The Atlantic: Why I Refuse to Vote for Barack Obama

The case against casting a ballot for the president -- even if you think he's better than Mitt Romney.

Read it here: http://www.theatlantic.com/politics/archive/2012/09/why-i-refuse-to-vote-for-barack-obama/262861/

Cato: 9/11 and Its Legacy of Fear

by Gene Healy at http://www.cato.org/publications/commentary/911-its-legacy-fear and in the DC Examiner on September 10, 2012.

Today marks the 11th anniversary of the Sept. 11th terrorist attacks. What, if anything, have we learned? In a Saturday statement, President Obama struck an upbeat note: "The legacy of 9/11," he said, is "the ability to say with confidence that no adversary and no act of terrorism can change who we are."

Who's he kidding? For us ordinary schlubs who don't own our own planes, a trip to the airport provides less reason for optimism. We shuffle shoeless through the security line, at the end of which government agents will either grope us or look at us naked. And despite his campaign trail promises to "set an example for the world that the law is not subject to the whims of stubborn rulers," Obama has forged an expanded "Terror Presidency," with dangerous new powers for all future presidents to wield.

Sept. 11th has changed America radically — and not for the better.

As security analysts John Mueller (a Cato senior fellow) and Mark G. Stewart point out in an important new article in International Security, it's far from clear that any of this was necessary. Though the FBI initially insisted America was riddled with up to 5,000 trained Al Qaeda operatives, an internal agency memorandum, leaked in 2005, admitted that "To date, we have not identified any true 'sleeper' agents in the US." At a certain point, Mueller and Stewart suggest, the absence of evidence becomes evidence of absence.
Last Thanksgiving, the Department of Homeland Security earned a lot of Twitter snark for its video warning Americans of the dangers of deep-frying turkeys. But turkey fryers kill about five Americans a year; jihadists have killed about 16 here since 9/11.
"In the eleven years since the September 11 attacks, no terrorist has been able to detonate even a primitive bomb in the United States," Mueller and Stewart note.
If you're having trouble with pipe bombs, Weapons of Mass Destruction are almost certainly beyond your competence. Though, as the authors explain, erstwhile "enemy combatant" Jose Padilla once planned a domestic nuclear attack: "His idea about isotope separation was to put uranium into a pail and then to make himself into a human centrifuge by swinging the pail around in great arcs."
Mueller and Stewart quote anthropologist Scott Atran: "Perhaps never in the history of human conflict have so few people with so few actual means and capabilities frightened so many." And we have erected monuments to that fear — vast bureaucratic pyramids erected in Al Qaeda's honor.
In their 2011 book, "Top Secret America: The Rise of the New American Security State,"Washington Post reporters Dana Priest and William M. Arkin chronicle the growth of the post-9/11 "Intelligence-Industrial Complex": 1,200 agencies occupying three Pentagons' worth of office space. We've spent "hundreds of billions of dollars to turn the machine of government over to defeating terrorism," without seriously examining what we're buying with our money and lost liberty.
Meanwhile, 2008's promises to bring our National Surveillance State under the rule of law have vanished from the 2012 Democratic platform. In the middle of a fiscal crisis, Congress and President Obama have been subsidizing dystopia — using Homeland Security grants to fund the proliferation of surveillance cameras, drones and military ordnance for small-town police departments.
To commemorate the 10th anniversary of 9/11 last year, the conservative Heritage Foundation settled on a theme: "Never Quit." In the accompanying video, Heritage warned that "our continued security is anything but certain ... withholding crucial resources and needlessly slashing defense" would dishonor those who died in the attacks. "We must never forget, and we must never quit."
Say what you will about Barack Obama — he's no quitter.

Cato: Eleven Years after 9/11, Terror Effects Persist

Posted by John Mueller at http://www.cato-at-liberty.org/eleven-years-after-911-terror-effects-persist/

A couple of years ago, Cato published a book, Terrorizing Ourselves, that critically examined American counterterrorism efforts.

Since that time, the United States was able to put Osama bin Laden to rest. But even this dramatic and yearned-for development, already the stuff of fable, hasn’t been able to temper the level of self-terrorization in the American public.

I’ve been sorting through poll data about terrorism from 9/11 to the present day. Although there are some temporary bumps and wiggles in reaction to events during the course of those 11 years, there has been very little, if any, decline in the degree to which Americans express anxiety about terrorism.

That is, for the most part there has been little change since late 2001 in the numbers who say they are worried that they will become a victim of terrorism, consider another major attack in the near future to be likely, are willing to trade civil liberties for security, have confidence in the government’s ability to prevent or to protect them from further terrorism, or think the United States is winning in the war on terrorism.

