February 28, 2018 4:58PM

Time to Cool It: The U.N.’s Moribund High‐​End Global Warming Emissions Scenario

The amount of future warming is predicated on the amount of emitted greenhouse gases and the sensitivity of earth’s surface temperature to changes in their concentrations. Here we take a look at the emissions component.

The U.N. currently entertains four emissions scenarios, all expressed as the change in downwelling radiation (in watts/meter-sq, nominal year 2100) towards the surface that results from an increase in the atmospheric concentration of certain greenhouse gases. They are called “representative concentration pathways,” or RCPs.

As can be seen in Figure 1, there are four, given as 2.6, 4.5, 6(.0) and 8.5. The ranges of associated warming for over 1000 total scenarios are given on the right axis.

Figure 1.  Approximately 1000 scenario runs for four RCPs. From Fuss et al., 2014.

Figure 1. Approximately 1000 scenario runs for four RCPs. From Fuss et al., 2014.

It’s not surprising that those making the case for climate action most frequently reference the highest (RCP8.5), embedding it in most climate scenarios, assessments, and international agreements (the Paris Agreement being a prime example). Here is a summary of Google Scholar citations for the different RCPs, published on February 9 by Eric Roston in Bloomberg:

Figure 2. Although increasingly untenable, RCP8.5 draws the most attention.

Figure 2. Although increasingly untenable, RCP8.5 draws the most attention.  

RCP8.5 is obsolete. It was obsolete when it was first published in the journal Climate Change by Riahi et al. in 2011. By then the shale gas revolution was underway, as can be seen from the plot below of shale gas production. By 2011, abundant shale gas had begun a wholesale displacement of coal for electrical generation, increasing natural gas’s portion of our energy portfolio and decreasing that of coal.

Figure 3. U.S. shale gas production, 2007-2016, according to the U.S. Energy Information Administration.

Figure 3. U.S. shale gas production, 2007–2016, according to the U.S. Energy Information Administration.

The Riahi et al. RCP 8.5 continues to be the favorite for analysts. It completely dominates the draft of the upcoming fourth “National Assessment” of climate change, created by our U.S. Global Change Research Program. Here is the fanciful “wedge chart” for various energy sources in RCP8.5:

Figure 4. Energy contributions (in Joules X 1018, or EJoules) in RCP 8.5.

Figure 4. Energy contributions (in Joules X 1018, or EJoules) in RCP 8.5.

There are at least two notable errors in RCP8.5, which both serve to exaggerate its radiative forcing. The first is an incorrectly modest growth in natural gas use, and the second is the massive growth in coal combustion. According to the International Energy Agency (2017):

The global natural gas market is undergoing a major transformation driven by new supplies coming from the United States to meet growing demand in developing countries and industry surpasses the power sector as the largest source of gas demand growth…[emphasis added]

The evolution of the role of natural gas in the global energy mix has far-reaching consequences on energy trade, air quality and carbon emissions…

Global gas demand is expected to grow by 1.6% a year…China will account for 40% of this growth.

British Petroleum (BP) recently estimated the global fuel mix through 2040 in its 2018 Energy Outlook. Under their “Evolving Transition” assumption, natural gas usage passes coal worldwide around 2030, and oil use levels off at the same time. A comparison to RCP 8.5 (above) shows how wrong it is, even in the near future.

Figure 5. British Petroleum’s fuel outlook from its most recent (2018) Energy Outlook. Note the color scheme is somewhat different than in Figure 4, with natural gas now red, instead of blue.

Figure 5. British Petroleum’s fuel outlook from its most recent (2018) Energy Outlook. Note the color scheme is somewhat different than in Figure 4, with natural gas now red, instead of blue.

The substitution of shale gas for coal continues to drive down the “carbon (dioxide) intensity” of developing and developed economies. This is the amount of carbon (dioxide) emitted per unit of GDP, usually normalized to 2010 dollars adjusted for their purchasing power in a given economy. In the United States, in the quarter-century beginning in 1990, the drop was a remarkable: from 0.9kg of carbon dioxide/dollar to 0.35, or over 60%.

