Archive for the ‘Individual Rights’ Category.

Oregon Student Miles Sisk Gets Butt-Hurt over Criticism, Ken White Gets Hilarious

I am not even going to excerpt it.  You need to read Ken Whites satirical take on Miles Sisk demanding that bloggers who made animated GIF's critical of student government be thrown into concentration camps, or something.

How are people like this going to actually survive in the real world?  They are going to leave college and just sort of explode, like deep sea creatures brought up to the surface.  Someone please tell me that Miles Sisk is actually a clever performance artist.

Update:   OK, one little excerpt:

Sisk has not provided any evidence that the mean bloggers have made threats of harm as opposed to trite gifs and memes about banal student politics. "If a privileged kid who is a student leader at a good university feels he has to demand that the state protect him from criticism, what possible hope do most Americans have of governing themselves?" asked Yale historian Margaret Scott. "Freedom is hard. Self-governance is hard. Living together without resorting to tyranny is hard. Our founders pledged to each other 'our lives, our fortunes, and our sacred honor' to achieve those goals. This kid won't pledge to put up with someone mocking student government with a Parks & Recreation screencap."

Scientists agreed that Sisk's lack of fortitude — which was described as "pusillanimous," "snivellingly serfish," "contemptibly spineless," and "typical for a sophomore" — marked the rise of an American citizen unable to carry the burdens of representative government, individual rights, or unregulated daily interactions with other humans. "It's not just his craven thirst for totalitarian rule," agreed Duke professor Wil Trent. "It's also the abject ignorance. Running a society together requires a baseline of civic literacy. When even a student leader at a good university is ignorant of the most basic rights of other citizens — game over, man. Game over."

Missing the Point

John Hinderaker says that Democrats have been unsuccessful in their anti-Koch brother campaign because only 25% of Americans have a negative opinion of the Kochs and that has not changed much in 6 months.

But that strikes me as missing the point.  The Democrats have raised tens of millions of dollars from those 25% inflaming them with anti-Koch rhetoric.  They will outspend Republicans this year largely on the back of a campaign that, for example, never failed to mention the Kochs in almost every email sent out.  Further, they have succesfully turned the words "Koch Brothers" into some sort of boogeyman.  The media even here in Red state Arizona breathlessly discusses every contact a Republican candidate has with Koch Brothers-funded organizations while never ever mentioning any large backers on the Democratic side.  Despite the fact that Democrats have raised more so-called "dark money" than Republicans, nearly 100% of the media stories on dark money are about Republicans.  Further, by successfully (and asymmetrically) making public life a living hell for prominent Republican supporters, the Democrats are doing important battle space preparation for future elections, giving second thoughts to future potential Republican donors.

That, in my mind, is a political success.

(Of course, it is a disaster for liberty, and demonstrates EXACTLY why anonymous speech and donations have to remain legal.  The campaign waged right from the floor of the Senate by Democrats like Harry Reid to vilify private citizens who have been out-front and transparent about exercising their free speech is an insult to liberty).

Bundy Ranch the Wrong Hill for Libertarians to be Dying On

Here is something I find deeply ironic:  On the exact same day that Conservatives were flocking to the desert to protest Cliven Bundy's eviction from BLM land, San Francisco progressives were gathering in the streets to protest tenant evictions by a Google executive.   To my eye, both protests were exactly the same, but my guess is that neither group would agree with the other's protest.  I think both protests are misguided.

In the case of Cliven Bundy, I agree with John Hinderaker, right up to his big "But...."

First, it must be admitted that legally, Bundy doesn’t have a leg to stand on. The Bureau of Land Management has been charging him grazing fees since the early 1990s, which he has refused to pay. Further, BLM has issued orders limiting the area on which Bundy’s cows can graze and the number that can graze, and Bundy has ignored those directives. As a result, BLM has sued Bundy twice in federal court, and won both cases. In the second, more recent action, Bundy’s defense is that the federal government doesn’t own the land in question and therefore has no authority to regulate grazing. That simply isn’t right; the land, like most of Nevada, is federally owned. Bundy is representing himself, of necessity: no lawyer could make that argument.

It is the rest of the post after this paragraph with which I disagree.  He goes on to explain why he is sympathetic to Bundy, which if I may summarize is basically because a) the Feds own too much land and b) they manage this land in a haphazard and politically corrupt manner and c) the Feds let him use this land 100 years ago but now have changed their mind about how they want to use the land.

Fine.  But Bundy is still wrong.  He is trying to exercise property rights over land that is not his.   The owner gave him free use for years and then changed its policy and raised his rent, and eventually tried to evict him.  Conservatives and libertarians don't accept the argument that long-time tenancy on private land gives one quasi-ownership rights (though states like California and cities like New York seem to be pushing law in this direction), so they should not accept it in this case.   You can't defend property rights by trashing property rights.   Had this been a case of the government using its fiat power to override a past written contractual obligation, I would have been sympathetic perhaps, but it is not.