I have written a fuller account here in Sunday’s Philadelphia Inquirer. And there are some more extensive ruminations on what I call the “terrorism delusion” in the current International Security. That article deals with the exaggerations of the threat presented by terrorism and with the distortions of perspective these exaggerations have inspired—distortions that have in turn inspired a determined and expensive quest to ferret out, and even to create, the nearly nonexistent. It also supplies a quantitative assessment of the costs of the terrorism delusion.

Several of the poll trends I use for my conclusions are posted here.

As the Inquirer piece points out, the lack of change is quite remarkable given that no Islamist terrorist has been able to detonate even the simplest of bombs in the United States, there has been no sizable attack in the country, bin Laden is dead, alarmist hype coming out of Washington has declined (though Harvard continues to give it the old college try), and an American’s chance of being killed by a terrorist is about one in 3.5 million per year.

I conclude in the Inquirer piece that it seems to suggest that the public is

likely to continue uncritically to support extravagant counterterrorism expenditures including incessant security checks, civil liberties intrusions, expanded police powers, harassment at airports, and militarized forays overseas if they can convincingly be associated with the quest to stamp out terrorism.

Both pieces use a quote from anthropologist Scott Atran: “Perhaps never in the history of human conflict have so few people with so few actual means and capabilities frightened so many.” Much of that fright, it appears, has proven to be perpetual.

Cato: What 9/11 Should Teach Us

Posted by Malou Innocent at http://www.cato-at-liberty.org/what-911-should-teach-us/

As a fan of comedian Dennis Miller, I was astonished to discover that he became a supporter of U.S. government policies in fighting terrorism after the September 11th attacks. Perhaps I am in the minority on this issue, but the 9/11 attacks were what helped to erode my faith in government.

Few people bring this up, but in 2004, a CIA Inspector General report found a number of weaknesses in the Intelligence Community’s pre-9/11 counterterrorism practices, many of which “contributed to performance lapses related to the handling of materials concerning individuals who were to become the 9/11 hijackers.” Two al Qaeda terrorists who later became 9/11 hijackers, Nawaf al-Hazmi and Khalid al-Mihdhar, had attended a meeting of suspected terrorists in Malaysia in early 2000. The Inspector General probe uncovered that the CIA had learned that one of the operatives had a U.S. visa, and the other had flown from Bangkok to Los Angeles.

Yet, the Agency failed to forward that relevant information by “entering the names of suspected al-Qa’ida terrorists on the ‘watchlist’ of the Department of State and providing information to the Federal Bureau of Investigation (FBI) in proper channels.” Some 50 to 60 individuals—including Headquarters personnel, overseas officers, managers, and junior employees—had read the cables containing the travel information on al-Hazmi and al-Mihdhar.

The report said in a stark assessment, “The consequences of the failures to share information and perform proper operational follow-through on these terrorists were potentially significant.” Indeed. Had the names been passed to the FBI and the State Department through proper channels, the operatives could have been watchlisted and surveilled. In theory, those steps could have yielded information on financing, flight training, and other details vital to unraveling the 9/11 plot.

Corroborating these findings was a Joint Inquiry Report by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. It found “persistent problems” with the “lack of collaboration between Intelligence Community agencies.” About the FBI in particular, the report went so far as to say as late as December 2002 that “…the Bureau–-as a law enforcement organization–-is fundamentally incapable, in its present form, of providing Americans with the security they require against foreign terrorist and intelligence threats.” Now that is a ringing endorsement of our government’s ability to protect us.

We often hear that the failure of 9/11 was government-wide. But few observers delve into why it failed, especially on 9/11 anniversaries, when, one would think, such explanations would be most helpful. A number of structural factors impede effective collaboration. For instance, many intelligence agencies operate under different legal authorities. Many of them have distinct customers and cultures, and jealously guard their turf, budgets, sources, and methods. Individuals within various agencies also share information by relying on trust and personal relationships.

Yet, dispersed knowledge made it so that there was no single person or “silver bullet” that could have enabled intelligence agencies to prevent the 9/11 attacks. As the CIA Inspector General report made clear, neither the U.S. government nor the Intelligence Community had a comprehensive strategic plan to guide counterterrorism efforts. Amid the pre-9/11 flurry ofwarnings, intelligence cables, and briefing materials on al Qaeda’s plot to hijack airliners and ram them into our buildings, a significant failure, concluded the 9/11 Commission, was one ofimagination.

After 9/11, many Americans were quick to cede yet more power to government. While much has changed in eleven years, with agencies less reluctant to share critical data, a February 2011 Government Accountability Office report noted that the government “does not yet have a fully-functioning Information Sharing Environment,” that is, “an approach that facilitates the sharing of terrorism and homeland security information”:

GAO found that the government had begun to implement some initiatives that improved sharing but did not yet have a comprehensive approach that was guided by an overall plan and measures to help gauge progress and achieve desired results.

