Outrage of the moment: Oklahoma District Attorney Jason Hicks hired a private firm to assist in stopping motorists on the interstate and grabbing their belongings for forfeiture. Under the deal, he would pay the firm a share of assets seized on a sliding scale from 10 to 25 percent. Trampling of due process ensued–as, I think, should have been predicted–including the seizure of money found in a vehicle after a drug-sniffing dog alerted, even though no drugs were found. I’ve got more details at Overlawyered.

The Washington Post’s Wonkblog “interviews political scientists Jon Hurwitz and Mark Peffley about their book on how blacks and whites perceive the criminal justice system, and what it implies for Trayvon Martin’s death, George Zimmerman’s acquittal, and the aftermath.” An excerpt, quoting Hurwitz/​Peffley:

We asked whether it’s a “serious problem” in their community that police “stop and question blacks far more often than whites” or that police “care more about crimes against whites than minorities.” On average, 70 percent of blacks, but only 17 percent of whites, considered these serious problems…[W]hile about 25 percent of whites disagreed with the statement that the “courts give all a fair trial,” more than 60 percent of African Americans disagreed. Repeatedly, using every possible barometer, we found that blacks doubted the fairness of the justice system much more than whites…

Much of the difference comes down to either personal or vicarious experiences that people have with police and the courts. We found that African Americans, especially younger black men, were far more likely than whites to report being treated unfairly by the police because of their race. In fact, a recent Gallup Poll found that one of every four black men under age 35 said that the police have treated them unfairly during the last 30 days.

This excerpt reminded me of a data point I included in the health care chapter I wrote for the Encyclopedia of Libertarianism:

A 2004 survey published in the journal Health Affairs hints at one way [public-health] powers could be abused. Amid widespread concern about bioterrorism, roughly equal shares of white and black Americans expressed support for quarantines to contain a serious contagious disease. When subsequently asked whether they would support a compulsory quarantine, where the authorities would have the power to arrest violators, 25% of whites changed their minds, whereas 51% of blacks did, indicating an awareness that these policies would not necessarily be fairly implemented.

It also reminded me of this John McWhorter speech, reprinted in the Winter 2011 issue of Cato’s Letter, where he argues the war on drugs is behind “the strained relationship between young black men and police forces,” and racial progress requires ending the drug war.

We’ve known for years that the STELLAR WIND surveillance program authorized by President George W. Bush led to a dramatic “Hospital Showdown” at the bedside of then–attorney general John Ashcroft. Now, documents leaked by Edward Snowden have finally given us a clearer idea of what it was really all about.

The infamous showdown took place in March 2004, while Ashcroft was recovering from illness in a hospital bed. Acting attorney general James Comey—now President Obama’s nominee to head the FBI—was refusing to reauthorize one component of the secret surveillance program, having concluded that it was illegal. This prompted White House counsel Alberto Gonzales to rush to Ashcroft’s hospital room in hopes of getting the ailing AG to countermand Comey, who was tipped off about Gonzales’ plan and sped there as well.

In the confrontation that ensued, Ashcroft supported Comey—both formally (because Comey was legally the attorney general while Ashcroft was incapacitated) and on the legal substance. When Bush reauthorized the program anyway, despite the Justice Department’s conclusion that it was unlawful, Comey threatened to resign—with Ashcroft, FBI director Robert Mueller, and other top officials reportedly ready to join him. Bush ultimately backed down, and the troublesome component was briefly suspended until it could be renewed under a different legal authority.

In 2008, we learned that the central bone of contention wasn’t warrantless wiretapping, but rather some form of data mining. And more recently, via reporting in the Washington Post and a classified NSA report leaked by The Guardian, we learned that the controversy specifically involved Internet, not telephone, metadata. That last document in particular makes it fairly clear what the controversy must have been about—at least if you’re steeped in surveillance law. For those who aren’t, this is what probably happened:

STELLAR WIND had four components, each corresponding to types of information that President Bush had authorized the NSA to collect without a court order:

• telephone content (i.e., warrantless wiretapping)
• Internet content
• telephone metadata (i.e., the massive call records database)
• Internet metadata

The administration had originally carried out this surveillance on a radical theory of “inherent presidential authority” spelled out by then–Justice Department lawyer John Yoo, which held that during wartime, the president’s surveillance powers could not be constrained by Congress, or even the Fourth Amendment. After he returned to academia in 2003, however, his successors grew uncomfortable with his leaps of legal logic and stopped relying on his questionable opinions on a broad range of counterterrorism issues. To justify Bush’s surveillance programs, DOJ lawyers switched to the theory, spelled out at length in a January 2006 white paper, that Congress’s Authorization for the Use of Military Force (AUMF) against Al Qaeda and their affiliates had created a tacit exception to the Foreign Intelligence Surveillance Act (FISA). Though FISA is supposed to be the “exclusive means” by which intelligence surveillance is conducted, DOJ attorneys argued that the AUMF authority to use “all necessary and appropriate force” against those who the president “determines planned, authorized, committed or aided” the September 11 attacks necessarily included the power to conduct surveillance, superseding FISA’s judicial review requirements.