I would love to see a concerted effort to push for government to divest itself of much of its western land.  Ten years ago I would have said I would love to see an effort to manage it better, but I feel like that is impossible in this corporate state of ours.  So the best solution is just to divest.  But I cannot see where the Bundy Ranch is a particularly good case.  Seriously, I would love to see more oil and gas exploration permitted on Federal land, but you won't see me out patting Exxon on the back if they suddenly start drilling on Federal land without permission or without paying the proper royalties. At least the protesters in San Francisco likely don't believe in property rights at all.  Conservatives, what is your excuse?

I suppose we can argue about whether the time for civil disobedience has come, but even if this is the case, we have to be able to find a better example than the Bundy Ranch to plant our flag.

The Progressive View of the First Ammendment

I didn't really pay all that much attention to the Supreme Court's election speech case yesterday.   But as I learn the reasoning that is driving the dissent by the four Justices on the Left, I am left deeply worried about the future of speech rights.

I really haven't put much time in understanding how Progressives justify strong speech protections for non-political activity (e.g. pornography) while eschewing them for political speech (in the form of multiple types of limits on the amount and timing of speech one is allowed prior to an election).  Justice Breyer, in writing for the minority in in McCutcheon, lays out what I suppose is the Progressive position.

First up, here is David Bernstein

But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?

Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced.

Thus, Justice Breyer, writes, “Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”  Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s ”essential to effective democracy.”

Further showing off his affinity for the Progressive statism of a century ago (noted by Josh Blackman and me here), Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure ”public opinion could be channeled into effective governmental action.”  ...

Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, ”derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

This strikes me as both tortured and dangerous.  Once one posits that that there is some ill-defined, un-measurable value like "promotion of positive government action" can be balanced against free speech, then the government gets a nearly unlimited ability to limit speech.

James Taranto also highlights parts of the decision

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

What is democratic "order"?  What the hell is "collective" speech?  This is the kind of thing I would expect dictators-masquerading-as-elected-officials to spout as an excuse for suppressing dissent.  After all, doesn't dissent interfere with order?  How can we have collective speech when there are these folks out there disagreeing so much?   Again from Taranto:

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to Citizens United v. FEC (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

Citizens United and Turkey

So now that the Turkish incumbents have been re-elected, the government will allow Twitter to be turned back on in the country.

I think that the vast, vast majority of Americans would agree that this turning off of a communications vehicle several weeks before an election was a pretty transparent dodge to protect incumbent politicians, and that most of us would oppose such steps -- even be outraged by them.

So why the hell was McCain-Feingold's ban on 3rd party ad-based communications 60 days prior to an election any different?   These two steps seem absolutely identical to me, but my guess is most everyone agrees the Turkish actions were bad but the Citizens United decision that overturned the McCain-Feingold restrictions was met with much wailing and gnashing of teeth.

On Firefox and Wedding Photographers

The OK Cupid website is protesting the Mozilla CEO's past donations to anti-gay-marriage campaigns by asking visitors to use something other than Firefox to browse their site.  Readers will know that I have actually led a past Equal Marriage effort in Arizona, so while sympathetic to the cause here, I don't think I would go so far as to block a browser to my website.  Establishing this precedent that I would boycott services and products based on the political views of company employees (which is the issue here, Mozilla does not have any official position on gay marriage that I know of), I could consume my whole life doing research.  And then I would be stuck with questions like "Are the gay marriage opinions of the Firefox CEO better or worse than Google/Chrome's enabling of censorship in China?  As I have told some folks before, if I really wanted to do do business only with those who agree with me politically, I would find myself stuck for life listening to a couple of Rush albums and watching Firefly and Wire reruns all day.

But anyway, OK Cupid is a private company and I presume they do this with their owner's approval so all's fair in conducting commerce or choosing not to conduct commerce.  Except that just a few weeks ago everyone was arguing that photographers should be forced to serve gay weddings even when they do not wish to do so.  Is this any different?  If we are going to establish a public accommodation standard that a business cannot turn away customers based on political or religious preferences, then don't we have to enforce that in a value-neutral way?

Counter-Proposal for Kevin Drum on Voting Rights

Kevin Drum argues that rules preventing voting in many states by felons are unfair.  After all, we don't deny them their first amendment rights for having been in prison, right?

Well, unlike Drum, I put voting further down the list of essentials for a free society, well behind property rights and the rule of law (see here and here).  If I wanted to get worked up about post-incarceration loss of rights, I would address the increasingly draconian post-incarceration restrictions on those convicted of even trivial "sex" crimes (treating 17 years olds that sent a nude selfie the same as a rapist).

However, let's talk voting.  Yes we do not deny ex-cons their first amendment rights.  But we do deny them their second amendment rights.  So I offer this compromise:

I propose this bipartisan compromise: Voting and gun ownership rights for convicted felons should be identical. Set them wherever you think is fair, but make them consistent. I am not sure this is really a very fair comparison -- after all, a politician can do a heck of a lot more damage than a gun -- but as I said, I am willing to compromise.