Over the decade, while our government focused narrowly on the problem of terrorism, it also embraced ambitious, wasteful, and counterproductive programs and policies that drained us economically and spread our resources thin. After 9/11, excluding the invasions and occupations of Iraq and Afghanistan, American taxpayers have shelled out over $1 trillion dollars for their sprawling counterterrorism-industrial-complex, replete with its thousands of federal, state, and local government organizations and the private companies that work with them.

Perhaps it is unsurprising that our government expanded after an attack that called into question its primary constitutional function: protecting our country. What is more remarkable is that the public continues to accept humiliating pat-downs and invasive full-body scans for airline travel, costly grant programs rolled out by the Department of Homeland Security, and reckless politicians who advocate endless wars against predominately-Muslim states that play directly into al Qaeda’s hands.

Now, many Americans ask: Are we safer? Certainly, but marginal increases in safety have come at an exceptionally high cost, have far exceeded the point of diminished returns, and have encouraged a terrorized public to exalt a government that failed them.

Remember Remember

Remember, remember that day in September
Radical attack and plot
I see no reason why the death without reason
should ever be forgot

Religion was taken
twisted and bent
And formed into a hammer
of hate

Peace and love
were shoved aside
A martyrs death
there would be

The planes were boarded
taken and flown
The towers came crashing
down

A people stood tall
connected in sorrow
The whole world
stood still

That sorrow was taken
forged to revenge
The war was now
begun

A country was taken
and then another
But no peace
would there be

Everything sliding
out of control
The world seems
to be ending

Twenty survived
thousands died
But no end is yet
in sight

What should we do
I frankly don't know
But the least we can do
is remember

Cato: Ryan and the Janesville Plant: the Fact that Matters

Posted by Tad DeHaven at http://www.cato-at-liberty.org/ryan-and-the-janesville-plant-the-fact-that-matters/

The latest conflagration over the media’s attempt to “fact-check” campaigning politicians centers on comments Paul Ryan made in his speech last night about a shuttered GM plant in his hometown of Janesville, Wisconsin:

President Barack Obama came to office during an economic crisis, as he has reminded us a time or two.  Those were very tough days, and any fair measure of his record has to take that into account.  My home state voted for President Obama. When he talked about change, many people liked the sound of it, especially in Janesville, where we were about to lose a major factory.

A lot of guys I went to high school with worked at that GM plant. Right there at that plant, candidate Obama said: “I believe that if our government is there to support you … this plant will be here for another hundred years.” That’s what he said in 2008.

Well, as it turned out, that plant didn’t last another year.  It is locked up and empty to this day.  And that’s how it is in so many towns today, where the recovery that was promised is nowhere in sight.

A number of “fact checkers” cried foul. The left was pleased. The right was not pleased and has been crying foul on the left and the fact checkers. If you’re unfamiliar with the claims and counter-claims, you can Google the controversy if you’d like because I’m not going bother hyperlinking to all the back-and-forth.

I’m not going to bother because lost in all the predictable haggling between the left and the right over veracity of Ryan’s claim is the fact that really matters: Paul Ryan voted for the federal government’s bailout of the auto industry. In fact, he was 1 of only 32 Republicans to do so.

But it gets worse. Following his comments on the Janesville plant, here’s what Ryan had to say about the president’s failed stimulus package:

The first troubling sign came with the stimulus. It was President Obama’s first and best shot at fixing the economy, at a time when he got everything he wanted under one-party rule. It cost $831 billion – the largest one-time expenditure ever by our federal government.

It went to companies like Solyndra, with their gold-plated connections, subsidized jobs, and make-believe markets. The stimulus was a case of political patronage, corporate welfare, and cronyism at their worst. You, the working men and women of this country, were cut out of the deal.

If you replace “Solyndra” with “General Motors” the story is essentially the same: “a case of political patronage, corporate welfare, and cronyism.” The only real difference that I can see is that Solyndra didn’t have a plant in Ryan’s backyard.

Cato: Liberating the Liberal Arts—and Making Higher Education Affordable

Posted by Andrew J. Coulson at http://www.cato-at-liberty.org/liberating-the-liberal-arts-and-making-higher-education-affordable/

If you wanted a liberal arts education in 1499, you were probably out of luck. But, if you happened to be a 0.01 percenter, you might have been able to saddle up the horse and ride to Oxford or Cambridge. Because that’s where the books were. Books didn’t generally come to you, you had to go to them.

Today, every one of us has more works of art, philosophy, literature, and history at our fingertips than existed, worldwide, half-a-millennium ago. We can call them up, free or for a nominal charge, on electronic gadgets that cost little to own and operate. Despite that fact, we’re still captives to the idea that a liberal arts education must be dispensed by colleges and must be acquired between the ages of 19 and 22.

But the liberal arts can be studied without granite buildings, frat houses, or sports venues. Discussions about great works of literature can be held just as easily in coffee shops as in stadium-riser classrooms—perhaps more easily. Nor is there any reason to believe that there is some great advantage to concentrating the study of those works in the few years immediately after high school—or that our study of them must engage us full-time. The traditional association of liberal arts education and four-year colleges was already becoming an anachronism before the rise of the World Wide Web. It is now a crumbling fossil.

