Archive for May, 2010
Privacy as the Default Setting
Before I can write a blog post, I must lift my hands to type.
I say so because the default setting in life is privacy. Staying in bed maintains privacy pretty well.
Clay Shirky gives privacy a contrary treatment on the New York Times‘ Room for Debate blog. We are both discussants there of the question whether the government should intervene to solve privacy issues with Facebook.
Shirky, a teacher in the Interactive Telecommunications Program at N.Y.U., writes:
There are two principal effects of the Internet on privacy. The first is to shrink personal expression to a dichotomy: public or private. Prior to the rise of digital social life, much of what we said and did was in a public environment — on the street, in a park, at a party — but was not actually public, in the sense of being widely broadcast or persistently available.
This enormous swath of personal life, as we used to call it, existed on a spectrum between public and private, and the sheer inconvenience of collecting and collating theoretically observable but practically unobserved actions was enough to keep those actions out of the public sphere.
That spectrum has now collapsed — data is either public or private, and the idea of personal utterances being observable but unobserved is becoming as quaint as an ice cream social.
“[I]t is keeping things private that requires effort,” he writes.
I think Shirky has inadvertently overstated the effects of the Internet on privacy. The dynamics he describes are definitely in play, but they exist almost exclusively in digital social life. For the rest of life, it’s still the other way around. Privacy is easy. You can just stay in bed. Pursuing publicity takes effort.
When you go out into the world, making effort to give publicity to yourself in pursuit of your wants and needs, you must trade some personal information for interaction, yes. That’s physics: photons and sound waves doing what they do. Nobody considers this a privacy problem because of our long experience with it and acculturation to it.
The online environment has similar information demands—when you go online, giving publicity to yourself in pursuit of your wants and needs, you must trade some personal information for interaction—but it has different properties: information is easier to record. Again, though, the rise of the Internet didn’t change privacy on the street, in parks, and at parties, except in the still rare instance when someone is recording and uploading information.
If we were to conduct all of life online, maybe it would be fair to say that protecting privacy takes effort. But even as a digital denizen, the majority of my experience—certainly the most important and valuable of it—is offline, face-to-face interactions with friends and loved ones or time alone.
Here, privacy is the default. Nobody knows my thoughts unless I tell them. Almost never is anyone capturing the conversation in a digital format. Rarely is anyone uploading images. Facebook isn’t hoovering up the information. Doing these things would take effort that nobody is expending.
The Internet didn’t foreclose the use of real space for the conduct of life as Shirky implies by talking about offline living in the past tense. It expanded our freedom by giving us another space—a new option to use as we see fit. Declining to use that space is as normal, natural, and necessary as eating breakfast (which is impossible to do online, by the way). Maybe some of the digerati conduct their love-lives online, but this should be a disqualification for discussing the social impact of the medium for failure to understand how it fits into most people’s lives.
Privacy debates premised on the omnipresence of digital media are interesting and fun, but I don’t think they’re grounded in people’s actual experience of the world (exception!), and they tend to overstate the significance of online privacy problems.
Use Your Law Deferment to Work for Liberty!
For almost a year now, Cato has been running a highly successful deferred legal associate program. Talented recent law school grads have come to work for us during the time that their law firms have “deferred” their start dates (from a few months to a full year), with commensurate stipends. Now that we’re reaching the end of law school graduation season, I thought I’d put out another call for more such individuals. We can always use the the extra brain, you can always use Cato on your resume, and your firms can always use your getting substantive legal experience — we all win!
And so, the Cato Institute invites graduating (and recently graduated) law students and others facing firm deferrals — or simply a period of unemployment – to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review. Start/end dates are flexible and there are openings immediately available. Interested students and graduates should email a cover letter, resume, transcript, and writing sample, along with any specific details of their availability to Jonathan Blanks at jblanks@cato.org. Note again that this announcement is for a non-paying job: we’ll give you a workspace, good experience, and an entree into the DC policy world, but we will not help your financial bottom line. You don’t have to be a deferred law firm associate per se, but you do have to be able to afford not being paid by us.
Please feel free to pass the above information to your friends and colleagues.
For information on Cato’s programs for non-graduating students, contact Joey Coon at jcoon@cato.org.
Update on the Arizona Immigration Issue
Since I provided my legal analysis of the new Arizona immigration law, I’ve become aware of a few interesting developments in that regard.
