Archive for December, 2011
Will Congress Welcome Russia into the WTO?
Next week trade officials representing the more than 150 members of the World Trade Organization will gather in Geneva for a ministerial meeting. Most of the agenda will be a snoozer. The Doha Round is stuck in neutral, with no compromises in sight on agricultural protection, services trade liberalization, or anti-dumping reform. But one item of business will mark a major milestone: the admission of Russia into the club of trading nations.
As I argue in a Washington Times column this morning, and in a Cato Free Trade Bulletin co-authored with Douglas Petersen and released this week, Russia’s entry into the WTO will help to bring more rule of law to the former communist nation. It will also open its market further to U.S. exports, especially civilian aircraft, heavy machinery, computer software and hardware, and beef and poultry.
Approval by WTO members is a near certainty, but what remains an open question is whether the U.S. Congress will grant Russia permanent normal trade relations (PNTR). This will determine whether U.S. companies are granted the more favorable access to Russia’s market offered to other WTO members once it joins the organization. If Congress does not grant PNTR, Russia will join the WTO anyway, but U.S. companies will be at a competitive disadvantage.
In coming weeks, Congress will have an opportunity to welcome one of the world’s largest economies into the rules-based global trading system—and benefit the struggling U.S. economy in the bargain.
Big Brothers, PRODIGAL Sons, and Cybersecurity
I wrote on Monday that a cybersecurity bill overwhelmingly approved by the House Permanent Select Committee on Intelligence risks creating a significantly broader loophole in federal electronic surveillance law than its boosters expect or intend. Creating both legal leeway and a trusted environment for limited information sharing about cybersecurity threats—such as the idenifying signatures of malware or automated attack patterns—is a good idea. Yet the wording of the proposed statute permits broad collection and disclosure of any information that would be relevant to protecting against “cyber threats,” broadly defined. For now, that mostly means monitoring the behavior of software; in the near future, it could as easily mean monitoring the behavior of people.
A recent—and somewhat sensationalistic—Fox News article rather breathlessly describes a newly-unveiled security system dubbed PRODIGAL, or Proactive Discovery of Insider Threats Using Graph Analysis and Learning, which “has been built to scan IMs, texts and emails . . . and can read approximately a quarter billion of them a day.” The article explains:
“Every time someone logs on or off, sends an email or text, touches a file or plugs in a USB key, these records are collected within the organization,” David Bader, a professor at the Georgia Tech School of Computational Science and Engineering and a principal investigator on the project, told FoxNews.com.
PRODIGAL scans those records for behavior — emails to unusual recipients, certain words cropping up, files transferred from unexpected servers — that changes over time as an employee “goes rogue.” The system was developed at Georgia Tech in conjunction with the Defense Advanced Research Projects Agency (DARPA), the Army’s secretive research arm that works on everything from flying cars to robotic exoskeletons.
Don’t panic just yet: This is strictly being deployed on the networks of government agencies and contractors that handle sensitive information—places where every employee is well aware that their use of the network is subject to close scrutiny, and with good reason. There’s not really anything to say in principle against the use of such systems in this context, or for that matter on closed business networks where users are on clear notice that such monitoring occurs.
It would, by contrast, be a clear and quite outrageous invasion of privacy for such large-scale behavioral monitoring to be conducted on the residential or mobile broadband networks Americans rely on to provide their personal Internet connectivity—a fortiori if the goal is to share the results with the government without a court order. As I read it, however, House Intel’s cybersecurity bill would at least arguably permit precisely that.
Under the current language, as long as an Internet provider had a credible good faith belief that it was collecting and sharing behavioral information for one of several broadly defined “cybersecurity purposes”—say, by creating behavioral profiles of potential hackers, disruptive cyberactivists, or “misappropriators” of intellectual property—they’d enjoy full civil and criminal immunity for such actions. That would make any contractual promises to abstain from such monitoring unenforceable—in the highly unlikely event that ordinary users were even able to determine reliably what sort of information was being shared. It would be, to put it as mildly as possible, extraordinarily poor civic hygiene to enable the construction of this kind of quasi-public/quasi-private monitoring and profiling architecture.