Judge Finds That NSA Domestic Spying Likely Unconstitutional

Republicans Often Trash Property Rights As Well

It appears that Arizonans are all for property rights until a Goodwill store tries to open in their neighborhood.  And then not so much.  A group led in part by my former Republican Congressman John Shaddegg believes that their "right" to determine how other people's property is used were trampled by allowing a local strip mall to rent a large vacant store space to a legitimate business.

goodwill-protest1

 

Basically, these residents live in a small prosperous neighborhood called Moon Valley surrounded by less prosperous areas.  There are apparently not enough residents in this neighborhood to support the upscale commercial boutiques they would like to see, so their preference is that this poor landlord leave his property vacant rather than rent it to a business that might cause these folks to encounter a poor person on the street.  I am sure these folks would say they have no problems with poor (likely mostly Hispanic) folks per se, but not in their neighborhood!  (By the way, in this town we have the nicest Goodwill stores I have ever seen -- my daughter loves to shop for funky stuff there).

I don't think I am being too hard on them.  Here is one letter to the Mayor's office from a resident:

What does this mean? Quite simply, we now have a mega store/WAREHOUSE in Moon Valley. Goodwill has closed all the surrounding stores to create a "funnel" effect whereby all the surrounding neighborhoods will flock to Moon Valley for a deal. And, they are now free to import as many goods as they like from anywhere they choose to fill up their new mega store and bring loyal Goodwill shoppers to Moon Valley by the droves.

I sat in the parking lot of the Shaw Butte Plaza today and was so saddened. I thought, "We are such a wonderful, unique, special neighborhood, why would you do this to us? Was furthering your political career worth it?" Because, make no mistake, you have sold us out.

I guess all that brown skin walking around is going to destroy her little bit of specialness.  Tough.

We have the same thing going on in our neighborhood.  The country club on whose golf course many of the houses in my area are located was recently revamped.  It was redesigned into a links-style course that is very unusual in the Phoenix market.  I actually thought this was a pretty smart move -- when there are something like 200 golf courses in the area, it makes sense to try to be unique.

Well, most everyone in the neighborhood thinks it is ugly -- I don't live on the course but I actually kind of like it.  But the sort of shaggy, wild look they adopted for it is not at all what Arizonans are used to.  I will confess they did some things that seem crazy to me, like removing all the trees, but my general reaction has been, well, its their land.   My neighbors do not share my insouciance however, and have freaked, writing letters and threatening lawsuits.   Everyone wants property rights for themselves but veto power over what all their neighbors do with their property.

Disclosure:  I grew up in Houston, so zoning is foreign to me.

ACLU's Distaste for Commerce

Walter Olson writes (emphasis added)

Elane Photography LLC v. Vanessa Willock is the case in which an Albuquerque, NM woman has (thus farsuccessfully) sued husband-and-wife photographers under New Mexico’s “public accommodations” discrimination law for their reluctance to shoot photos of her commitment ceremony to a female partner. One of the most dismaying elements of the case is that the American Civil Liberties Union has taken the anti-liberty side. Adam Liptak in the NYT:

I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. [Elane] Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.

Earlier, Olson made the useful point that large organizations like the ACLU are not monolithic -- they have internal conflicts on issues like this.  But based on my interactions with the ACLU, I believe the key word is in bold:  "commercial".   For many at the ACLU, the fact that an activity is commercial or for money voids or cancels out any rights one has.  Property rights or rights exercised in the conduct of commerce tend to always come last (if at all) at the ACLU.  Which is why I donate every year to the IJ, the organization the ACLU should have been if they had not been founded by Stalinists.  Update:  That is unfair.  It's like criticizing someone because of what his father did or believed.  Many organizations move beyond their original founder's legacy.  But it is never-the-less undeniable that -- at best -- the ACLU has no interest in property rights or commercial freedoms.

Schools Increasingly Constitution-Free Zones

Reason rightly highlights this story about a kid in Georgia facing 10 years in jail because his school found his fishing tackle box in his car and in it was, gasp, his fishing knife.

But what the local news story fails to make a point about is the absurdly low bar school officials have to clear to search student's cars.

Williams, a senior at Allatoona High School, became the subject of a warrantless search after a fellow student told a campus police officer that he or she saw smoke rising from Williams’ car in the student parking lot and it smelled like marijuana. An assistant principal searched the car and did not find any marijuana but did find a pocket knife in the center console, enough to get Williams suspended for 10 days and possibly expelled, while facing felony criminal charges.

Smoke was rising from the car?  Really?  Like Spiccoli's van in Fast Times for Ridgemont High?  I am sure glad this kind of administrative lawlessness was not allowed when I was in school.  I wouldn't be surprised if the original student report to the school wasn't a pure fabrication out of spite against this student.

Wow, This Element of Law Sure Has Gotten Screwed Up

From the awesome Ken White at Popehat:

NYPD Officer Craig Matthews complained about an illegal quota system for stops and arrests. As anyone familiar with NYPD culture could predict, he experienced retaliation from his superiors for doing so. When he sued, the NYPD hit him with an argument that's outrageous but very likely legally correct: it's your job to report misconduct, so the First Amendment doesn't prohibit us from retaliating against you for doing so.

Wait, what?