That was far less radical than Yoo’s argument, though still a pretty problematic bit of legal reasoning: Congress, after all, explicitly expanded the government’s surveillance powers in the USA Patriot Act soon after, which suggests they didn’t think they’d already given the president carte blanche in the AUMF. Moreover, the administration appears not to have asked for changes that would have made STELLAR WIND lawful at least in part out of fear that Congress would refuse. Still, that wasn’t what Comey objected to: He and his colleagues seem to have accepted this general line of reasoning when it came to warrantless wiretapping.

The presidential authorization to intercept telephone and Internet content, however, was at least somewhat limited: Though no court oversight was required, NSA had to believe that the target of its taps was in Afghanistan or linked to terrorism. If you bought the argument that the AUMF included permission to conduct surveillance within the United States outside the bounds of FISA, the terms of Bush’s content authorization lined up, more or less, with the language of the AUMF.

Metadata was another story, however. The point of looking at all that metadata was, as intelligence officials like to say, to gather a haystack so you could search for needles. Analyzing the metadata—the transactional information about a huge pool of phone and Internet communications—was supposed to help the NSA figure out which particular calls and e‑mails they needed to be intercepting. Obviously, then, that bulk collection couldn’t be limited to members of Al Qaeda and their allies.

Instead, the president’s authorization allowed metadata collection for any communication with at least one end outside the United States, or for communications where no party was “known” to be a U.S. citizen. Clearly, though, it would be harder to rely on the AUMF as the authority for that collection. And for reasons I’ll explain in a second, NSA may have had to analyze both domestic and foreign Internet traffic in many cases, just to sort out which was which.

For the phone records, this wasn’t necessarily a big problem. Obtaining the phone company’s business records—the “Call Detail Records” the carriers maintain anyway for their own business purposes—would not count as “electronic surveillance” as defined by FISA. Moreover, current (and widely criticized) Supreme Court doctrine holds that such business records are not protected by the Fourth Amendment. While other laws prohibit the disclosure of phone records to the government, they can be obtained without judicial approval via a National Security Letter or subpoena.

Even without those authorities, government lawyers may have concluded that the relevant laws didn’t apply to the president’s inherent authority in the intelligence arena. The FISA statute, after all, says that FISA and the Wiretap Act provide the “exclusive means” for governmental “electronic surveillance”—explicitly overriding any supposed inherent presidential authority. But it doesn’t say that about things that don’t qualify as “electronic surveillance,” even when FISA has procedures in place to cover those other types of data collection. 

Internet metadata, however, would have been trickier. To see why, it’s important to understand how the Internet works differently from the phone network. When the phone company connects a call on a traditional circuit-switched phone network, it naturally has to know which two numbers it is connecting, and for how long—which is pretty much the sum of the relevant “metadata.”

But that’s not how a packet-switched network like the Internet works. Packets of Internet information don’t just consist of “metadata” and “content,” but of many levels of metadata at different “layers” of the OSI stack familiar to techies. The many computers or programs involved in routing and processing that data typically only need to “look” at one or two of those layers to do their job. Especially if it’s just routing traffic from one foreign computer to another—traffic that just happens to be passing through the United States because that’s the cheapest path—the company running an Internet backbone doesn’t need to “see” or make any record of, for example, who is supposed to receive a particular e‑mail or what Web page a user is trying to browse.

To oversimplify somewhat: The router essentially only needs to know the Internet Protocol address of the computer that’s supposed to get a particular packet of data. If you send an e‑mail to jsanchez@​cato.​org, the router doesn’t really need to know that’s what it’s passing on: It sees that the packet is addressed to a particular port at 72.32.118.3 (the Cato Institute’s IP address) and just forwards it along. Then it’s up to Cato’s servers to “look” deeper into the next layer of data and determine that, oh yes, it’s an e‑mail message that should be delivered to the user named jsanchez.

This is the essence of the “end to end” architecture of the Internet: The “pipes” carrying data can be relatively dumb, just moving data to the right destination server, and letting the server take things from there. And that IP-level metadata wouldn’t even necessarily tell you whether the underlying communication was domestic or international. A packet of data traveling between Google’s servers and Yahoo!’s, for instance, might actually be carrying a message from a Google user in Pakistan to a Yahoo! user in Yemen.