The imminent dethroning of King Coal is obvious in the BP data, which leads to another problem: Justin Ritchie and Hadi Dowlatabadi from University of British Columbia recently found there simply isn’t enough coal to support RCP8.5. Nor were they conservatively looking at so-called “recoverable” reserves; instead, they toted up all geologically identified coal around the planet.

They then adjusted RCP8.5 for the twin errors of increasing carbon (dioxide) intensity by a huge growth in coal use over natural gas (recall that IEA indicates large scale industrial as well as electrical switchover), and the fact that there isn’t enough coal, and modified RCP8.5 to look like this: 

Media Name: totalprimaryenergysupply.png

By comparing the contribution of oil, coal, and natural gas (the greenhouse gas sources) between RCP8.5 and what is likely to happen, we can estimate the total downwelling radiation change: it drops from 8.5 watts to roughly 5.1. (Recognizing there is a lot of fine print—this is certainly a ball-park number.)

It is the nature of climate models to scale global warming with percentage changes in emissions; i.e. a quadrupling of emissions has almost exactly the effect of doubling prospective warming over that forecast from an initial doubling of the concentration. Reducing emissions by 40%, which is the difference between Rihai’s RCP8.5 and Ritchie’s modification, similarly reduces total warming.

There’s the further problem of model overprediction of warming that we recently documented in our public comments on the upcoming Fourth National Assessment of Climate Change. Generally speaking, we find the data-based sensitivity of temperature to be about 56% of the average of the 105 climate models in the UN’s most (2013) science summary.

Multiplying everything through, we take the mean 20th and 21st century RCP8.5 warming of 4.3⁰C, adjust by 60% to get the difference with the modified RCP, and then adjust for the 56% sensitivity and we find a 21st century warming a teense under 1.5⁰C—very, very close to the sensitivity just calculated by University of Alabama-Huntsville’s Roy Spencer.


British Petroleum 2018 Energy Outlook at https://www.bp.com/content/dam/bp/en/corporate/pdf/energy-economics/energy-outlook/bp-energy-outlook-2018.pdf

Fuss, S., et al, 2014.  Betting on Negative Emissions.  Nature Climate Change 4, 850-853

IEA, 2017. IEA Sees Global Gas Demand Rising to 2022 as US Drives Market Transformation. https://www.iea.org/newsroom/news/2017/july/iea-sees-global-gas-demand-rising-to-2022-as-us-drives-markettransformation.html

Riahi, K., Rao, S., Krey, V. et al. Climatic Change (2011) 109: 33. https://doi.org/10.1007/s10584-011-0149-y

Ritchie J and Dowlatabadi H 2017.  The 1000 GtC coal question: are cases of vastly expanded future coal combustion still plausible? Energy Econ. 65 16–31.

Roston, E., 2017, at: https://www.bloomberg.com/news/articles/2017-05-24/misleading-coal-estimates-may-have-skewed-climate-projections

Ryan Maue of Cato's Center for the Study of Science provided important background material for this post.

February 28, 2018 4:49PM

Politicians Cannot Stop Punishing Patients for the Unintended Consequences of Drug Prohibition

It seems no amount of evidence can make political leaders disabuse themselves of the misguided notion that the nation’s opioid overdose crisis is caused by doctors getting patients hooked on prescription opioids. A group of eight senators unveiled the CARA(Comprehensive Addiction and Recovery Act) 2.0 Act on February 27, targeting the opioid crisis. It would impose a 3-day limit on all opioid prescribing for patients in acute and outpatient postoperative pain.

But the movement to restrict prescriptions is not evidence-based, as prominent experts have pointed out. The politicians base their proposal on the 2016 opioid guidelines put out by the Centers for Disease Control and Prevention. The guidelines stated:

When opioids are used for acute pain, clinicians should prescribe the lowest effective dose of immediate-release opioids and should prescribe no greater quantity than needed for the expected duration of pain severe enough to require opioids. Three days or less will often be sufficient; more than seven days will rarely be needed.

The guidelines pointed out that the above recommendations were based on “Type 4” evidence:

Type 4 evidence indicates that one has very little confidence in the effect estimate, and the true effect is likely to be substantially different from the estimate of the effect.

It further described Type 4 evidence as being based upon “clinical experience and observations, observational studies with important limitations, or randomized clinical trials with several major limitations.”