The Association of Lawless Broomstick-Fetishist Brown-Person-Groping Can't-Shoot-Straight Thugs has a point. Because their employer is the government, public employees have limited First Amendment rights to be free of employer retaliation for their speech. But in in Garcetti v. Ceballos the Supreme Court said that right protects speech on matters of public concern unless the speech is part of a job duty:

We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Thus in Garcetti the Court said a Deputy DA had no right to be free of retaliation for pointing out perjury in an arrest warrant application because doing so was his job. I explained how this doctrine works — and how courts have made an exception for professors at public colleges — in this post.

The result is that an entity like the NYPD can argue that its officers are required by their job to report unlawful activity by their superiors and fellow officers, and that therefore their act of reporting such misconduct enjoys no First Amendment protection.

The Real Problem with the Pledge of Allegiance

Atheists in Massachusetts are challenging the Pledge of Allegiance.  I certainly think mention of God in a national standard oath is problematic Constitutionally.

However, there is a bigger problem with the Pledge that no one, even many libertarians, seem to mention:  It is abhorrent for our government to be requiring its citizens to take a loyalty oath.  This is particularly true in that the requirement typically falls on minors who don't have the experience and cognitive ability to parse what they are pledging (there is a reason we don't allow minors to sign legal papers).

There is nothing in our original model of government that requires that citizens be loyal to the country or to its government.  We must observe the rule of law and respect the rights of others, but at some level what does "allegiance" even mean?  I said above that kids can't understand what they are promising to do, but I don't even understand.  When I say those words, what commitment am I making, exactly?

Historically, the requiring of citizen loyalty oaths has certainly not been a marker of a free society.  In general, the more totalitarian the society, the more emphasis is placed on allegiance pledging.  It could be worse -- the most abusive of regimes generally require loyalty oaths directly to the ruler, rather than to the nation itself.  We have not gotten there yet, though some morons seem to be begging for just this sort of personality-cult totalitarianism.

Meet the Person Who Wants to Run Your Life -- And Obama Wants to Help Her

I am a bit late on this, but like most libertarians I was horrified by this article in the Mail Online about Obama Administration efforts to nudge us all into "good" behavior.  This is the person, Maya Shankar, who wants to substitute her decision-making priorities for your own

article-2381478-1B11DB61000005DC-332_308x425

 

If the notion -- that a 20-something person who has apparently never held a job in the productive economy is  telling you she knows better what is good for you -- is not absurd on its face, here are a few other reasons to distrust this plan.

  • Proponents first, second, and third argument for doing this kind of thing is that it is all based on "science".  But a lot of the so-called science is total crap.  Medical literature is filled with false panics that are eventually retracted.  And most social science findings are frankly garbage.  If you have some behavior you want to nudge, and you give a university a nice grant, I can guarantee you that you can get a study supporting whatever behavior you want to foster or curtail.  Just look at the number of public universities in corn-growing states that manage to find justifications for ethanol subsidies.  Recycling is a great example, mentioned several times in the article.  Research supports the sensibility of recycling aluminum and steel, but says that recycling glass and plastic and paper are either worthless or cost more in resources than they save.  But nudgers never-the-less push for recycling of all this stuff.  Nudging quickly starts looking more like religion than science.
  • The 300 million people in this country have 300 million different sets of priorities and personal circumstances.  It is the worst hubris to think that one can make one decision that is correct for everyone.  Name any supposedly short-sighted behavior -- say, not getting health insurance when one is young -- and I can name numerous circumstances where this is a perfectly valid choice and risk to take.
  • The justification for this effort is social science research about how people manage decisions that involve short-term and long-term consequences

Some behavioral scientists believe they can improve people's self-control by understanding the relationship between short term memory, intelligence and delay discounting.

This has mostly been used to counter compulsive gambling and substance abuse, but Shankar's entry into government science circles may indicate that health insurance objectors and lapsed recyclers could soon fall into a similar category

I am sure there is a grain of truth in this -- all of us likely have examples of where we made a decision to avoid short term pain that we regretted.  But it is hilarious to think that government officials will somehow do better.  As I have written before, the discount rate on pain applied by most legislators is infinite.  They will do any crazy ridiculous thing that has horrible implications five or ten years from now if they can just get through today.  Why else do government bodies run massive sustained deficits and give away unsustainable pension and retirement packages except that they take no consideration of future consequences.  And it is these people Maya wants to put in charge of teaching me about delay discounting?

  • It probably goes without saying, but nudging quickly becomes politicized.  Is nudging 20-something health men to buy health insurance really in their best interests, or does it help keep an important Obama program from failing?

Postscript:  Here is a great example of just how poorly the government manages delay discounting.  In these cases, municipalities are saddling taxpayers with almost certainly bankrupting future debt to avoid paying any short-term costs.

Texas school districts have made use of another controversial financing technique: capital appreciation bonds. Used to finance construction, these bonds defer interest payments, often for decades. The extension saves the borrower from spending on repayment right now, but it burdens a future generation with significantly higher costs. Some capital appreciation bonds wind up costing a municipality ten times what it originally borrowed. From 2007 through 2011 alone, research by the Texas legislature shows, the state’s municipalities and school districts issued 700 of these bonds, raising $2.3 billion—but with a price tag of $23 billion in future interest payments. To build new schools, one fast-growing school district, Leander, has accumulated $773 million in outstanding debt through capital appreciation bonds.