Handing colleges tens of thousands of dollars—worse yet, hundreds of thousands—for an education that can be obtained independently at little cost, would be tragically wasteful even if the college education were effective. In many cases, it is not. Research by Richard Arum and Josipa Roksareveals that almost half of all college students make no significant gains in critical thinking, complex reasoning, or written communication after two full years of study. Those are skills that any liberal arts education should cultivate. Even among the subset of students who linger for four years at college, fully one-third make no significant gains in those areas.

And yet, instead of recognizing the incredible democratization of access to the liberal arts that modern technology has permitted, and the consequent moribundity of this role of colleges, public policy remains mired in a medieval conception of higher education. Politicians compete to promise what they think young people want to hear: more and larger subsidies for college fees. Even if perpetuating a 15th century approach to higher education were in students’ interests—which it clearly is not—increased government subsidies for college tuition would not achieve that goal. We have tripled student aid in real, inflation-adjusted dollars since 1980, to roughly $14,000 per student, and yet student debt recently hit an all-time high of roughly $1 trillion. And barely half of students at four-year public colleges even complete their studies in six years. Aid to colleges is good for colleges, but it is an outlandish waste of resources if the goal is to improve the educational options available to young people.

These same realities apply, to an only slightly lesser extent, to the sciences and engineering. In those areas, colleges sometimes have equipment and facilities of instructional value that students could not independently afford. But even in the sciences and engineering, such cases are limited. It is perfectly feasible for an avid computer geek to learn everything he or she needs to know to work in software engineering by doing individual and group projects with inexpensive consumer hardware and software. This was even possible before the rise of the Web. My first direct supervisor at Microsoft was a brilliant software architect hired right out of high school… in the 1980s.

Though most politicians have been slow on the uptake, the public seems increasingly aware of all this. A Pew Research survey finds that 57 percent Americans no longer think college is worth the money. So why are they still sending their kids there? Habit is no doubt part of the picture, but so is signaling. People realize that colleges are instructionally inefficient, but being accepted to and graduating from an academically selective one signals ability and assiduity to potential employers.

So what’s the solution? Alternative signaling options and better hiring practices would be a good start. Anyone who studies hard for the SAT, ACT, GRE, or the like, and scores well, can send the academic ability signal. But in the end, employers want more than academic ability. What they really want are subject area expertise, a good work ethic, an ability to work smoothly with a variety of people, and, for management, leadership ability. Any institution that develops good metrics for these attributes, and issues certifications accordingly, will provide an incredibly valuable service for employers. Students would then be free to study independently, occasionally paying for instruction where necessary, and then seek a certification signaling what they’ve learned. In the meantime, job candidates can create a portfolio of work on the Web showing what they know and can do (a“savoir faire”)—which would be more useful to employers than most resumes.

What is certainly not useful is raising taxes still further in a time of economic difficulty in order to pad the budgets of colleges and encourage students to take on yet more college debt.

Cato: The Decision Is Whether We Will Reform Health Care with Our Eyes Open

Posted by Michael F. Cannon at http://www.cato-at-liberty.org/the-decision-is-whether-we-will-reform-health-care-with-our-eyes-open/

Donald Berwick may have mastered the science of health care management and delivery. (I for one would jump at the chance to enroll my family in the Berwick Health Plan.) But his recentoped in the Washington Post shows he has yet to absorb the lessons that economics teaches about government planning of the economy, such as through ObamaCare.

Berwick, whom President Obama recess-appointed to be administrator of the Centers for Medicare & Medicaid Services (CMS), sets out to defend ObamaCare from a fairly devastatingcritique by Robert Samuelson a few days earlier. Berwick responds, in essence, nuh-uh:

I saw how this law is helping tens of millions of families and is finally putting our health-care system on the right track…I have seen how improving care can reduce costs dramatically.

Berwick fails to see the world of difference between those two statements. Yes, in his private-sector work, Berwick has helped hospitals save more lives, kill fewer people, and save money in the process. I’m pretty sure he has saved more lives than I ever will.

But all he saw from his perch at Medicare’s helm was people happy to receive checks from the government, and a bunch of well-meaning bureaucrats setting goals. He did not see the costs imposed by those subsidies. As for goal-setting, this one sentence captures it all:

The CMS, for example, has set ambitious goals to reduce complications that, if met, would save 60,000 lives and $35 billion in just three years.

If. Met. A recent Congressional Budget Office review of Medicare pilot programs showed that Medicare bureaucrats set goals all the time. They never achieve them.

