizures of their persons, houses, papers and effects. “The people” refers to all of us, the law-abiding citizens.

(Kerr’s argument that the third-party doctrine is preferable because it’s easy to administer holds no weight if the rule derogates from the security of the people, and I’m confident that courts and police departments could manage other rules. That’s all I’ll have to say on that point so I can focus on Kerr’s point about technological neutrality.)

The interplay of the Fourth Amendment and technology is interesting, but I don’t think technological neutrality is a terribly relevant or useful metric for Fourth Amendment doctrine. Since the Fourth Amendment was adopted, technology has certainly shifted the scope of human enterprise. I imagine that in the late 1700’s most everything of deep import to people’s lives—personal and professional—happened in or near the home, so it was natural that the home was a place of high Fourth Amendment protection, and “home” was a useful proxy for “what should be protected.”

Since then, technological changes of all kinds have given us the freedom to take our lives outward. We move around much more within our communities and from one to another; we stay in different places and move our residences much more often; we communicate and transact using new technologies; and our things—both tangible and digital—come to rest many more places than they used to.

Focusing on technological neutrality would move our attention off the thing that matters—the security of the people—to whatever privacy people got in the late 1700’s from the buildings they constructed around themselves and lived in. Housing was the technology of the time. It was both the locus of activity and the source of security in persons, papers, and effects. (Thanks to the Fourth Amendment, it provided equal security against others as against the government.) It would be odd to let the technology of that time set the standard. Was there something special about the technology of that particular time that affixed the scope of people’s rights? Why weren’t they set in the era of the caveman? Or … 1957?

In 1967, of course, the Katz Court recognized that the expanded scope of human action needed coordinate expansion of Fourth Amendment protection, and it said in famous language, “the Fourth Amendment protects people, not places.” Katz preserved the security of the people as the technology moved their lives from “inside houses” to “on the phone” and elsewhere.

(It’s interesting to note how many times Kerr refers to the Fourth Amendment as protecting places: “Fourth Amendment protection for information matches the Fourth Amendment protection for the environment in which it is stored.” He could almost be arguing to undo Katz.)

The welcome vision displayed in Katz counsels that the Fourth Amendment should naturally protect people as they come to use other instrumentalities—automated machinery owned by third parties, in particular—to expand the scope of their lives yet again.

Kerr spends a good deal of time explaining how third parties like phone companies, ISPs, online banks, and such allow people to hide illegal behavior that would otherwise take place in public. But this is true of every technology. Fourth Amendment protection for houses allowed criminals to use houses in concealment of crime rather than planning crime in open fields as they otherwise would have had to do. The thing is, letting the vast majority of honest people be confident in the security of their houses has had more benefits than the costs of letting criminals make use of that protection for crime. This will be true of nearly every technology.

Technological neutrality isn’t really relevant. What’s relevant is preserving the same security for people and their stuff that they should have in a free society. It’s a consistent level of this security that matters—not technological neutrality.

A theme unfortunately not running through Kerr’s paper is how much it’s oriented toward victimless crimes, which require much more surveillance than real crime. At one point, he tellingly refers to crime as “the transaction,” not “the theft” or “the murder” or anything like that—“the transaction.” He’s talking about money laundering, prostitution, gambling, bootlegging, and the like.

Real crimes have complainants who tell the police. There isn’t a problem with discovering these crimes or knowing where to start looking for the criminals. The third-party doctrine is intimately bound up with the War on Drugs. Kerr should surface this and grant forthrightly that the third-party doctrine exists for and because of victimless crime laws.

It’s a fascinating idea—and weird—that sharing information with a third party is a form of consent to it being searched by the government. This area deserves more thinking, but my initial impression is that the word “consent” loses the moorings that make it meaningful if consent to a search is imputed to any sharing of information.

The consent argument, and much of Kerr’s other points are bound up with the “reasonable expectation of privacy” doctrine that evolved from Katz. Rather than go through everything now—as I write, it happens to be Friday a little after 5:00 p.m.—I’ll just mention that I have an article coming out soon in the American University Law Review showing that the “reasonable expectation of privacy” test from Justice Harlan’s concurrence is not even supported by the majority’s holding in that case.

There is much more to know about privacy. Kerr treats lost privacy and official abuse as essentially the same, though they’re quite different. (Two chapters in my book on identification policy discuss the free-standing importance of privacy and anonymity.) So many people have thrown themselves onto the “reasonable expectation of privacy” pyre based on that well-intended but mistaken concurrence. It won’t have to happen any more once my article comes out.

I’m going to send Professor Kerr an advance copy. Perhaps the final version of his article will sparkle from the exposure to it!