Capital appreciation bonds have also ignited controversy in California, where school districts facing stagnant tax revenues and higher costs have used them to borrow money without any immediate budget impact. One school district in San Diego County, Poway Unified, won voter approval to borrow $100 million by promising that the move wouldn’t raise local taxes. To live up to that promise, Poway used bonds that postponed interest payments for 20 years. But future Poway residents will be paying off the debt—nearly $1 billion, all told—until 2051. After revelations that a handful of other districts were also using capital appreciation bonds, the California legislature outlawed them earlier this year. Other states, including Texas, are considering similar bans.

Or here is another example, of New York (the state that is home to the mayor who tries to nudge his residents on everything from soft drinks to salt)  using trickery to consume 25 years of revenue in one year.

Other New York deals engineered without voter say-so include a $2.7 billion bond offering in 2003, backed by 25 years’ worth of revenues from the state’s gigantic settlement with tobacco companies. To circumvent borrowing limits, the state created an independent corporation to issue the bonds and then used the money from the bond sale to close a budget deficit—instantly consuming most of the tobacco settlement, which now had to be used to pay off the debt.

By the way, I recommend the whole linked article.  It is a pretty broad survey of how state and local governments are building up so much debt, both on and off the books, and how politicians bend every law just to be able to spend a few more dollars today.

The Question the NSA is Not Answering

The NSA is claiming that the data that they grabbed in essentially warrant-less Hoovering up of telephone and Internet metadata has helped in certain investigations.

I have no doubt that is probably true.

But that is not the right way to frame the problem.  The real issue is:  Did being able to data mine metadata for all Americans help solve the case better and faster than had they been required to seek specific probable cause warrants for data from specific people?

To make clear the distinction, let's suppose I were trying to justify stealing a copy of every book in Barnes & Noble.  I might be able to accurately say that those books helped me writing a good Napoleon paper for school.   But could I have achieved the same goal - writing a paper on Napoleon - by purchasing individual books as needed via legal shopping processes?  The answer is probably "yes."  Having all the books pre-stolen only contributed in that it saved me the hassle of going down to the store and finding a specific book I needed.

In the same way, I suspect that having this data base merely saved FBI and others the hassle of filling out some paperwork in each case.  I am not sure incremental success rates in a few cases is enough justification to rip up the Constitution, but I am sure that laziness is not.

Message to Obama: Respecting the Rule of Law includes respecting the Constitution

I have been on the road with business, and working on a fairly big announcement for next week, so I have been slow in keeping up with the emerging NSA scandal.  I want to give a few brief thoughts on Obama's defense of extensive NSA data gathering.  Obama said:

That’s not to suggest that, you know, you just say, trust me, we’re doing the right thing, we know who the bad guys are. And the reason that’s not how it works is because we’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

  1. I don't trust any of the three branches of government.  You know what, neither did many of the folks who wrote the Constitution
  2. The involvement of the three branches of government in this issue boil down to less than two dozen people:  the President, a subset of the 15 members of the Senate Intelligence Committee, and a subset of the 11 judges (3?) on the FISA court, which has demonstrated pretty conclusively that they will approve any warrant no matter how absurdly broad
  3. Non-specific warrants that basically cover open-ended data gathering on every single person in the country, with no particular suspect or target named, are clearly un-Constitutional.  "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  I would love to know what probable cause the NSA cited to seized Warren Meyer's Verizon call records.  20 Washington insiders cannot change the Constitution -- that requires a vote of 3/4 of the states.
  4. Obama has stopped even pretending to care about the Constitution, an amazing fact given that he is nominally a Constitutional professor
  5. Partisan hypocrisy has never been clearer, as traditional defenders of civil liberties and opponents of the Patriot Act like Al Franken rush to defend the NSA spying (thank God for Linsey Graham, who can be counted on to be a consistent authoritarian).  Democrats and Republicans have basically switched sides on the issue.

When assessing any new government power, imagine your worst political enemy wielding the power and make your judgement of the powers' appropriateness based on that worst-case scenario.  Clearly, though, no one can see past the occupant of the White House. with Coke party members backing powers for Coke Presidents but opposing them for Pepsi Presidents and vice-versa.

Cost and Benefit and the Fourth Ammendment

From Reuters via Zero Hedge:

The Obama administration on Thursday acknowledged that it is collecting a massive amount of telephone records from at least one carrier, reopening the debate over privacy even as it defended the practice as necessary to protect Americans against attack.

The admission comes after the Guardian newspaper published a secret court order related to the records of millions of Verizon Communications customers on its website on Wednesday.

A senior administration official said the court order pertains only to data such as a telephone number or the length of a call, and not the subscribers' identities or the content of the telephone calls.

Such information is "a critical tool in protecting the nation from terrorist threats to the United States," the official said, speaking on the condition of not being named.

"It allows counter terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States," the official added.

The revelation raises fresh concerns about President Barack Obama's handling of privacy and free speech issues. His administration is already under fire for searching Associated Press journalists' calling records and the emails of a Fox television reporter as part of its inquiries into leaked government information.