First, it seems that I wasn’t working off the latest version of the bill — which I should add is awfully hard to find. Indeed, perhaps we should excuse Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano for not having read it; both the Arizona Senate’s website for SB 1070, and the Arizona House’s website for the amending legislation, HB 2162, list several different versions under their “Bill Versions” tabs that do not match the bills in the other. As someone who typically plays in the federal sandbox, if someone can direct me to a verified true copy of the final operative bill, as signed and amended, my colleagues and I – indeed the entire policy community – would be grateful.
In any case, I’m please to announce that the (seemingly) final amended version I’m now working from has improved an already constitutional bill by further safeguarding civil liberties. Most notably, the ”may I see your papers?” provision was changed to read that law enforcement officials shall make a “reasonable attempt . . . when practicable, to determine the immigration status” only after having made a “lawful stop, detention, or arrest . . . in the enforcement of any other law or ordinance . . . where suspicion exists that the [detained] person is an alien and is unlawfully present in the United States” (amended text in bold). This establishes a higher predicate standard for police to initiate contact with any person to whom this law will be applied. In other words, there has to be an independent reason for the stop or detention before the police can ask to see proof of immigration status.
The amended bill also prohibits any consideration of “race, color or national origin” in enforcing the new law in any manner that runs afoul of either the U.S. or Arizona constitutions. Moreover, the legislature clarified that the determination of an alien’s immigration status would only be performed by Immigration and Customs Enforcement (ICE), the Border Patrol, or a “law enforcement officer who is authorized [to do so] by the federal government.”
All of these changes unquestionably improved the civil rights provisions of the law and should further protect it from successful legal challenge — again without saying anything about the law’s policy wisdom.
Second, while some analysts have argued that Arizona’s law might be preempted by federal law — although the leading case, De Canas v. Bica, 424 U.S. 351, which is 34 years old and predates more recent immigration reforms, is not favorable to that position — Roger Pilon alerted me to a 2005 case (unanimous in the judgment, less so in the reasoning), Muehler v. Mena, 544 U.S. 93, that shows that Arizona’s law doesn’t go as far as the Constitution might allow. In Mena, the police detained the inhabitants of a house whice they were searching pursuant to a lawful search warrant. While most of the officers performed the search, others questioned one detainee about her immigration status without any reasonable suspicious that she committed any crime — and certainly without having any reasonable suspicion that she was an illegal alien. The Supreme Court, in an opinion by Chief Justice Rehnquist, upheld this line of questioning. Part of the reasoning was that the “may I see your papers?” bit did not prolong the detention in any way — the search was still ongoing — but this is at least some indication that the Constitution allows immigration-related questioning without even the reasonable suspicion required by Arizona.
Third, apparently the head of ICE, John Morton, said his agency will not process illegal immigrants referred to them by Arizona officials. Morton apparently doesn’t think that laws like Arizona’s “are the solution.” Well, we at Cato certainly agree that Arizona’s law will not solve a problem that demands a comprehensive federal solution, but that doesn’t mean federal officials can simply decline to perform their duties under the law as it exists. What Morton proposes is akin to state “nullification” of duly enacted federal law — except worse, because his agency’s job is to enforce that very law. If Morton feels that strongly about our immigration laws, he should either resign or, while complying with his duties, testify before Congress about the law’s defects and lobby his boss, President Obama, to push reform.
Fourth and finally, President Obama is deploying 1,200 National Guard troops to the border and requesting $500 million more for border security. With due respect to Arizona Senators John McCain and Jon Kyl, who want even more troops and money, this approach is neither here nor there. (And it echoes Obama’s split-the-baby decision on Afghanistan, not willing to go for a whole-hog escalation but also not willing to rethink the overall policy.) Half-measures won’t do it here, Mr. President (and Congress). If you lack the heart (or have too much of a brain) for a full wall-and-militarization of our southern border — and perhaps mass rounding up and deportation of 12 million people — it’s time for a fundamental reorganization of the immigration system.
U.S. immigration (non-)policy is nonsensical and unworkable. We’re beyond the point of perestroika; it’s time for regime change.
Libertarianism: A Primer Goes Global
I’m delighted to report that just this week I have received copies of Libertarianism: A Primer published in Italian and Korean, the latter delivered to me personally by the president of the Korea Economic Research Institute. I now count the following translations:
- Japanese
- Russian
- Czech
- Polish
- Serbian
- Bulgarian
- Cambodian
- Mongolian
- Kurdish
- Persian
- Spanish
- Korean
- Italian
- Chinese
and of course
You might notice a couple of things about that list. First, it includes a lot of communist or ex-communist countries, where perhaps they are especially attuned to the conflict between freedom and statism. And second, it has not yet been translated into of the languages of Northwest Europe — German, French, Dutch, Scandinavian languages. Perhaps those countries have achieved the end of history and have no need of further ideological debates. Perhaps. I wrote the following in the preface to the Italian edition:
The publication of a primer on libertarianism in Italy is another sign of two heartening developments: the continuing process of the world’s people being drawn closer together, and the worldwide spread of the ideas of peace and freedom after a century of war and statism.