In their introductory comments, the guidelines stated:

Clinical decision making should be based on a relationship between the clinician and patient, and an understanding of the patient’s clinical situation, functioning, and life context. The recommendations in the guideline are voluntary, rather than prescriptive standards. They are based on emerging evidence, including observational studies or randomized clinical trials with notable limitations. Clinicians should consider the circumstances and unique needs of each patient when providing care.

When health care providers read and interpret these guidelines, they understand them to be informational, nonbinding, and inconclusive. But that’s not how politicians “do science.”

It doesn’t seem to matter that studies have shown the addiction potential of opioids prescribed for acute pain to be extremely low, including a January 2018 study published in BMJ of more than 568,000 postoperative patients receiving opioids between 2008 and 2016 who were found to have a “misuse” rate (using all “misuse” diagnostic codes) of 0.6%. It doesn’t matter that Cochrane systematic studies in 2010 and 2012 demonstrated a roughly 1% addiction rate in chronic non-cancer pain patients.

The National Survey on Drug Use and Health reports that less than 25% of nonmedical opioid users received a doctor’s prescription, and a November 2017 study found that heroin was the gateway drug in 33.3% of opioid addicts entering rehab in 2015 (as opposed to 8.7% in 2005).

There has been a 41% drop in high-dose opioid prescriptions since 2010, yet overdose rates continue a steady climb, with more than 60% due to heroin and fentanyl. In fact, the CDC notes the fentanyl overdose rate has been increasing at a clip of 88% per year since 2013; the heroin overdose rate has gone up 33% per from 2010–2014, and 19% per year since 2014. Meanwhile the prescription overdose rate has been increasing at a stable rate of 3% per year since 2009. With the advent of abuse-deterrent prescription opioids (ADFs) in 2010, opioids diverted to the black market have become increasingly useless to nonmedical users.

All the evidence points to the overdose crisis being primarily the result of nonmedical users accessing drugs in the black market. The restrictive, supply-side approach of present-day opioid policy has driven these users to more dangerous, but cheaper and readily available, fentanyl and heroin. And the majority of opioid overdoses involve multiple drugs. New York City recently reported that 75% of the overdoses in 2016 were due to heroin and fentanyl, and 97% of overdoses involved multiple drugs—46% of the time it involved cocaine. This is not an opioid crisis—it’s a fentanyl and heroin crisis. And the deaths are due to drug prohibition: the result of nonmedical users accessing drugs in a black market.

If CARA 2.0 passes as written, look for more patients to suffer in agony. As a surgeon who prescribes postoperative opioids to my patients for pain control, I will no longer be able to individualize my prescriptions to my patients. This will probably mean I will have to see many of my patients for their postoperative visit 3 days after surgery, rather than the 10–14 days that is usually the case, so that I can prescribe a refill of their pain prescription. And because I am being surveilled by my state’s Prescription Drug Monitoring Program, the pressure will be on me to limit those refills.

Meanwhile, not one intravenous heroin user will be moved to pull the needle out of their arm as a result of this policy.

To its credit, CARA 2.0 has provisions to liberalize the prescription of buprenorphine which, like methadone, is a form of medication-assisted treatment, a proven type of harm reduction. And it provides increased funding in order to make the overdose antidote naloxone more available. But it doesn’t go far enough: naloxone should be available over-the-counter.

The damage and death resulting from drug abuse will continue unabated as long as drug prohibition continues unabated. Meanwhile, policymakers should drop their focus on doctors treating patients in pain and place their efforts squarely on reducing harm. Medication-assisted treatment, syringe services programs, and naloxone distribution are good places to start. The current restrictive approach will only further drive up the death rate.

February 28, 2018 2:31PM

“An astonishing miscarriage of justice”

Yesterday, Public Affairs published a compelling new book by Cato alum Radley Balko and his co-author Tucker Carrington entitled The Cadaver King and the Country Dentist. The book chronicles the horrific and sordid tale of how the State of Mississippi railroaded innocent men for heinous crimes with the help of Dr. Steven Hayne, a medical examiner, and Dr. Michael West, a dentist.

Those who have followed Radley’s career over the years may be familiar with his investigations into Hayne and West, particularly their repeated use of deeply flawed forensics and preposterous testimony. We are proud to welcome Radley and Tucker to Cato to talk about the remarkable story that is garnering praise across literary and criminal justice circles. Already named by Amazon.com as a "best nonfiction book" selection, it should be a smashing success and we couldn't be happier to have both authors share their work with us.