Berwick’s claim that ObamaCare “cracks down hard on waste and fraud” because “Last year the government recaptured a record $4 billion” is even more ridiculous. The official (read: low-ball) estimates are that CMS loses $70 billion per year to fraud and improper payments. Thebest evidence suggests that wasteful spending approaches $200 billion per year in Medicare alone. All that money that comes from you, John Q. Taxpayer. Berwick knows all these things. Yet he thinks you should be impressed that recovering a measly $4 billion is the best the government has ever done.

Berwick would never tolerate such willful blindness, shoddy reasoning, and (surprise!) poor results if it were his own money on the line. Which is exactly the point. In a free market, people spend their own money. At Medicare, Berwick spent, and ObamaCare continues to spend, other people’s money.

That is the main reason why markets are smart and government is stupid. And why otherwise smart people like Berwick can afford to keep their eyes shut.

Cato: Correcting a Massive Typo by USA Today

Posted by Daniel J. Mitchell at http://www.cato-at-liberty.org/correcting-a-massive-typo-by-usa-today/

Although this line is attributed to many people, Wikiquote says that Gideon Tucker was the first to warn us that “No man’s life, liberty, or property are safe while the legislature is in session.”

This cartoon about Keynesian economics sort of makes the same point, but not with the same eloquence.

But that’s not the point of this post. Instead, I want to focus on this grossly misleading headline in USA Today: “This Congress could be least productive since 1947.”

I don’t think it’s a case of media bias or inaccuracy, as we saw with the AP story on poverty, the Brian Ross Tea Party slur, or theReuters report on job creation and so-called stimulus.

But it does blindly assume that it is productive to impose more laws. Was it productive to enact Obamacare? What about the faux stimulus? Or the Dodd-Frank bailout bill?

Wouldn’t the headline be more accurate if it read, “This Congress could be least destructive since 1947″?

Here are the relevant parts of the USA Today report.

Congress is on pace to make history with the least productive legislative year in the post World War II era. Just 61 bills have become law to date in 2012 out of 3,914 bills that have been introduced by lawmakers, or less than 2% of all proposed laws, according to a USA TODAY analysis of records since 1947 kept by the U.S. House Clerk’s office. In 2011, after Republicans took control of the U.S. House, Congress passed just 90 bills into law. The only other year in which Congress failed to pass at least 125 laws was 1995. …When Democrats controlled both chambers during the 111th Congress, 258 laws were enacted in 2010 and 125 in 2009, including President Obama’s health care law.

To be sure, not all legislation is bad. Now that the Supreme Court has failed in its job, Congress would have to enact a law to repeal Obamacare. Laws also would need to be changed to reform entitlements, or adopt a flat tax.

And some laws are benign, such as the enactment of Dairy Goat Awareness Week or naming a federal courthouse.

But I’m guessing that the vast majority of substantive laws are bad for freedom and result in less prosperity.

So let’s cross our fingers that future Congresses are even less productive (and therefore less destructive) than the current one.

Cato: Uruguay Aims to Legalize Marijuana: The Good, The Bad and The Ugly

Posted by Juan Carlos Hidalgo at http://www.cato-at-liberty.org/uruguay-aims-to-legalize-marijuana-the-good-the-bad-and-the-ugly/

The good: José Mujica, Uruguay’s president, announced that he will send a bill to Congress to legalize the production and sale of marijuana. Consumption was already decriminalized in the South American nation. If the bill is approved, and it seems to have enough support in Congress to pass, Uruguay would become the first country to fully legalize marijuana.

The bad: The bill stipulates that the government will be in charge of the production and sale of marijuana. Even though having a marijuana state-owned monopoly is better than prohibition, it would be far better to have the private sector run the business under an appropriate tax and regulatory regime. Governments should not be involved in the drug business.

The ugly: Marijuana users who want to legally purchase the drug would have to register with the government. Moreover, they would be limited in the number of cigarettes they can buy per month. However, there are good reasons to believe that not many people will rush to a government agency to register as a marijuana user. And imposing a limit on the amount of joints that a person can buy legally just means that any extra consumption will by provided by illegal sources. Thus, I doubt that in practice the bill will be very effective at achieving its goals of getting rid of the black market and fighting street crime.

Cato: Skinning the Fourth Amendment: The Sixth Circuit’s Awful GPS Tracking Decision

Posted by Julian Sanchez at http://www.cato-at-liberty.org/skinning-the-fourth-amendment-the-sixth-circuits-awful-gps-tracking-decision/

In the summer of 2006, agents of the Drug Enforcement Agency used GPS tracking technology to locate drug courier Melvin Skinner’s prepaid phone, ultimately seizing more than 1,000 pounds of marijuana from Skinner’s mobile home. The judges on the Court of Appeals for the Sixth Circuit then apparently smoked all of it before issuing their ruling in United States v. Skinner this week, because the opinion approving DEA’s use of GPS technology in this case is easily one of the most muddled examples of legal reasoning I’ve ever encountered—a surreal potpourri of factual misunderstandings, inapt analogies, sloppy and selective appeals to precedent, and logical leaps worthy of Nijinsky.