This book may seem to be reaching Italy at an inopportune moment, a time when people from the president of France to Nobel Prize-winning economists are proclaiming that “laissez-faire is finished.” One American pundit of the center-left even exulted in “the end of libertarianism.” These critics are short-sighted. The idea of libertarianism, of liberty under law, is needed now more than ever….
Libertarianism is sometimes perceived as a radical philosophy. And in some ways it is: It rejects and has fought in turn absolutism, communism, fascism, national socialism, corporate statism, theocracy, and every form of tyranny over the mind of man. Libertarians advance a radical and consistent vision of individual rights and strictly limited government that would eliminate the great bulk of the modern state, even in mixed-economy democracies. But in a broader sense libertarianism is the fundamental philosophy of the modern world: liberty, equality, enterprise, the rule of law, constitutional government. These ideas have become so commonplace that we forget how radical they were at one time. Libertarians want to apply those principles more consistently than do the adherents of other ideologies. But few people in the modern world would want to reject libertarian ideas wholesale.
The largest trends in the world reflect libertarian values. Communism is virtually gone, and few people still defend state socialism. Eastern Europe is struggling to achieve societies based on property rights, markets, and the rule of law. Honest observers throughout the developed world understand that the middle-class welfare states are unsustainable and will have to be radically reformed. The information revolution is empowering individuals and small groups and undermining the authority of centralized power.
Perhaps most importantly, the increasing globalization of the world economy means that countries that want to prosper will have to adopt a decentralized, deregulated, market-oriented economic model. You can’t avoid world markets in the 21st century; or if you do, you will be left out of the phenomenal economic growth that global markets and technological development will deliver.
So one reason that Italian readers should be interested in libertarianism is very simple and practical: these are the ideas that drive the modern world, and you need to know about them. The other reason is that libertarianism offers to every country the promise of peace, economic growth, and social harmony. I hope Italian readers will join libertarians around the world in working to restrain state power and liberate individuals, families, associations, and enterprises.
Tuesday Links
- Cato Chairman Robert A. Levy on Rand Paul’s “principled stumble.”
- Daniel Griswold: Fears of immigrant crime are unfounded. “Perceptions about immigrants and crime do not square with the most basic data. After years of witnessing a rise in the number of illegal immigrants in their state, the people of Arizona are in reality less likely to be victims of crime than at any time in the past four decades.”
- Gene Healy on Obama’s continuation of the drug war: “The president lacks the moral authority to lock people up for behavior he engaged in as a young man.”
- Why China holds the key to maintaining peace in East Asia.
- Podcast: “Kagan and Speech” featuring John Samples.
Agency Will Stop Treating Political Speech as Fair-Housing Violation
The California Department of Fair Employment and Housing has agreed to stop investigating citizens on the theory that their political expression in and of itself constitutes a potential violation of laws against housing discrimination. The concession came in a settlement with Julie Waltz, whom it had dragged through an investigation for publicly opposing the placement of subsidized group homes in and near her Norco, Calif. residence. A news release from the Center for Individual Rights:
During the year-long investigation, state investigators told Waltz that her speech violated state fair housing laws, requested that she refrain from her speech activities, and threatened her with prosecution. An investigator also told her that the investigation would end if she removed signs from her yard objecting to the next-door group home as well as signs posted by other people in her neighborhood. Waltz declined to remove the signs. …
Waltz was represented by the Los Angeles, CA firm of Munger, Tolles & Olson LLP, which donated its time pro bono and the Center for Individual Rights.
When it comes to trampling the First Amendment, California fair housing officials are serial offenders: in 2000 and again in 2006, CIR says, the Ninth Circuit handed down rulings restraining them from similar practices.
The Economist: “Efforts to Challenge Obamacare Are Gaining Momentum”
From a recent news item in The Economist:
[M]illions of Americans…think that Barack Obama’s health-insurance laws must be overturned…[P]olls suggest that many Americans still dislike them…
At the federal level Republican leaders in Congress have jumped on every bit of negative news—for example, a recent report from the Congressional Budget Office suggesting that the reforms will cost more than originally forecast—as just cause for overturning them…
The real action is outside Washington, though. Virginia, Utah and Idaho have outlawed the new individual mandate, which will require everyone to purchase health cover, and other states are looking at similar measures. Elsewhere, opponents have taken to the ballot box. Missouri will hold a referendum in August on the matter. Perhaps half a dozen other states may see a constitutional amendment blocking Obamacare on the ballot in November.