The event will be held Thursday, March 15, at 4pm here at Cato. For those unable to attend in person, the event will be livestreamed on cato.org/events and facebook live. You can register here.

The headline is a quote from this BookPage review by Deborah Mason.

February 28, 2018 1:25PM

E‑Verify Could Have Increased Crime in Arizona

Illegal immigrants who can’t work are more likely to commit crimes in order to support themselves, according to a superb new paper by Matthew Freedman, Emily Owens, and Sarah Bohn that is forthcoming in the American Economic Journal: Economic Policy.  They examined administrative data from Bexar County, Texas and found an increase in felony charges filed against residents who were most likely to be illegal immigrants after the Immigration Reform and Control Act made it unlawful for illegal immigrants to work in the United States.   

Their finding is especially relevant for the current debate over E-Verify, an electronic eligibility for employment verification system that is supposed to exclude illegal immigrants from the workforce.  The goal of E-Verify is to turn off the wage magnet that attracts illegal immigrants to the United States and open up jobs for American workers.  Although E-Verify fails to lower unemployment and only has a very small effect on dimming the wage magnet, the paper by Freedman et al. points to another possible unintended consequence of mandating E-Verify: higher crime.

Arizona provides a wonderful opportunity to test whether an E-Verify mandate affected crime.  In March 2007, the Arizona House passed the Legal Arizona Workers Act (LAWA).  The state Senate passed it in May and governor Napolitano signed it in July.  Among other things, LAWA mandated E-Verify for all new employees beginning on January 1, 2008. 

We used Arizona Department of Corrections (ADC) data on the number of entries into the prison system by month by citizenship.  The ADC data does not allow us to separate prisons by nativity or legal immigration status so we used the proxy of non-citizens, many of whom are likely illegal immigrants and would be affected by mandatory E-Verify.  Although this is a grave imperfection in the data that makes us hesitant to continue, the effect we find is large enough to report in the hopes that future researchers will be able to actually identify illegal immigrants who are incarcerated.  We interpolated Arizona population data to the monthly level using a cubic spline to better capture any non-linearity in population trends. 

First, we consider the flow of non-citizens into Arizona prisons as a fraction of the Arizona population multiplied by 100.  The vertical bars correspond to March 2007 and January 2008 when E-Verify first passed the Arizona House and was effective, respectively.  To smooth trends in this series, we overlay a locally weighted polynomial regression line computed for three periods: before E-Verify passed the House, after E-Verify passed the House and before its implementation, and after the E-Verify mandate took effect.[1]  There is a significant discontinuity and uptick in the flow of non-citizens into Arizona prisons relative to the total population after E-Verify passed in March 2007 up until it became mandatory in January 2008 (Figure 1).

Figure 1

Monthly Flow of Non-Citizens into Arizona Prisons

Media Name: plot1.png


Source: Authors’ interpretation of Arizona Department of Corrections data.

Figure 2 shows a sharp increase in the share of non-citizen entries into Arizona prisons relative to all new entries after E-Verify laws were passed.  To determine whether these relations are simply due to chance, we also consider a simple regression model with controls for other state-level economic factors. 

Figure 2

Monthly Share of Non-Citizen Admissions into Arizona Prisons as a Percentage of All Admissions

Media Name: plot2.png


Source: Authors’ interpretation of Arizona Department of Corrections data.

In order to add a regression to our suggestive graphs, we created indicator variables denoting the level of E-Verify law activation with one variable for the period after the law was passed and before its activation and one after E-Verify was activated.  This allowed us to examine both the reaction to the LAWA’s passage and what happened when it took effect.  Results for this specification indicate a statistically significant change in the average flow of non-citizens to Arizona prisons by approximately 3.2 percent after passage and 1.9 percent after implementation (Table 1, Column 1).  Since the series are likely to be serially autocorrelated, we compute Newey-West (1987) standard errors corrected for six lags of autocorrelation for each specification.

