“Reforming Fourth Amendment Privacy Doctrine”

Frankly, I don’t expect the scholars, lawyers, and judges who have been steeping in traditional Fourth Amendment doctrine their entire careers to get the thesis of my recent American University Law Review article. But you can! And, eventually, if I do enough work, they will.

Here are some highlights from the introduction to “Reforming Fourth Amendment Privacy Doctrine”:

Since 1967, the Supreme Court and lower courts have relied too heavily on an unreliable test that arose from the leading Fourth Amendment case, Katz v. United States. Distracted by Justice Harlan’s concurrence in the case and befuddled by the concept of “privacy,” courts have ignored the simple rule of the actual holding in Katz and conditioned Fourth Amendment rights on surmises about privacy “expectations.”

Privacy is a real thing that need not be a matter of conjecture. The Katz Court held that personal information was protected by the Fourth Amendment because, as a factual matter, the defendant had kept it private. Installing a wiretap to overcome Katz’s use of law and physics to conceal information was unreasonable without a warrant. The Court did not base its holding on open-ended “expectations” or “reasonableness,” as Justice Harlan’s concurrence suggested, but on the affirmative steps Katz took to conceal that information.

If an individual has secured the privacy of particular information, the Fourth Amendment focuses on the reasonableness of the government’s actions in undoing that privacy, not on the reasonableness of the individual’s expectations.

The FBI Turns 100

This weekend the FBI will celebrate its 100th anniversary. As you might expect, the Bureau is trumpeting its record, i.e., the FBI has protected America from gangsters, Nazis, Communists,  mobsters, terrorists, and so forth.  The image has always been super-competent, super-honest agents who hunt down the evil-doers.

But what about the actual record of the FBI? Sen. Charles Grassley (R-Iowa) has long taken a skeptical view of the FBI and I think his remarks from a 1997 oversight hearing are on the mark:

[M]y father’s occupation was farming in Iowa. And in the ’40s and ’50s, when I was growing up, he taught me to respect the FBI. I came to Washington with a great deal of respect for the FBI. I know that my criticism of senior management, in the last year probably, doesn’t show that I was brought up that way. But it’s not easy for me to think of my father’s respect for the FBI, that they could do no wrong, and find some of the things wrong because, in decades of public service, I have never known an agency that right now is in need of more oversight, including congressional oversight, than the FBI. And that’s after a year of digging into issues that the Bureau has been involved with.

We all respect the good things that the FBI does. We know that there are thousands of agents out there in the field that are putting their lives on the line. And most Americans have the image of the FBI as very good, beyond reproach, the untouchables. The FBI has cultivated that image…. But serious problems with the Crime Lab punctured that image, also Ruby Ridge and Waco have. Beyond the veneer is an ugly culture of arrogance that uses disinformation, intimidation, empire building, to get what it wants.

And I’ve got some documentation, if you’re interested in my feeling about intimidation and disinformation. It resists oversight by an independent body. It resists cooperation and information-sharing with state and local law enforcement. Now I want to show some examples of these. I find that the FBI sometimes uses intimidation tactics when it wants to get its own way. When I have made inquiries, sometimes they simply refuse to respond. That’s not what legitimate oversight is about. It suggests that there’s something to hide. And that’s why problems like the FBI Crime Lab are allowed to exist and fester so long without detection — in that case, maybe about eight years.

While Congress has given the FBI more money than can be spent wisely — for instance, we tripled the amount of money, in just five years, for combatting terrorism. It reminds me of how Congress mindlessly pumped up the defense budget during the ’80s, and all that we did was increase the price of what we bought — hammers, pliers and toilet seats. In this case, I think that we need to carefully examine every nook and cranny of the FBI’s budget to make sure we’re getting what was advertised. And I intend to be a part of that effort in the coming months, because what I have found is that senior management within the FBI puts too much focus on its image and budget and not enough on product, and that product should be law enforcement and public safety.

Like Senator Grassley says, we should acknowledge FBI successes. But a proper appraisal of the Bureau’s actual record must take into account both the good and the bad. Two days ago, Cato hosted an event about the FBI’s record. The panel included the FBI’s official historian, Dr. John Fox, and an outside academic expert, Dr. Athan Theoharis. To view the event, go here.