Critics have also filed various lawsuits challenging the constitutionality of health reform. In the most prominent nearly two dozen states, almost all led by Republicans, have banded together. Their chief legal argument is that the new individual mandate is unconstitutional. On May 14th the National Federation of Independent Business, a trade group representing small companies (who worry especially about the costs of compliance with the new law), declared that it too would join in.
Repeal the bill.
Collin Peterson’s Cognitive Dissonance
House Agriculture Committee Chairman Collin Peterson (D, MN) is conducting a series of hearings in rural America to tout his support for big Ag listen to the people.
In the third paragraph of page 14 of an unofficial transcript of the recent hearings in Troy, Alabama, Mr. Peterson makes an excellent point about the fundamental inability of lawmakers or Washington bureaucrats to decide which farm size is best. “We are not going to get into the business of deciding how big a farm should be because that’s way beyond our expertise.” Mr Peterson has made cutesy, self-deprecating remarks before about how Washington isn’t smart enough to make farm management decisions. I guess even incredibly powerful incumbents feel some pressure from tea partiers to make cynical asides about Washington.
And yet. Here’s Mr. Peterson, in an interview with a upstate New York newspaper, offering his two cents’ on how to reform (and I use that term in the loosest possible sense) U.S. dairy policy:
When lawmakers map out a new safety net, it will have to include a supply management system to keep milk production in check, Mr. Peterson said…
Supply management could include measures to discourage farms from expanding, as well as a program to spur more dairy exports. In the past, the government has tried buying out farmers’ dairy herds, but production eventually recovered and the beef industry suffered from the low prices resulting from so many cows suddenly entering the slaughter market.
“Production management will have to be in it,” Mr. Peterson said…
As part of the changes, Mr. Peterson said, he also expects Congress will add California to the federal milk marketing system, which sets the minimum prices farmers receive.
So farm size is beyond the federal government’s expertise, but “production management” for dairy farms is not? Make up your mind, Congressman.
I also have concerns with the substance of Mr Peterson’s suggestions for dairy policy. Just last weekend I attended a workshop in Toronto where a graduate student from the University of Guelph gave an excellent presentation on the recent problems in the Ontario quota exchange, the market on which quota rights to produce dairy products in Ontario, Canada are traded. (The paper on which his analysis was based is not yet available.) Quota rights to, essentially, one cow trebled over recent years to more than C$30, 000. That’s just for the right to milk the cow, mind you. It doesn’t buy you the cow, or even the land or equipment or feed for the cow. Just the right to produce. As the student described the system, it sounded to me like the Canadian version of tulip mania, backed up by soviet-style supply management systems. Do we really want to introduce this sort of insanity to U.S. dairy markets, as if the current system wasn’t ludicrous enough?
Too Quiet on the Texas Front?
Over at Matt Yglesias’ blog, Ali Frick wants to know why she hasn’t detected any “conservative outrage” over the great Texas textbook tangle. Strangely, though, she only critiques Cato by name. That’s odd because (a) Cato is a libertarian organization, not conservative, and (b) there are many other libertarian — as well as truly conservative — think tanks out there.
Unfortunately, those things are just the beginning of the post’s odd twists.
Before I get into the weirdness, though, let me cop to the charge of relative silence. I’ve been meaning to hit the Texas situation harder, but have been dealing with a much greater education threat to the country — truly national curriculum standards — as well as other big issues.
Which reminds me: If Ms. Frick is very concerned about having one set of standards imposed on the entire nation, I invite her — and anyone else — to a major debate we’ll be having at Cato on the same day that proposed national standards are expected to be released to the public. Register here to attend!
So anyway, I have been relatively quiet on Texas. But not completely silent, and Ms. Frick could easily have found things that both I and others have written on the Lone Star social studies shootout just by searching for “Texas” and ”social studies” on Cato’s website. That search brings up this, and this, and this. Oh, and we sent this statement to media outlets, resulting in lots of radio interviews on the subject. How Ms. Frick missed all of these things, I do not know.
What is especially strange about Ms. Frick’s post, though, is not that she called Cato conservative (that’s all too common), or didn’t actually seem to check if we’d done anything on this. What is especially strange — or maybe just confused — is that she thinks people at Cato should be very upset about the Texas situation because the content of textbooks for Texas is often the content other states get stuck with.