To control for variation in prisoner flows based on economic factors, we collect employment and unemployment data from the Bureau of Labor Statistics, median income and poverty rates from the Census Bureau’s Small Area Income and Poverty Estimates program, and personal income from the Bureau of Economic Analysis.[2]  Since many of these variables are likely to be highly correlated, we employ a Lasso regression framework to identify and remove redundant regressors.[3]  Results for this model with Lasso-selected covariates are in Column 2 of Table 1 and show a similar pattern of significant increases in the share of non-citizen flows into Arizona prisons of nearly 2.8 percent after E-Verify passed and 5.1 percent after it went into effect.

Table 1

Effect of E-Verify on the Share of Non-Citizen Prisoner Admission in Arizona State Prisons                                                       


Media Name: table3_forresternowrasteh.png

These relatively simple graphs and regressions do not provide evidence that E-Verify boosted the inflow of non-citizen prisoners into Arizona prisons.  However, they do show a clear, significant, and positive association between an E-Verify mandate and the fraction of non-citizens sent to prions in Arizona.  Other social scientists should take the research by Freedman et al. seriously and view state-wide E-Verify mandates as an opportunity to study how increased immigration enforcement affects crime.  The supporters of E-Verify should also consider that one possible result of mandating that system is higher incarceration and crime rates.

Andrew Forrester contributed mightily to the econometric portions of this post.

[1] We choose a bandwidth of 0.8 based on visual appearance of fit to the data series.

[2] Data for personal income, poverty rates, and median income were only available at the quarterly and yearly level and were interpolated to the monthly level using a cubic spline.

[3] For details on this procedure, see Belloni et al. (2014).

February 28, 2018 12:43PM

Supreme Court Will Allow “Political” T‑Shirts in Polling Places

What should’ve been a slam-dunk win for those challenging Minnesota’s ban on “political” apparel at the polls was complicated by the plaintiffs' counsel's inability to draw clear lines between what the government can and can’t restrict. The voters' lawyer began his argument by arguing, quite correctly, that Minnesota's law was overbroad -- sweeping in shirts and buttons supporting the Chamber of Commerce, NAACP, and AFL-CIO -- and so several justices pushed him on the constitutionality of a more narrow rule, one restricting paraphernalia explictly referencing candidates and parties. Counsel hemmed and hawed but ultimately stated that he would make that "close call" by disallowing such a statute, though it would depend how the legislature worded it.

That unsuccessful attempt to play coy opened the door to discussions of how to draw the distinction between electioneering -- which the Court 25 years ago correctly held could be banned within a certain distance of the polling booth -- and what the law at issue proscribes. Chief Justice John Roberts and Justice Anthony Kennedy further expressed concern about the state's interest in maintaining "decorum" and "solemnity" (which Justice Elena Kagan later made light of by suggesting that it likened a poll to a church). As Justice Kagan put it, "it's hard to evaluate an overbreadth argument if we don't know where to draw the line."

This shouldn't be so hard. Federal and state laws everywhere already prohibit intimidation, deception, disruption, and other attempts to interfere with the right to vote, so the rare t-shirt that does one of those things -- for example, "Republicans vote tomorrow" or "Mexicans shouldn't vote" -- is already covered. As for the electioneering bit, a voter's wearing a button is very different from an activist’s waving signs or distributing literature -- or even that same voter's going up to others in line and trying to convince them to vote for a particular candidate.

Moreover, Minnesota’s law is so broad and gives so much discretion to poll workers that its enforcement is arbitrary. When the lawyer representing the election officials tried to explain that a political message or insignia could only be restricted if it related to an issue that was part of the campaign -- which seemed to be a change from his earlier litigating position -- Justice Samuel Alito shut him down with a devastating line of inquiry. Alito asked whether shirts with the following text could be banned: Parkland Strong, NRA, "I Miss Bill [Clinton]," Reagan-Bush '84. Counsel struggled to answer, at which pointed Alito asked whether, in the current political climate, the text of the Second Amendment could be banned. The response was yes!

That's about as much of a mic-drop moment as happens at the Supreme Court -- and it was followed by Justice Ruth Bader Ginsburg's concern that #MeToo apparel could be banned given that sexual harassment is very much an issue in contemporary discourse. "The [poll workers'] conversation about the shirt seems more disruptive" than the shirt itself, commented Justice Kennedy.