A few thoughts:

  1. I have no doubt that this makes the job of tracking terrorists easier.  So would the ability to break down any door anywhere and do random house searches without a warrant.  The issue is not effectiveness, but the cost in terms of lost liberty and the potential for abuse.  The IRS scandal should remind us how easy it is to use government power to harass political enemies and out-groups
  2. The FISA court is a bad joke, as it seems willing to issue "all information on all people" warrants.  I think there is little doubt that similar data gathering is going on at all the other carriers.
  3. Luckily, Susan Rice is now the National Security Adviser.  I am sure with her proven history of not just being a political puppet but really digging in to challenge White House talking points that she will quickly get to the bottom of this.

Taking the Fifth, Because No One Can Pledge Confidentiality any More

Teacher John Dryden was absolutely correct in counseling his students to take the fifth rather than fill out a school drug use survey.  Three cheers for him

Yesterday John Dryden, the Illinois teacher who warned his students that they did not have to answer questions about alcohol and drug use on a survey distributed by their high school, got a warning of his own. The Kane County Chronicle reports that the Batavia School Board voted to issue "a written warning of improper conduct" to Dryden, who also was docked a day's pay. Batavia School Superintendent Jack Barshinger explained Dryden's offense this way:

In this case, district teachers, social workers, guidance counselors, psychologists and others worked together for over a year to select a data-gathering instrument that could be used to determine what social or emotional issues our high school students are experiencing, and whether individual students could benefit from new or increased supportive intervention by our staff. These purposes were shared with our parents and our teachers.

The issue before the board was whether one employee has the right to mischaracterize the efforts of our teachers, counselors, social workers and others; and tell our students, in effect, that the adults are not here to help, but that they are trying to get you to "incriminate" yourselves.

Barshinger seems to think it is inconceivable that there could be anything wrong with the survey, since people with good intentions worked on it for "over a year." Yet the survey forms that Dryden picked up from his mailbox 10 minutes before his first class on April 18 not only asked about illegal behavior; they had students' names on them, thereby destroying any assurance of confidentiality.

Forget for a minute whether or not the public school employees were trustworthy (which is a heroic assumption in and of itself).  But consider local law enforcement.  They get a tip that kids have admitted drug use on these forms.  What do they do?  Well in many jurisdictions (imagine our own Joe Arpaio in action here) the police would immediately pull out every legal stop (and a few illegal ones likely) to seize these surveys.

Don't believe me?   Back in 2003 Major League Baseball asked its players to take a super-confidential drug test whose results would never be released for the purpose of assessing the extent of steroid use in baseball (almost exactly the same purpose the school is claiming).  Eventually, the FBI, Congress, and every other government agency tried, and were eventually mostly successful, in obtaining these supposedly secret confidential tests.

Several years later, Frank Mitchell was asked by MLB to investigate the steroid issue.  He asked for players to speak to him "confidentially" about steroid use.  The Players Association took better care of its members than this particular school does of its students, counseling players:

...while Senator Mitchell pledges in his memo that he will honor any player request for confidentiality in his report, he does not pledge, because he cannot pledge, that any information you provide will actually remain confidential and not be disclosed without your consent. For example, Senator Mitchell cannot promise that information you disclose will not be given to a federal or state prosecutor, a Congressional committee, or perhaps turned over in a private lawsuit in response to a request or a subpoena.

This is EXACTLY the statement that could and should have been made to students about this drug survey -- three cheers for one brave teacher willing to do so.  Shame on the rest of the school for its naivete (at best) and callous disregard for the students (at worst).

Spying on the Press

Well, the silver lining of this story is that the press, who until now have generally yawned at libertarian concerns about warrantless searches and national security letters, particularly since that power has been held by a Democrat rather than a Republican, will now likely go nuts.

You have probably seen it by now, but here is the basic story

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative's top executive called a "massive and unprecedented intrusion" into how news organizations gather the news.

The records obtained by the Justice Department listed incoming and outgoing calls, and the duration of each call, for the work and personal phone numbers of individual reporters, general AP office numbers in New York, Washington and Hartford, Conn., and the main number for AP reporters in the House of Representatives press gallery, according to attorneys for the AP.

In all, the government seized those records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown but more than 100 journalists work in the offices whose phone records were targeted on a wide array of stories about government and other matters.

The AP believes this is an investigation into sources of a story on May 7, 2012 about a foiled terror attack.  This bit was interesting to me for two reasons:

The May 7, 2012, AP story that disclosed details of the CIA operation in Yemen to stop an airliner bomb plot occurred around the one-year anniversary of the May 2, 2011, killing of Osama bin Laden.

The plot was significant because the White House had told the public it had "no credible information that terrorist organizations, including al-Qaida, are plotting attacks in the U.S. to coincide with the (May 2) anniversary of bin Laden's death."

The AP delayed reporting the story at the request of government officials who said it would jeopardize national security. Once government officials said those concerns were allayed, the AP disclosed the plot because officials said it no longer endangered national security. The Obama administration, however, continued to request that the story be held until the administration could make an official announcement.