For one thing, that Texas essentially dictates content for everyone else is an increasingly debatable point. More important for Frick’s piece, though, is that she asserts that somehow Texas being a big, centralized market is clearly something that creation of the U.S. Senate was supposed to mitigate, as well as the Constitution’s Supremacy Clause:
[I]t’s hard for me to think of really anything so antithetical to the Founding principles than for one state to mandate radical changes that all the other states are forced to swallow. Indeed, avoiding such an outcome was in large part the purpose of the Senate, not to mention the Supremacy Clause of the Constitution — really, the scrapping of the Articles of Confederation altogether.
What?
First off, if you read Federalist no. 62, there is just no way to interpret it as saying that the Senate will represent states so that an individual state’s policies won’t adversely affect other states. It simply discusses the need to give representation to both states and people in the national government of the new republic.
But that isn’t Frick’s biggest stretch. That is reserved for her application of the Supremacy Clause, which reads:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Once again, this says absolutely nothing about whether it is constitutional for a big state to adopt textbooks even if it affects the textbook choices of smaller states. The clause is entirely about the supremacy of federal laws — when made to exert the specific, enumerated powers given to the federal government — over state laws. It says diddly about state actions that simply have some impact on other states, especially when those actions have nothing to do with federal powers.
All that said, libertarians do have good reason to be concerned about what has transpired in Texas, as it illustrates brilliantly the conflict, politicization, and academic dangers inherent to government schooling. But that is an issue about which many of us at Cato have dealt at great length. I invite Ms. Frick to read it all.
Go Ahead: Ask. Tell.
Reports that the Obama administration and Congress are nearing a deal to repeal the misguided “don’t ask, don’t tell” (DADT) policy is good news for military effectiveness, and consistent with the highest ideals of our society.
The repeal of DADT will ensure that the most qualified, most highly motivated individuals are able to join the military. It will halt the discharge of highly trained men and women who have served their country honorably, and wish to continue to do so.
Earlier decisions to expand military service to qualified Americans, from Harry Truman’s decision to end racial segregation in the military, to Gerald Ford’s opening of the service academies to women, were unpopular within some quarters of American society at the time, but wise on the merits. These and other policies aimed at ensuring the most exacting standards in our military are now seen as instrumental to making it the finest in the world.
President Obama and the leaders in Congress are to be commended for this wise decision.
The Most Powerful Privacy Setting
Amid the hullaballoo about Facebook and privacy, it’s easy to forget the most powerful privacy setting.
In my 2004 Policy Analysis, “Understanding Privacy—and the Real Threats to It,” I wrote about the “privacy-protecting decisions that millions of consumers make in billions of daily actions, inactions, transactions, and refusals.”
Inactions and refusals. Declining to engage in activities that emit personal information protects privacy. Not broadcasting oneself on Facebook protects privacy. Not going online protects privacy.
The horror, some may think, of not having access to the wonders of the online world. Actually, many people live full and complete lives without it, enjoying the perfect online privacy default. The irony is a little too rich when avid users of Facebook—which is little more than a publicity tool—complain about its privacy problems.
Facebook does have some work to do on rationalizing and communicating the privacy protections its offers its publicity-seeking users. But people will always have the privacy protecting option of not using Facebook.
Not so for government-sponsored incursions on privacy, like the national ID system proposed by Senator Chuck Schumer (D-NY). Inaction and refusal of his national ID system would not be a practical option if Senator Schumer has his way. The irony isn’t just rich, it’s curdled and reeking when Senator Schumer leads the attack on Facebook for its privacy practices.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
New Crime Stats Contradict Anti-Immigrant Hype
Posted by Daniel Griswold
FBI crime figures reported in today’s Wall Street Journal challenge the perception that illegal immigrants have unleashed a crime wave in Arizona.
One of the clinching arguments for Arizona’s tough new law aimed at illegal immigration has been the perception in that state that crime has been rising, and that undocumented workers are largely to blame. Yet the Journal reports that the incidence of violent crime in Phoenix last year plunged 16.6 percent compared to 2008, a rate of decline that was three times the national average.
According to the Phoenix Police Department, the downward trend in crime has continued into 2010 even as the “illegal immigrant crime wave” story reverberates on cable TV and talk radio. As the Journal story reports:
The new crime figures confirm what I wrote in a column in today’s Washington Times under the headline, “Unfounded fear of immigrant crime grips Arizona,” and what I explored in a longer think piece, “Higher Immigration, Lower Crime,” in Commentary magazine a few months ago.
The president and Congress need to fix our immigration system, but we need to do it in the right way and for the right reasons.
Filed under: Law and Civil Liberties; Trade and Immigration
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