The challengers will still win their case -- only Justices Stephen Breyer and Sonia Sotomayor appeared firmly on the state's side, so I'm still confident the margin will be more than 5-4 -- but it’ll be closer, and the opinion likely narrower, than it needed to be.

For more on Minnesota Voters Alliance v. Mansky, see this blogpost, Cato's brief and my op-ed in today's Wall Street Journal.

February 27, 2018 5:34PM

Keeping Russia’s Electoral Misdeeds in Perspective

Concerns about Russia’s apparent interference in the 2016 U.S. presidential election are becoming deeper and more widespread.  The latest episode was the indictment of 13 Russian nationals as a result of Special Counsel Robert Mueller’s investigation.  The indictments allege that those individuals operated an internet “troll farm” producing propaganda to exacerbate America’s political and social divisions.  The alleged goal was to weaken Hillary Clinton’s electoral prospects (as well as those of Ted Cruz and Marco Rubio) and strengthen those of Donald Trump and Bernie Sanders.

If such activities occurred with the approval of Vladimir Putin’s government (as is likely the case) Moscow has committed a serious breach of diplomatic norms.  However, angry Americans need to keep the offense in perspective.  The social media propaganda campaign was surprisingly crude and amateurish.  Even the Mueller indictment conceded that there is no evidence the efforts of the Russian trolls changed even a small number of votes, much less altered the outcome of the presidential contest.

However, as I point out in a recent National Interest Online article, the reaction in some American political and media circles to the “Russian meddling” scandal, even before the latest revelations, was shrill to the point of outright hysteria.  The most egregious manifestation is the determination of some critics of the Trump administration to compare Moscow’s behavior to an act of war akin to Pearl Harbor and 9-11.

There are numerous examples of such hyperbole.  At a March 2017 House Homeland Security Committee session, Rep. Bonnie Watson Coleman (D-N.J.) accused Russia of engaging in outright warfare against the United States. “I think this attack that we’ve experienced is a form of war, a form of war on our fundamental democratic principles.”  During House Intelligence Committee hearings that same month, several of Coleman’s Democratic colleagues made similar alarmist statements.  Rep. Jackie Speier (D-CA) insisted that Russia’s activities were “an act of war.”  Washington Democratic congressman Denny Heck explicitly compared Russia’s actions to the Japanese attack on Pearl Harbor and the 9/11 terrorist attacks.  Such threat inflation was not confined to House members. Sen. Ben Cardin (D-MD), the ranking Democrat on the Senate Foreign Relations Committee, similarly described the election meddling as an “attack” and likened it to a “political Pearl Harbor.”  More recently, Bernie Sanders asserted that “Russia’s attack on our democracy is of enormous consequence.”

Since the Mueller indictments, the comparisons to the Pearl Harbor and 9-11 attacks have become even more numerous and explicit.  Jerrold Nadler (D-NY), the ranking Democrat on the House Judiciary Committee, asserted flatly that the troll farm’s activities were “the equivalent of Pearl Harbor.”  New York Times columnist Thomas Friedman described the incident as “a 9/11 scale event. They attacked the core of our democracy. That was a Pearl Harbor scale event."

There are several problems with such strident rhetoric.  First, the hypocrisy is a bit thick, since the Russian election meddling was merely an amateurish version of what the United States has done in dozens of countries, including democratic countries, for decades.  Indeed, U.S. operatives, some of whom had ties with Bill Clinton’s administration, played major roles in Russian President Boris Yeltsin’s 1996 re-election campaign.

Second, using the terminology and imagery of warfare seems to reflect a desire to trigger a second cold war with Moscow.  Such an approach is irresponsible.  Indeed, fomenting increased tensions with Russia, the one country with the nuclear firepower to destroy American civilization, clearly is unwise, since a cold war could always turn hot.  And to raise the risk level merely in response to mundane, ineffectual election meddling is utterly reckless.

Finally, equating Moscow’s conduct with the Pearl Harbor and 9-11 attacks is illogical and calls into question either the sincerity or judgment of those making the comparison.  The Intercept’s Glenn Greenwald highlights the obvious fallacy.