Here are 10 people/events that the FBI would rather not discuss.

  1. Martin Luther King
  2. Richard Jewell
  3. Brandon Mayfield
  4. Joseph Salvoti
  5. Dr. Frederic Whitehurst
  6. Randy Weaver 
  7. Sibel Edmonds
  8. Anthony Hodgson
  9. Steven Hatfill
  10. The Branch Davidians.

For related Cato work, go here, here, and here.

Pushing Help on Flood Victims

In a recent Cato@Liberty post that I’m particularly proud of (because it’s about TV! - “TV is Great”), I pointed out an example where a midwestern farming couple victimized by the recent flooding weren’t expecting help from the government.

Said Barb Boyer:

We’ve always lived our life that we’re responsible for our own choices, our own destiny. And we chose not to carry the flood insurance. That was our responsibility. …[O]f course, we are going to need help, but do I expect it? No. We’ll start over. That’s all I know right now.

Well, it looks like they might get help from the government anyway. Introduced in the House on Wednesday, H.R. 6587 would provide various forms of tax relief for the victims of the recent harsh weather in the Midwest.

When tax time comes, the Boyers and their neighbors will be presented with lots of ways to reduce their tax liability for having been in the area where the storms and flooding hit — nevermind that they didn’t insure for it. They’d be fools to refuse the savings.

Libertarians often talk about the possibility of private charity picking up the slack for reduced government welfare. Statists scoff at such notions, pointing to the weakness of local community and cultural institutions today. The charge rings true, but the reason, if this is the case, is not that the American character is weak and that it casually ceded responsibility to government. It’s because government largesse is an insidious, attacking organism that goes right for the fibers and joints of civil society to draw down their strength and make them arthritic.

My sympathies go to victims of the flooding. I would go to my pocket to help them. But our representatives are in our pockets already, taking not just tax money, but the sense of sympathy and shared purpose that would bind us to our fellow Americans.

State Budget Problems Can Be Solved, Without Cuts

Chris Edwards rightly takes the Wall Street Journal to task for its breathless report that “the stumbling U.S. economy is forcing states to slash spending and cut jobs in order to close a projected $40 billion shortfall in the current fiscal year.”

Like he says, smaller spending increases are “certainly no crisis after the orgy of budget expansion in recent years.”And Medicaid spending is dangerously out of control.

I’d only add that states are spending much more on k-12 education than Medicaid. At 25 percent of all state-derived expenditures, it’s almost double Medicaid’s 13 percent share. State spending on k-12 education dwarfs any other category.

And while cuts in government spending are a good thing, saving money with a huge expansion of freedom is even better.

That’s why the best way solve state budget problems is something no one is yet considering; broad-based school choice.

Here’s what the five states in our recent fiscal analysis of the Public Education Tax Credit stand to save if they do what’s right and greatly expand educational freedom:

Texas saves $15.9 billion in the first 10 years and $5.4 billion every year after the program has been in operation for 15 years.

New York saves $15.1 billion in the first 10 years and $4.8 billion every year after the program has been in operation for 15 years.

Wisconsin saves $9.3 billion in the first 10 years and $3.2 billion every year after the program has been in operation for 15 years.

Illinois saves $5.1 billion in the first 10 years and $1.6 billion every year after the program has been in operation for 15 years.

South Carolina saves $1.1 billion in the first 10 years and $350 million every year after the program has been in operation for 15 years.

Stewart Baker Crosses a Line - What’s the Strategy?

I’ve been nothing if not dogged about responding to DHS’ advocacy for REAL ID and E-Verify. I’ve had fun responding to post after DHS post on the “Leadership Journal” blog promoting E-Verify. But I let one recent post from DHS Assistant Secretary for Policy Stewart Baker go by. Enough people have pointed me to it and asked me what I thought that I’m finally drawn to comment.

Baker’s post, “Exactly What Do They Want?,” addressed none of the substance of the E-Verify program, but simply attacked a group called the Society for Human Resource Management (SHRM).

 Here’s a taste:

SHRM lobbies for the HR execs who do corporate hiring. It also opposes E-Verify. I suppose corporate hiring is easier if you can hire illegal workers, so perhaps I shouldn’t be surprised that SHRM wants to kill a program that makes it harder to hire illegal workers.