A very brief summary of the case: DEA was already investigating a drug trafficking organization, and through the use of lawful wiretaps learned that a courier code-named “Big Foot” would be driving a large shipment of marijuana from Tucson, Arizona to Mooresburg, Tennessee in his mobile home. “Big Foot” was using a prepaid (or “burner”) mobile phone purchased for him by his co-conspirators, which meant one thing DEA didn’t know was Big Foot’s identity, because the prepaid phone wasn’t registered in his name. (While this makes them appealing to drug dealers, they’re also very popular with ordinary, law-abiding citizens: Prepaid phones now account for 25 percent of mobile phone subscriptions.) Agents then obtained a court order—but not a search warrant based on probable cause—to “ping” the phone’s GPS chip and precisely track its location in realtime. Tracing it to a truck stop near Abilene, Texas, authorities brought drug dogs to sniff the perimeter of the mobile home, and when the dogs alerted to the presence of drugs, performed a search—finding the drugs, and arresting Skinner, now revealed as “Big Foot.”

The Sixth Circuit’s Fourth Amendment analysis is disturbing right from the outset. “If a tool used to transport contraband gives off a signal that can be tracked for location,” the argument begins, “certainly the police can track that signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools.”  This is bizarre and circular: It suggests that criminals categorically lack Fourth Amendment privacy interests in any “tool” they use to conduct criminal activity, in which case no search would violate the Fourth Amendment if it actually turned up evidence of criminal conduct. But the whole point of requiring a warrant is to let a neutral magistrate determine whether there’s probable cause to believe such conduct will be uncovered. The court hastily acknowledges this in a footnote, clarifying that there’s no expectation of privacy for anyone in cell phone GPS data, but beginning in this way suggests the court is reasoning backwards to a desired conclusion, based on Skinner’s now-established guilt.

The court proceeds through a series of lazy and underdeveloped analogies:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

Finally, the judges move on from these dubious analogies and cite an actual precedent: United States v. Knotts. In Knotts, police had placed a relatively short range tracking “beeper” in a can of chloroform sold to suspected drug manufacturers. Having monitored the sale of the canister, police followed the car in which the suspects had placed it, using the beeper to supplement their visual observation of the car’s public journey, and ultimately relying on it to recover the trail when they lost the suspects. The Supreme Court held that no Fourth Amendment  expectation of privacy had been violated, because the location of the car police had been tailing was information exposed to any observer on the road. Here too, the court reasoned, Skinner’s RV was moving along public roads visible to any member of the public.

Unfortunately, this falls apart as soon as you begin thinking about it for a moment. The information that is exposed to the general public, in all these cases, is that a car with a particular external appearance is at such-and-such location at such-and-such a time. Having already observed their lojacked canister being loaded into the suspect’s car, that was the very information the police needed to maintain their tail.

Skinner presents a very different situation. It’s true that any member of the public could observe that Skinner’s RV was one of probably hundreds traveling on public highways in mid July of 2006. But that was not the information investigators relied upon here: What the GPS tracking here revealed was the non-publicly observable fact that one particular mobile home, which police had never encountered before, contained a particular phone believed to be in close proximity to illegal drugs. These are importantly different facts. The Secret Service even relies on that difference to help protect the life and safety of the president: Anyone can observe dozens of limos or SUVs with tinted windows leaving the White House on public roads each day, but which of these contain the president is not so exposed. Because the salient fact for the purposes of the police investigation was not the location of a particular vehicle on public streets, but rather the location of a particular personal effect in a private mobile home, the relevant precedent isn’t Knotts, but rather United States v. Karo. The government might then argue that the contents of a mobile home aren’t entitled to the same high level of protection as the contents of the residence at issue in Karo, but having incorrectly framed the issue, the Sixth Circuit panel never takes up that question.

The court does at least gesture in the direction of the idea that it might somehow matter that police didn’t initially know the identity of “Big Foot,” and had not previously observed his vehicle. They deem this immaterial with a truly breathtaking bit of hand-waving:

As for not knowing his identity, this is irrelevant because the agents knew the identity of Skinner’s co-conspirators and could have simply monitored their whereabouts to discover Skinner’s identity. Using a more efficient means of discovering this information does not amount to a Fourth Amendment violation.

It is, I think, an open question what police could or could not have discovered in a parallel universe where they employed a completely different set of investigative methods (as opposed to the physical tail actually employed in Knotts and supplemented by a beeper), but it’s not clear why this is really germane. That a postal letter might have been retrieved from the trash of a suspect who never shreds his correspondence does not make it any less an illegal search to intercept the unopened letter. Remarkably, the court does not deign to even mention the 2001 Supreme Court case Kyllo v. United States, which contemplated and rejected a similar argument. Writing for the majority, Justice Scalia explained that the use of thermal imaging to detect marijuana growing lights in a garage was not immunized from Fourth Amendment scrutiny by the fact that other permissible means might have revealed facts about the temperature of a home:

The dissent’s comparison of the thermal imaging to various circumstances in which outside observers might be able to perceive, without technology, the heat of the home–for example, by observing snow melt on the roof [...]–is quite irrelevant. The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to find out the same information lawful.