The only specific proposal one hears now when it comes to responding to Russian meddling is a call for “sanctions.” But if one really believes that Russia’s actions amount to Pearl Harbor or 9/11, then sanctions seem like a very lame — indeed, a woefully inadequate — response. To borrow their rhetoric, imagine if Roosevelt had confined his response to Pearl Harbor to sanctions on Japanese leaders, or if Bush had announced sanctions on Al Qaeda as his sole response to 9/11. If you really believe this rhetoric, then you must support retaliation beyond mere sanctions.

Such escalation, of course, would be tremendously dangerous.  Opponents of the Trump administration need to dial back their shrill accusations regarding the issue of Russia’s election meddling.  Even if all of the allegations made to date ultimately prove to be accurate (and that is far from certain), those misdeeds fall far short of constituting an act of war.  Introducing hysteria into the discussion serves no useful purpose.

February 27, 2018 3:20PM

The Death of an Open Internet

Today the House votes on the Fight Online Sex Trafficking Act (FOSTA), a piece of anti-sex trafficking legislation. It follows and incorporates an earlier effort by the Senate, the Stop Enabling Sex Traffickers Act (SESTA). The bill at issue today is actually a last minute amendment by Representative Mimi Walters (CA) that brings the worst elements of SESTA into FOSTA, creating a hybrid bill far worse than the sum of its parts. This bill has grave consequences for an open, competitive internet and for some people who use it.

Section 230 of the Communications Decency Act has long shielded internet service providers from liability for user generated content, facilitating the internet we know today. FOSTA would likely reduce these protections. FOSTA creates a new federal crime tied to the intent to promote sex trafficking using the internet. Alone, this might be considered an acceptable, narrowly tailored measure. However, the Walters amendment incorporates SESTA’s “knowingly” standard of liability, which withholds CDA Section 230 protections from sites “knowingly assisting, supporting, or facilitating” sex-trafficking. SESTA’s standard requires no intent to facilitate sex trafficking, relying upon the mere knowledge that one’s app or blog has been used by bad actors.

Preemptive action, driven by effective platform moderation and cooperation with law enforcement, remains the most efficient way to combat online sex trafficking. Unfortunately, FOSTA’s incorporation of SESTA’s “knowingly” standard would stymie this collaboration. If a platform attempts to prevent sex trafficking by removing and reporting offending user generated content, it risks establishing that it had knowledge of the content, rendering it liable for anything that might slip through the moderation process. Instead of encouraging platforms to combat sex trafficking, SESTA’s “knowingly” standard punishes private attempts to prevent the problem, and cripples broader attempts at effective content moderation.

A combined FOSTA/SESTA would benefit established social media platforms and trial lawyers at the expense of an open internet while doing little to prevent sex trafficking. Facebook may be well resourced enough cope with the increased legal risk imposed on hosts of user generated content, but their nascent competitors are not. Attempts to avoid running afoul of the “knowingly” standard will likely lead to greater reliance on automated filtering.

Other issues have not received the attention they merit. Libertarians (and others) often distinguish law from morality. What is immoral need not be illegal. American law in many jurisdictions does not honor that distinction and criminalizes exchanging sex for payment. Some members of Congress seem pleased this bill will better enforce those laws against people who voluntarily engage in such exchanges.

The consequence of doing so, however, should please no one. Members believe this bill will likely drive women who sell sex for a living off the internet. For them, that is a feature not a bug of the bill. But those engaged in the sex trade are unlikely to give up their work. Instead they will end up on the streets.  Why does this change of venue matter? Between 2002 and 2010, Craigslist introduced an “erotic services” section on its front page which was used almost exclusively to advertise illegal sex services. Three economists found that this section led to a 17.4 percent reduction in the homicide rate of the women in the relevant jurisdiction. They also noted “modest evidence” that the Craigslist section reduced female rape offenses. The economists concluded this reduction in violence came from the women moving indoors and matching more efficiently with safer clients. This potential increase in violence and murder should give pause to even those who deem selling sex immoral.

Congress has worked on these bills for some time through their committees. Now both bills have been thrown together, brought to the House floor, and are expected to become law, all in a week or so. Instead of this rush, the House Judiciary Committee could have finished its work, and the whole House debated and voted on the measure. The Senate and House then could have conferred and perhaps produced a bill acceptable to all. That would be “regular order” for Congress in lawmaking. It has once again been ignored.