First, it seems to fit in with the White House cover-up over Benghazi, in the sense that it is another example of the Administration trying to downplay, in fact hide, acts of organized terrorism.  I have criticized the Administration for throwing free speech under the bus in its Benghazi response, but I must say their reasons for doing so were never that clear to me.  This story seems to create a pattern of almost irrational White House sensitivity to any admission of terrorist threats to the US.

Second, note from the last sentence that the White House is bending over backwards to investigate the AP basically for stealing its thunder before a press conference.  Wow.  Well if that were suddenly illegal, just about everyone in DC would be in jail.

Update:  Some thoughts from Glenn Greenwald

how media reactions to civil liberties assaults are shaped almost entirely by who the victims are. For years, the Obama administration has been engaged in pervasive spying on American Muslim communities and dissident groups. It demanded a reform-free renewal of the Patriot Act and the Fisa Amendments Act of 2008, both of which codify immense powers of warrantless eavesdropping, including ones that can be used against journalists. It has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined, threatened to criminalize WikiLeaks, and abused Bradley Manning to the point that a formal UN investigation denounced his treatment as "cruel and inhuman".

But, with a few noble exceptions, most major media outlets said little about any of this, except in those cases when they supported it. It took a direct and blatant attack on them for them to really get worked up, denounce these assaults, and acknowledge this administration's true character. That is redolent of how the general public reacted with rage over privacy invasions only when new TSA airport searches targeted not just Muslims but themselves: what they perceive as "regular Americans". Or how former Democratic Rep. Jane Harman -- once the most vocal defender of Bush's vast warrantless eavesdropping programs -- suddenly began sounding like a shrill and outraged privacy advocate once it was revealed that her own conversations with Aipac representatives were recorded by the government.

Hopefully, The Phoenix Police Won't Find You Odd

Raymond Rodden was arrested and dragged to the police station for interrogation for a) taking pictures of the Sandra Day O'Connor Federal Court Building (not a crime) and b) walking down an alley (also not a crime).  The police followed him for an hour on foot (how creepy would that be), tore his car apart, have impounded and will not return his phone and computer, and contacted the man's boss to make sure Rodden would get fired from his job.  Eventually they released him, because he had done nothing illegal.  They kept repeating this to him in the interrogation:

“I told them I was not doing anything illegal by taking photos and they kept saying, ‘we’re not disputing that it’s illegal, we just find it odd,’” he said.

Sorry, but people cannot be arrested, detained, and have their property searched and seized for being odd.

This seems to be a typical police state reaction after a terrorist incident or public crime.  If we had just hassled that guy earlier for being odd, this may never have happened.  The problem is that for every one person who does odd things in the runup to a horrendous crime, another hundred thousand people do odd things because either they are odd or because we simply do not understand their motives.

My Problem With Benghazi...

... was not the crisis management but Obama's throwing free speech under the bus.

I can live with poor crisis management.  I have been a part of enough to understand that things are different in real time than they look when monday-morning quarterbacking the events.  In particular, it can be very hard to get reliable data.  Sure, the correct data is all likely there, and when folks look back on events, that data will be very visible and folks will argue that better choices should have been made.

A great example of this is when historians sort through data to say that FDR missed (or purposely ignored, if you are of that revisionist school) clear evidence of the Japaneses surprise attack on Pearl Harbor.  Sure, the correct clues stand out like flashing lights to the historian, but to the contemporary they were buried in 10,000 ostensibly promising false leads.

In real time, good data is mixed in with a lot of bad data, and it takes some time -- or a unique individual -- to cut through the fog.  Clearly neither Obama nor Clinton were this individual, but we should not be surprised as our selection process for politicians is not really configured to find such a person, except by accident.

No, the problem I have with Benghazi is that when push came to political shove, the President threw free expression under the bus to protect himself.  I am a sort of city on the hill isolationist, who prefers as much as possible for the US to have influence overseas by setting a positive example spread through open communications and free trade.  In this model, there is nothing more important for a US President to do than to support and explain the values of individual liberty, such as free expression, to the world.

Instead, it is increasingly clear he blamed some Youtube video, an exercise in free expression, for the tragedy.  And not just in the first confused days, but five days later when he put Susan Rice on TV to parrot this narrative.  And when the Feds sent a team to arrest and imprison the video maker.  And days after the Rice interviews when Hillary parroted the same message at the funeral, and days after that when Obama spoke to the UN, mentioning the video 6 or 7 times.    Obama took to his bully pulpit and railed against free speech in front of a group of authoritarians who love to hear that message, and whose efforts to stifle speech have historically only been slowed by America's example and pressure.

The Road to Totalitarianism is Paved with Good Intentions

The first three times I read this, I was sure it was supposed to be ironic and sarcastic.  I am increasingly convinced that this was written for real

Mayor Michael Bloomberg’s ban on sugary drinks is good for you, New York, and for the rest of the country, too.

And here’s something else, a guaranteed wager: Winston Smith, the suffering protagonist in George Orwell’s “Nineteen Eight-Four,” would trade every aspect of the society dreamed up for him by the sadistic totalitarian government in place of a ban on sugary drinks in 16-ounce cups any day.

There I said it. I know the sentiment is unpopular. I know people will fear the ramifications of a ban on that black bubbling cola in their plastic Big Gulps because they believe it is the road to bigger restrictions on more of their choices. It won’t.