This is not, I believe, the sort of thing the bill’s own architects aspire to bring about. But the abstract language employed in pursuit of technological neutrality here avoids the risk of obsolescence only by sacrificing predictability. Courts have recently begun signalling that they’re belatedly inclined to start insisting on full Fourth Amendment search warrants whenever government seeks digitally stored private contents, closing down statutory loopholes that sometimes gave investigators easier access. And now, just as one backdoor closes, a new backchannel granting access to otherwise private and protected material without any judicial process opens up? It does not take a cynic to predict that there will be a potent and persistent incentive to stretch any such channel as wide as the elastic bonds of the English language will permit.
The cleanest way to foreclose this is not to paste in a bunch of after-the-fact usage controls, minimization protocols, or special reports to Congress—though those aren’t bad ideas either. It’s to admit that Congress lacks psychic powers, which may entail that statutes regulating protean areas of technology have to be (or ought to be) swapped for the newer model about as often as iPhones. The specific, narrow categories of sharing everyone thinks are important and unobjectionable from a privacy perspective can be specifically, narrowly authorized now. In a decade, when we’re beaming thoughts directly to each other via quantum-entangled biomechanical brain implants, we can decide what specific statutory language solves the novel security problems of that technology, in a manner consistent with the Fourth Amendment.
Let’s Divest of GM Yesterday
Writing in today’s Washington Post, Charles Lane posits that the time is now for the U.S. Treasury to divest of its remaining 500 million shares of General Motors stock. I agree with that conclusion, but not with Lane’s rationale or his recommendation for a heavy-handed, government-imposed exit strategy.
Just to recap: the Treasury recouped $23 billion of taxpayers’ $50 billion outlay when it sold GM shares to the public in an IPO in November 2010; the outstanding 500 million shares in government coffers must be sold at an average price of $54 to recover the remaining $27 billion; the IPO price was $33; today’s price is $21.69. If all 500 million shares could be sold at today’s price, the Treasury would raise $10.8 billion, leaving taxpayers at a loss of just over $16 billion. (Of course, the sale of such a large number of shares would drive the average selling price way below today’s price, resulting in a much larger taxpayer loss.)
Lane is correct to conclude that GM’s immediate future isn’t looking quite so rosy. Demand is tanking in Europe. Concerns remain about whether GM will continue to be able to fund its $128 billion pension plan. And sales of the “game-changing” Chevy Volt have been lagging since the vehicle’s commercial introduction some 13 months ago—well before its engines demonstrated an annoying propensity to spontaneously combust. (Not to worry, says GM’s public relations team: the engines don’t seem to catch fire while being driven, only an hour or two after they’ve been parked in the garage.) Recognizing that that qualifier hasn’t been reassuring enough, GM is now offering to buy back any Chevy Volt it has ever sold, which doesn’t bode well for the bottom line, but also affirms how few of these Government Motors show pieces have even sold.
That grim analysis is the basis for Lane’s preference for government divestment now. There is more downside risk than upside potential. It is an argument based on market-timing, rather than on the principle that bad things happen when the government has a stake in the outcome of a race that it can influence. Sure, the administration would love to divest of GM at a profit to taxpayers. But the longer it is allowed to wait for that train to arrive, the greater the temptation to grease the skids.
The government should divest now. It should have divested in June, when it was first legally permissible to do so. But the administration (following, by logic, what would have been Lane’s advice at the time) rolled the dice, expecting the stock value to rise. Instead it fell. And then there was this.
But my bigger problem is with Lane’s proposal for a managed divestment. He writes:
It’s time to cut our losses. Treasury should start selling its stake in GM.