But SHRM has taken Washington arts to a new level. SHRM says it doesn’t want to kill E-Verify. SHRM says it wants to replace E-Verify with a new, better program to prevent illegal hiring. A closer look shows that the SHRM alternative is doomed to fail – and will take years to do so. So for a decade, while the SHRM alternative is failing, no one will have a good tool to actually prevent illegal hires. Which may be precisely what SHRM wants.

Politics can be ugly. And attacking the motives of your opponents is ugly politics. But what matters in the first instance is that it’s politics at all. Stewart Baker is an executive branch official who was appointed to his office, not elected. His role is to administer the laws, not to participate in the political processes that decide what the laws are. He crossed a crucial line by becoming a critic - and a harsh critic at that - of a private association because of its public policy stance.

It’s interesting to speculate about what caused Baker’s fit of pique. A theme in his post is the potential transfer of responsibilities for verification of workers from the Department of Homeland Security to other agencies like SSA and HHS. Job #1 for government ministers is to build their fiefdoms, and the SHRM’s preferred employment verification vehicle, the New Employee Verification Act, would be a DHS bureaucrat’s biggest outrage.

But everyone who knows him knows that Stewart Baker is savvy and cool. It’s not like him to lose his temper - especially not in such a public way. So I expect that this is part of some clever strategy, but I just don’t know what it is. Baker’s vitriol has drawn justified indignation from the folks at SHRM. The comments on Baker’s post have lots of interesting tidbits, including allegations that Baker consistently declined to meet with SHRM. He got written up in Politico for starting this public imbroglio. And the human resources blogosphere is popping with discussion of Baker’s explosion.

So, does Stewart Baker surprise us all and pull a rabbit out of a hat? Or has he really lost his cool? It could be frustrating, as he winds down his stint at DHS, to look down the road behind him at his key issues: the E-Verify program limping along, and the REAL ID Act in full collapse.

If the Swedish System Is Socialist, What’s Ours?

As a recent AP story helpfully points out, big government, dirigist Sweden has had a private school choice program since the early 1990s, and parents are loving it. Private school enrollment is up from one percent to ten percent of total enrollment, and still climbing.

Interestingly, Sweden’s education system was described today in a separate news story as “socialist.” Now I’m the first to acknowledge that Sweden’s system is far from a completely free market (see the AP story above), but it is certainly less socialist than our own public school systems in the United States, which automatically assign most kids to government-run institutions.

So if reporters think the Swedish system is socialist, why don’t they describe ours in the same way?

One Set of Rules for the Peasantry, Another Set for the Political Elite

Until the seedy practice was exposed, the host committee for the Democratic National Convention in Denver was dodging state and federal taxes by filling its cars using the city government’s gas pumps.

Defenders of the scam tried to say the GOP elites were doing the same thing in Minneapolis (plausible, but not true in this instance). They also have the absurd excuse that city pumps were being used for security purposes (I suppose we should be happy that these nonentities are not demanding 24-hour police protection):

The committee hosting the Democratic National Convention has used the city’s gas pumps to fill up and apparently avoided paying state and federal fuel taxes. The practice, which began four months ago, may have ended hours after its disclosure. An aide to Mayor John Hickenlooper released a statement Tuesday evening saying that Denver 2008 Host Committee members would pay market prices for fuel and would also be liable for all applicable taxes. However, Public Works spokeswoman Christine Downs told City Council members just hours before that host committee members were fueling up at the city pumps.

…”There’s something there that just doesn’t seem right to me because, in a sense, you’re saying then that the officials who pass the laws are not willing to live by them,” said Councilwoman Jeanne Faatz.

Hickenlooper said the practice isn’t unique to Denver. “I do know for a fact that they’re doing the same exact thing in Minneapolis,” Hickenlooper said, referring to the city that along with St. Paul is hosting the Republican National Convention. But Teresa McFarland, a spokeswoman for the Minneapolis-St. Paul host committee, said its members are getting their gas at public pumps.

…The host committee, which is responsible for raising money to put on the convention, is using the city’s pumps “for safety and security reasons,” Lopez said.