What all of that means is that an company such as AT&T wouldn’t necessarily have any “business records” that contain the kind of metadata the NSA was interested in. Instead, the NSA would have to sift through the entire traffic stream itself and pluck out the metadata (and content) that needed further analysis. It did so, as we know thanks to an AT&T whistleblower, in a series of secret rooms containing powerful “semantic analyzers” that filtered all the traffic flowing through the company’s fiber optic cables. 

That, however, would pretty clearly be “electronic surveillance” as defined by FISA, meaning it would require either a warrant or (if they just wanted the metadata) a pen register order from the secret FISA court. And since they wanted everyone’s metadata, not just that of suspected Al Qaeda operatives, they would have a harder time applying the “AUMF exception” theory for permission. 

At first, according to the leaked NSA report, it seems like government lawyers tried to evade this rather obvious problem with variety of word games:

Specifically, NSA leadership, including OGC lawyers and the IG, interpreted the terms of the Authorization to allow NSA to obtain bulk Internet metadata for analysis because NSA did not actually “acquire” communications until specific communications were selected. In other words, because the Authorization permitted NSA to conduct metadata analysis on selectors that met certain criteria, it implicitly authorized NSA to obtain the bulk data that was needed to conduct the metadata analysis.

There were a couple of problems with this. First, while the NSA’s own internal definitions may not count a communication as “acquired” until it has been processed into a human-readable form, that’s not the definition that applies anywhere else in the law. Rather, if you bug someone’s room or tap her phone, you’ve “intercepted” her communication (and committed a felony) as soon as it’s rerouted into your recording device, regardless of whether you ultimately listen to the recorded conversation. As one federal court has put it, “when the contents of a wire communication are captured or redirected in any way, an interception occurs at that time.”

Second, NSA lawyers hadn’t actually been kept in the loop on the legal justifications for the program, which means they may not have understood that the administration was now relying on the AUMF as their authority for circumventing the FISA process. Maybe the words of the president’s authorization could be stretched to permit initial bulk collection, but it would be much harder to make the argument that the language of the AUMF could be similarly stretched.

This, then, was almost certainly the problem that provoked the hospital showdown. The interception of phone and e‑mail content was clearly electronic surveillance, but it was (in theory) limited to targets within the scope of the AUMF, which allowed the president to “determine” who had “aided” the 9/11 perpetrators. The bulk collection of phone records was not limited, but it also wasn’t “electronic surveillance” as defined by FISA. The bulk collection of Internet metadata, however, was both plainly “electronic surveillance” and too broad to shoehorn into the language of the AUMF. Comey, it would seem, wasn’t willing to countenance the legal gymnastics required to pretend otherwise.

Of course, we now know that the same data was soon being collected again under a blanket “pen register” order from the FISA Court—though the Court apparently imposed stricter limits on it than the NSA’s own lawyers had. This particular type of bulk collection was reportedly halted in 2011.

What they’re doing now instead is anybody’s guess.

“Bipartisanship” sounds like a good idea in theory, but it usually ends up as broad congressional agreement that the American people have too many liberties or too much money. However, there is one area in which there is a growing bipartisan effort toward increased individual liberty: fighting overcriminalization.

Today, the House Judiciary Committee’s Overcriminalization Task Force held its second hearing, in which members of Congress asked two leading legal experts about the importance of restoring some sanity to federal law. Specifically, this hearing focused on the lack of mens rea—that is, criminal intent—in many federal criminal prosecutions. Put simply, as the law stands, an American can unknowingly and accidentally break federal law yet still be held criminally liable for felonies in federal courts. The conduct that leads to these prosecutions is often not serious, and sometimes nothing more than an administrative mistake. Other times, these offenses are simply the result of overzealous federal prosecutors stretching the limits of broad statutory or regulatory language to pad their conviction totals without much effort or expenditure. Yet these seemingly harmless acts can trigger prosecutions that can cost families their livelihoods or even land innocent people in federal prison.

The abuse of the law is so clear that, throughout the hearing that lasted just over an hour, 10 members of Congress and two witnesses—Norman Reimer of the National Association of Criminal Defense Lawyers and law professor John Baker—found very little about which to disagree. You can watch the very heartening and informative hearing here (action begins at the 19:00 minute mark, just after 9:03AM), via the Library of Congress on USTREAM.

For a primer on overcriminalization, I highly recommend Cato’s new video with Families Against Mandatory Minimums’ Molly Gill:

For more Cato on overcriminalization, see here and here.

In June 2011, I noted here how a new cardless national ID system was forming up using state driver license data. It hasn’t gone very far. Passage of an immigration reform bill containing a national E‑Verify requirement would slam down the gas pedal.