We are a nation of fatties. According to the Centers for Disease Control and Prevention, or CDC, more than one-third of United States adults -- 35.7 percent -- are obese. And obesity is expensive.

Medical costs associated with obesity were estimated at $147 billion in 2008, the CDCnoted. And for people who are obese were $1,429 higher than those of normal weight. While sugary drinks like soda and fruit drinks are not the only culprit here, it is a fact that people are consuming these beverages at an alarming rate. Something needs to be done.

I am sure long-time Coyote Blog readers will not the Health Care Trojan Horse (TM) -- using the socialization of health care costs to justify coercive interventions in individual choices that used to be considered personal.

I have been studying HG Wells of late.  One thing I didn't know about him before is that for all his skepticism about the future in many of his books, and all his prescience about the worst impulses of man, he believed it was possible to create an ideal government that would a dictatorship of the elite, scientific, and enlightened.  Historians called that view "naive", and at the time it may have been. But to hold this sort of view today, as this author does, given history, is simply insane.  Power begets more power.  Coercion begets more coercion.

There really is a very simple test for this - simply imagine the coercive power you advocate in the hands of your worst political enemy.  Still happy with it?  I bet not.

Shredding the Fourth Amendment to Protect Little Mermaid Royalties

CISPA passes the House.  Here's hoping for gridlock in the Senate because, whatever he might promise, there is no way Obama is going to veto legislation that helps Hollywood while simultaneously expanding the Administration's warrant-less search power.

The Low Information Voters Will Inherit the Earth

Via Eugene Volokh

Gator Country 101.9 morning deejays Val St. John and Scott Fish are back on the air today after a one-day suspension for an April Fool’s Day joke involving Lee County’s water supply.

The hosts of the “Val and Scott In The Morning Show” on the Bonita Springs-based country music station were suspended Monday after perpetrating the joke that involved telling listeners there was dihydrogen monoxide in the county’s water. Dihydrogen monoxide is another way to describe water.

Some listeners didn’t get the joke, however, and began calling the Lee County Utility asking about the issue....

Tony Renda, 101.9 general manager, said in a message to The News-Press today that suspension of the two deejays remained in effect until the following was accomplished:

“Although the VAST MAJORITY of our listeners got the joke, some didn’t. We needed to ensure that ALL of our listeners understood that there was no problem with the water,” Renda said in the message, adding that the station had to ensure that both the Lee County Utility and Lee County Health Department were both satisfied with the efforts.

After seeing the very funny Penn and Teller episode (where they have environmental activists signing a petition to ban dihydrogen monoxide), I am not surprised that people did not get the joke.  The amazing thing is the fact that the radio station, and society in general, felt the need to pander to this ignorance by actually suspending the radio show hosts.  In effect, they were forced to apologize for the public's appalling ignorance.

This is the society that progressives have been fighting for -- one in which the listener defines acceptable vs. unacceptable speech based on his or her own hurt feelings and ignorance.

Arrogance and Coercion

Years ago I had an argument with my mother-in-law, who is a classic Massachusetts liberal  (by the way, we get along fine -- I have no tolerance for the notion that one can't be friends with someone who has a different set of politics).  The argument was very clarifying for me and centered around the notion of coercion.

I can't entirely remember what the argument was about, but I think it was over government-mandated retirement programs.  Should the government be forcing one to save, and if so, should the government do the investment of those savings (ie as they do in Social Security) even if this means substantially lower returns on investment?

The interesting part was we both used the word "arrogant."  I said it was arrogant for a few people in government to assume they could make better decisions for individuals.  She said it was arrogant for me to assume that all those individuals out there had the same training and capability that I had to be able to make good decisions for themselves.

And at the end of the day, that is essentially the two sides of the argument over government paternalism boiled down to its core.  I thought coercion was immoral, she thought letting unprepared people make sub-optimal decisions for themselves when other people know better is immoral.  As with most of my one on one arguments I have with people, I left it at that.  When I argue face to face with real people, I have long ago given up trying to change their minds and generally settle for being clear where our premises diverge.

I am reminded of all this reading Bruce McQuain's take on Sarah Conly's most recent attempt to justify coercive paternalism (the latter is not an unfair title I have saddled her with -- it's from her last book).  Reading this I had a couple of other specific thoughts

  1. I am amazed how much Conly and folks like her can write this stuff without addressing the fundamental contradiction at its core -- if we are so bad making decisions for ourselves, why do we think the same human beings suddenly become good at it when they join government?  She would argue, I guess, that there are a subset of super-humans who are able to do what most of us can't, but how in a democracy do we thinking-impaired people know to vote for one of the supermen?  Or if you throw our democracy, what system has ever existed that selected for leaders who make good decisions for the peasants vs., say, selected for people who were good generals. 
  2. Is there any difference between Conly's coercive paternalism and Kipling's white man's burden?  Other than the fact that the supermen and the mass of sub-optimizing schlubs are not differentiated by race?  It's fascinating to see Progressives who are traditionally energized by hatred of colonialism rejuvinating one of imperialism's core philosophical justifications.