That argument seems to present at least a potential problem for the court’s reasoning here, and seems more generally relevant insofar as it concerns the use of technology to gain information about the contents of a home, but again, Kyllo is not even mentioned.

Since this is a case involving phones, the Sixth Circuit also takes a stab at breezily invokingSmith v. Maryland—the basis for the much-criticized “third party doctrine”—where a suspect was held to lack an expectation of privacy in dialed phone numbers that had been voluntary exposed to the phone company, which routinely retained that information in its ordinary business records for billing purposes. Without much analysis the court asserts that “[s]imilar reasoning compels” a parallel conclusion here.

But on closer examination, the fact that both cases involve phones is about as far as the similarities go. Dialed numbers are information actively and consciously exposed to the phone company by the user, and then retained in billing records as a matter of course, independently of any government investigations. Unfortunately, as both Orin Kerr and Jennifer Granick note, the court seems fuzzy on the very different characteristics of the GPS technology used here. The GPS chip contained in the phone—which apparently the suspects were unaware of—would not normally transmit any information to the phone company at all. Rather, the chip would have calculated its precise location coordinates and transmitted them to the company only in response to a “ping” initiated by law enforcement. To be sure, the company might be physically capable of sending such a ping on its own, just as it would be physically capable of intercepting the contents of a phone call. And if it had built the phone with a secret capability to be remotely activated as a microphone, it would also be physically capable of remotely gathering information about the user’s activities in that way as well. Fortunately, the Fourth Amendment is not limited to pointlessly prohibiting only physically impossible surveillance.  The technological capabilities of the phone company or the government do not determine what has been “knowingly exposed”—and it seems clear here that Skinner did not knowingly expose, to either the general public or the phone company, the precise GPS coordinates of his phone.

The Fourth Amendment status of the kind of GPS tracking employed here is hardly a slam dunk either way: There are strong arguments on both sides, and the issues involved are complex. Alas, this opinion doesn’t even begin to address them adequately.

Cato: Major Victory for Workers’ Rights

Posted by Ilya Shapiro at http://www.cato-at-liberty.org/major-victory-for-workers-rights/

Today’s Supreme Court decision in Knox v. SEIU is a major victory for individual liberties and workers’ right not to be coerced by government or unions. Those workers who choose not to join unions should not be forced to fund the unions’ political activities. The Court’s decision for the worker to opt-in to paycheck deductions for political activities rather than opt-out of these payments restores the proper protection for the individual’s freedom of speech and conscience. Justice Alito wrote for the majority, “Courts do not presume acquiescence in the loss of fundamental rights.”

Cato: Canadian Wheat Board Loses Monopoly Powers

Posted by Walter Olson at http://www.cato-at-liberty.org/canadian-wheat-board-loses-monopoly-powers/

Reform has finally caught up with one of North America’s longest-entrenched socialist institutions, the Canadian Wheat Board. From the 1940s down through the first of this month, farmers in western Canada were legally forbidden to sell their wheat and barley other than through the official board, which by abolishing competition between farmers was supposed to assure fairer and higher prices. (Technically the Board enjoyed a “monopsony,” which is what economists call a monopoly over buying something as distinct from selling it.) Farmers have complained for years that the board not only behaved arbitrarily and was hard to deal with but also that it often paid less for grain than farmers in nearby American states like North Dakota were getting. The board continues to exist, but stripped of its compulsory powers it will need to persuade growers to trade with it voluntarily. Economist David Henderson, who lived in a Manitoba farm community as a kid, has more.

The battle to free the farmers was long and fierce — the left-leaning New Democratic Party (NDP) and National Farmers Union greeted the August 1 decontrol with undisguised bitterness— and no one played a more central role in the victory, or put more political capital on the line, than Canadian Prime Minister Stephen Harper. Per the CBC,

Harper has a long history of supporting the farmers who fought the wheat board. In 2001, he wrote a review of a book on that battle, calling the wheat board an “oppressive monopoly” that used “legal bullying” against farmers.

Harper and Agriculture Minister Gerry Ritz were at the farm to mark the first official day in which prairie wheat and barley farmers can sell their products to whomever they choose.

Harper is also pardoning a group of farmers arrested under the old law. Last fall, I had the chance to meet Saskatchewan Premier Brad Wall, another key backer of the reform, and a couple of his aides at a free- market gathering out West. When he heard I was with the Cato Institute, Wall said he’d long been a warm admirer of the Institute’s work. With good ideas as with other good things: “first the blade, then the ear, then the full grain in the ear.”