But a few days ago, Idaho became the third state in the union to sign up for the Department of Homeland Security’s RIDE (Records and Information from DMVs for E‑Verify) program, which is administered by the ID-friendly American Association of Motor Vehicle Administrators. Idaho joins Mississippi and Florida in volunteering state driver information to the DHS.

As the full name of the program suggests, RIDE is an “add-on” to E‑Verify, the government’s highly problematic system for “internal enforcement” of immigration law via government background checks. RIDE is intended to let the E‑Verify system check the authenticity of driver licenses that are typically provided as one of the forms of ID during the broader verification process. E‑Verify’s problems are legion—I documented them in my 2008 paper, “Franz Kafka’s Solution to Illegal Immigration”—and we highlighted them again on Capitol Hill in March.

Much like mass-scale license plate scanning, the RIDE program represents the application of technology and systems developed for one purpose to vastly different ones. The RIDE program takes state driver licensing data—which is for driver licensing and traffic law enforcment—and turns it over to the DHS for federal law enforcement and the creation of a national ID.

In 2007, Idaho was the second state in the nation to reject the REAL ID Act, our national ID law. The Idaho House and Senate passed a resolution condemning that effort to put all Americans into a national ID system. But the bureaucrats appear to have waited out the legislature. With most people’s attention elsewhere, the Idaho Transportation Department teamed up with DHS officials to move forward with a national ID.

After the DHS has tapped into Idahoans’ driver data, there is no guarantee that the uses of it would be limited to E‑Verify. Mission creep is a law of gravity in government, and it’s likely over time that E‑Verify and Idaho driver data will be put to new and interesting uses by the federal government. Expect the DHS to get a lot more familiar with you and your driver license data if mandatory E‑Verify comes into effect and RIDE continues to grow.

As discussed in this space a few weeks back, the federal government is pushing a new “blueprint” ordering universities to open the way to wider complaints over unwelcome speech. Although the U.S. Department of Education quickly retreated to a seemingly less extreme interpretation of the law, the dangers remain that the field offices of its Office for Civil Rights will arm-twist academic institutions into stacked disciplinary methods and new curbs on speech. I’m in the July Commentary with an article bringing the controversy up to date. 

Two points worth noting: first, while the Obama administration has pushed the new plan hard, the wider trend of gradually stepped-up federal supervision over university life has been going on for decades under Republicans and Democrats alike. There’s not much resistance: university officials and organized professors are relatively half-hearted about sticking up for their own institutional autonomy. Indeed, the federal prescriptions represent in some ways a consolidation of power by already-powerful elements within the academy, as opposed to a perceived hostile takeover from the outside. In the same issue of Commentary, Philip Hamburger has an excellent article outlining how university researchers have for decades now tamely submitted to federally prescribed controls — overseen by so-called IRBs, or institutional review boards — over such relatively innocuous forms of “human-subjects research” as interviewing politicians and observing passersby in public places. In 2007, David Hyman wrote for Cato’s Regulation magazine on “The Pathologies of Institutional Review Boards.” (adapted from a post at Overlawyered).

The unsustainable path of federal entitlements has received huge attention in recent years, but the unfunded pension liabilities of state and local governments are also large. In recent work, economists Robert Novy-Marx and Joshua Rauh, of Rochester and Stanford, respectively, estimate that this liability may approach $3 trillion. 

That figure might sound paltry compared to the unfunded federal liabilities for Social Security and Medicare; Cato scholar Jagadeesh Ghokale estimates these to be more than $66 trillion as of fiscal year 2013.

Yet $3 trillion is hardly chicken feed. Novy-Marx and Rauh estimate that to fund these pensions fully within 30 years, states would need to raise taxes by $1,385 per household, per year, over that period. 

This calculation highlights the enormity of the unfunded federal liabilities. Assuming the necessary tax increases would be proportional to the difference between state and federal liabilities, it would take an extra $30,470 in taxes per household, per year, for 30 years, to fund the federal liabilities.

Rauh and Novy-Marx go on to examine options for reducing the state unfunded liabilities. One approach is a “soft freeze” that enrolls new hires in defined contribution rather than defined benefit plans; this reduces the required tax increases from $1,385 to $1,210 per year. Another approach is a hard freeze that stops benefit accruals for employees already in the defined benefits plans; this reduces the tax increases to $700-$800 per year.

An approach that Novy-Marx and Rauh do not consider is shrinking state and local government, which makes sense in many instances even if pensions are fully funded. Legalizing drugs, for example, would mean reduced employment of police, prosecutors, and prison guards; this not only saves pension costs but also wages, salaries, and health costs, while eliminating a government activity that never made sense in the first place.