Confidentiality

Washington University School of Law professor Neil Richards and George Washington University Law School professor Daniel Solove have an important new law review article out.  Privacy’s Other Path: Recovering the Law of Confidentiality is a useful reminder of a dimension of privacy apart from the privacy torts so famously inspired by Warren and Brandeis in their 1890 Harvard Law Review article.

Confidentiality is the idea that you can share information subject to restrictions on further disclosure and use.  There are often implicit understandings about how shared or mutually created information should be treated.  It’s an important point that’s been conveniently forgotten in government arguments for “data retention,” for example.  Confidentiality in the financial services sphere has been eviscerated by the Bank Secrecy Act and the Supreme Court cases that followed it, as well as Smith v. Maryland in the telecommunications context.

Richards and Solove’s work has its awkward turns - they characterize continental Europe’s focus on dignity and America’s focus on liberty as highly individualistic, while suggesting that confidentiality is ”based on the protection of relationships.”  If these characterizations are relevant at all, confidentiality can be seen just as much as a protection of individuals, the difference being that confidentiality is rooted more deeply in contract.  Small matter, though. 

Overall a good work, and an important reminder.

(HT: Schneier)

Is This a Log Cabin?

Photo from Washington PostBelmont College guard Andrew House complained that the NCAA assigned his team to this hotel, the historic Brookstown Inn in Winston-Salem, N.C. He objected to the old, 19-inch television sets in the room and said that the hotel felt more like a log cabin.

Isn’t it great to live in a world so rich that a 20-year-old college student thinks a beautiful, historic four-story hotel is like a log cabin? Next year, no doubt, players will complain about being assigned to hotels with old Ethernet connections that you actually have to plug your laptop computer into, like pioneer times.

Cock-fighting and Freedom

It’s not often that you can point to a stirring article about American liberty by a Weekly Standard editor. But Chris Caldwell’s piece in the Financial Times on cock-fighting is a fine read. Yes, cock-fighting. Presidential candidate Bill Richardson doesn’t want the legality of cock-fighting in New Mexico to burden his candidacy as he travels the length and breadth of this great land. So rather than defend New Mexico as the last bastion of American freedom, he chose to sign a law banning it to help his campaign.

Caldwell notes sadly that even the defenders of the practice hardly mentioned liberty. Instead, they mentioned the economic benefits of tourism and the alleged anti-Hispanic bias of the drive to ban a sport popular with Hispanics. The better argument, he thought, would have been liberty: some people want to attend cock-fights, and Americans have been doing so for centuries, so why should “reformers” be able to take a small pleasure away from others? Caldwell deplores the decline of the general presumption of liberty:

It used to be, under the US system, that one could do anything that was not expressly forbidden. Now one is forbidden to do anything one cannot make an explicit case for. The burden of proof has shifted.

It’s especially sad that Bill Richardson, who is not so bad on fiscal issues and is a supporter of medical marijuana, felt that he had to take people’s freedom away for his own political gain.

Ten Billion Served (and 300 Million Fleeced)

The American Public Transportation Association (APTA) just announced that the U.S. transit industry carried more than 10 billion transit trips in 2006, the first time the industry has exceeded 10 billion trips since 1957. Naturally, APTA – the transit industry’s leading lobby group – sees this as “10 billion reasons to increase local and federal investment in public transportation.”

The 10-billion milestone looks a lot less impressive when compared with the growing population of urban residents. It works out to just 42.7 trips per urban resident in 2006. (A trip, incidentally, is a transit boarding: if you get on a subway, then transfer to a bus, that is counted as two trips.)

While 42.7 trips per urbanite is more than were carried in 2005, it is not more than 2001, and it is less than in any year between 1907 (the first year for which transit data are available) and 1993.

In the meantime, transit subsidies already average 64 cents per passenger mile, compared with less than 0.4 cents for subsidies to auto driving. Over the past decade, APTA’s transit factbook says that the U.S. has “invested” more than $100 billion in public transit capital improvements, mostly for expensive rail transit projects. Many of the cities that have built rail transit lines have actually seen transit ridership drop because the high cost of rail has forced them to cut bus services.

As I explain in more detail in my Antiplanner blog, the real problem with the transit industry is too much money. Because transit agencies get the vast majority of their funds from taxpayers rather than transit riders, their incentives are to build expensive, glitzy urban monuments rather than provide economical transit services to those who need them. The solution is to stop subsidizing transit agencies an instead give vouchers to transit users, who can use them for buses, taxis, or any other public conveyance.

In Search of the Libertarian Democrat

Virginia Postrel writes today of the importance of empiricism to advancing liberty. She also mentions the possibility of persuading Democrats to become more sympathetic to the struggle for limited government.

I decided to assess the likelihood of a liberal-libertarian coalition empirically by looking at Democratic replies to questions about government spending. How open are Democrats to limiting government? These responses came from the 2004 pre-election survey conducted by American National Election Studies.

ANES posed the following choice: “Some people think the government should provide fewer services even in areas such as health and education in order to reduce spending. Suppose these people are at one end of a scale, at point 1. Other people feel it is important for the government to provide many more services even if it means an increase in spending. Suppose these people are at the other end, at point 7.” People could also choose 2 through 6, 4 being the median choice.

About 9 percent of Democrats responded on the low or limited government end of the scale. 70 percent of Democrats responded 5 or more; almost one in four answered 7 to the question, the response farthest from the limited government answer. Not much evidence of a desire for limited government.

ANES also asked: “Some people feel the government in Washington should see to it that every person has a job and a good standard of living. Suppose these people are at one end of a scale, at point 1. Others think the government should just let each person get ahead on their own. Suppose these people are at the other end, at point 7. And, of course, some other people have opinions somewhere in between, at points 2, 3, 4, 5, or 6.” In other words, the lower your score, the more you favor a nanny state.

Slightly less than half the Democrats gave a 1 to 3 response to the question. One in five Democrats gave the most extreme response favoring a nanny state. Three out of four Democrats gave a median response or higher.

ANES also asked about whether spending should be increased in various ways. Here are the percentages of Democratic respondents who favored increased spending on:

Aid to the poor 73.9%

Social Security 72.1%

Public Schools 87.3%

Science and Technology 57.3%

Dealing with Crime 68.4%

Child care 72.4%

Border security, illegal immigration  57.3%

In a few cases, a majority of Democrats did not favor increased spending. Here are the percentages of Democrats who favored increased spending on:

Highways 35.9%

Welfare programs 28.7%

War on terrorism 38.3%

Foreign aid 14.1%

However, on each of these issues, the percentage of Democrats who favored either increasing spending or keeping it the same was

Highways 90%

Welfare programs 75%

War on terrorism 71.7%

Foreign Aid 60.1%

No Democratic majority could be found that favored decreasing spending on any issue broached by the ANES survey.

Postrel notes, “a liberal-libertarian coalition may sound crazy when you look at the Democratic Congress, the 2008 presidential field, or the Democrats’ reflexive demonization of pharmaceutical companies.” But this data makes it clear that the Congress and the presidential candidates reflect the attitudes of Democrats more generally.

Crazy is not the correct word for the liberal-libertarian gambit. It is not like believing the Cato Institute building is made of cheese. But a political coalition requires some agreement in basic outlook about what government should do (or not do).

To believe in the liberal-libertarian proposal, you have to believe that huge, unprecedented numbers of Democrats are going to change their minds about increasing government spending or that libertarians are going to stop caring about increases in government spending.

I am sure the former will not happen.