Cato: We’re Not Censoring YOU—Just Your Computer!

Posted by Julian Sanchez at http://www.cato-at-liberty.org/were-not-censoring-you-just-your-computer/

Consider an argument for denying First Amendment protection to movies and video games. Human beings, we all agree, have constitutional rights—but mere machines do not. When the computer in your game console or DVD player “decides” to display certain images on a screen, therefore, this is not protected speech, but merely the output of a mechanical process that legislatures may regulate without any special restrictions. All those court rulings that have found these media to be protected forms of expression, therefore, are confused efforts to imbue computers with constitutional rights—surely foreshadowing the ominous rise of Skynet.

Probably nobody finds this argument very convincing, and it hardly takes a legal scholar to see what’s wrong with it: Computers don’t really autonomously “decide” anything: They execute algorithms that embody decisions made by their human programmers. (If, one day, we develop advanced Artificial Intelligences that really are effectively autonomous speakers, their constitutional status will be a fascinating and difficult question). Movies and video games are made by teams of human beings, whose expressive choices are merely executed and transmitted by computers. You can’t somehow “just” regulate the computer without effectively restricting human expression at the same time. Simple, obvious.

Yet writing in The New York Times, legal scholar Tim Wu makes a surprisingly similar argument with respect to search engines and various kinds of data sharing on social networking sites or online marketplaces. Wu is implicitly responding to those like Eugene Volokh, who claim that the First Amendment does indeed constrain legislatures who might seek to regulate these activities for the sake of privacy or informational “fairness.” Is there any way to distinguish Wu’s argument from my imagined, clearly invalid one? Wu hints at one:

The line can be easily drawn: as a general rule, nonhuman or automated choices should not be granted the full protection of the First Amendment, and often should not be considered “speech” at all. (Where a human does make a specific choice about specific content, the question is different.)

This doesn’t seem all that easy to me, however. In many video games, the exact progression of any particular play-through will often be partly (and in some cases substantially) randomized. In performances of “aleatoric music,” perhaps most famously associated with the avant garde composer John Cage, a human artist provides an algorithmic structure that leaves the “specific content” of the piece to be determined by chance—whether provided by a computer or some other pseudorandom mechanism—and therefore varying in each performance. All compositions, for that matter, are essentially “algorithms” whose specific character as a heard expression, will be determined by a performer, whether human or machine. And do we really think a blog that rounded up links and produced summaries of important news stories about privacy or human rights could be unceremoniously shut down if it were assembled and published by a scraping algorithm rather than active human curation? What degree of human intervention in the running of an aggregation algorithm would transform it into protected speech? Would it be enough to manually delete irrelevant links incorrectly harvested by the algorithm, or tweak poorly-worded summaries, before each post went live? Must the programmer be careful not to make her algorithm too good, lest she render such intervention unnecessary and surrender First Amendment protection?

If Wu’s argument seems in any way plausible, it’s because his computer/human distinction is not actually doing any of the heavy lifting in his piece. When he writes that various kinds of information manipulation are “only indirectly related to the purposes of the First Amendment,” the force of the argument depends entirely on how far we agree with that normative judgment about those classes of information processing, not the means by which they’re accomplished. It’s clear that Wu—in contrast to Volokh—believes that the commercial sale of databases of personal information is not “speech” in the sense intended by the First Amendment. Would he really feel any differently if those databases were compiled and transmitted by hand, rather than electronically? Or, turning to the search context, would it really matter if the task of recommending a list of Web sites deemed relevant to a topic (or especially family-friendly, or whatever other feature a company might be advertising) were carried out by humans in a data center in Bangalore, rigorously following a list of criteria developed by some different group of human analysts, and encouraging them to recommend partners and paid advertisers over their competitors whenever possible? Again, of course not. The real argument—everything Wu says that has any persuasive force to it—depends on the character of the activity in question, not its implementation.

So why focus on the computer/human distinction at all? First, because courts are justifiably reluctant to declare whole classes of expressive conduct beyond the bounds of the First Amendment: The whole point of a presumption of free speech is to avoid having to make ad hoc determinations about the “social value” of various kinds of expression. Second, because the character-based arguments on their own, relying on a sharp distinction between commerce and speech that’s hard to draw in a blurry world, are all subject to strong counterarguments, and probably insufficient to overcome the presumption in favor of expression.

As a slogan, “Free speech for humans, not for computers” sounds pithy and appears to provide a bright-line standard that avoids the hard and messy questions involved in an analysis grounded in the nature of the speech (or, more neutrally, “information manipulation”) itself. But again, that distinction does no independent work in the argument. If Wu wants to make the case that certain categories of conduct involving information deserve diminished protection, whether directly executed by humans or indirectly with the aid of computer processors, he should do so. The attempt to shift the focus to a red-herring distinction between human and computer “expression” betrays a recognition that this case, stated clearly on its own terms, is a weak one.