And I know just the buyer: GM. The company is sitting on more than $33 billion in cash, about triple the market value of Treasury’s 500 million shares, which is roughly $10.8 billion.
Though GM wants to dedicate much of its cash to shoring up its pension plan, it could still absorb most or all of Treasury’s shares, even if Treasury charges a modest premium over the current market price, as it should.
Lane proposes this under the guise of some perverse fealty to a “free-enterprise economy,” as it would spare shareholders from the stock price-depressing impact of an unnatural 500 million share dump. But those shareholders knew the risks they were taking when they purchased GM stock in the first place. They certainly knew that the largest single shareholder didn’t intend to hold its position for very long. Lane’s argument for protecting those shareholders in the name of free-enterprise in unconvincing, if not misplaced.
Furthermore, Lane’s zeal for sticking it to GM seems to eclipse any real commitment to free markets. Forcing GM to divert resources from where management wants to commit them in order to achieve some favorable political outcome (a smaller taxpayer loss) is just as coercive as some of the administration’s actions on the road to GM’s nationalization in the first place.
GM should not be entitled to any favors or exceptional treatment by virtue of its ownership structure. To be certain of that, it should be 100 privatized yesterday. But likewise, GM should not be subject to compensatory or otherwise countervailing policies designed to punish or remove any perceived advantage. For starters, it is impossible to measure the benefits received or the penalties suffered with any precision. Demanding that GM not be exposed to special treatment goes in both directions.
Border Security, the War on Drugs, and the 2012 GOP Presidential Race
The issue of border security has made its way into the 2012 GOP presidential race and candidates are jockeying to separate themselves from the pack. The topic garnered some attention at the Republican national security debate on November 22. An Associated Press story today examines the candidate’s platforms on the topic and as the title implies, rightly concludes securing the border is impossible. I am quoted in the article and make exactly that point:
Mitt Romney and Newt Gingrich have promised to complete a nearly 1,950-mile fence. Michele Bachmann wants a double fence. Ron Paul pledges to secure the nation’s southern border by any means necessary, and Rick Perry says he can secure it without a fence — and do so within a year of taking office as president.
But a border that is sealed off to all illegal immigrants and drugs flowing north is a promise none of them could keep.
“Securing the border is a wonderful slogan, but that’s pretty much all it is,” said Ted Galen Carpenter, a senior fellow at the libertarian Cato Institute. “Even to come close would require measures that would make legal commerce with Mexico impossible. That’s an enormous price for what would still be a very leaky system.”
The bottom line is the border is simply too big to control. Attempting to fully police the border must pass a simple cost-benefit analysis, and it is not clear that our current policy passes that test. And yet, the candidates all agree securing the border is necessary to combat terrorism, illegal immigration, and drug violence stemming from Mexico.
The candidates have little reason to reexamine that assumption. Not only is it politically advantageous to call for securing the border, but it is a convenient one-size-fits-all solution to those three broader policy issues. They have calculated that this is what voters want to hear.
But it is an illusory solution. Laws protecting the border must exist and be enforced, but it is not clear that this alone, even if done more effectively or efficiently, will prevent terrorists or illegal immigrants from entering the United States. And the “securing the border” panacea certainly will not end the flow of drugs into the United States.
Curiously, while the GOP candidates all express worries about terrorism and illegal immigration, the subject of the war on drugs has hardly been discussed. Although drug violence in Mexico is the only major security problem the Untied States faces on any of its borders, the issue has not produced serious consideration thus far. Rep. Ron Paul (R-TX) has been the only candidate to offer a thoughtful, consistent approach the issue, calling for an end to the failed policy.
The candidates should be pressured to answer why Washington continues to spend billions of dollars to wage the war on drugs each year with little to show for it. The power of the drug cartels has reached the point that the Mexican government no longer controls some areas of the country. And there are worrying signs that the violence is beginning to bleed across the border into the United States.
Our prohibitionist efforts have failed and a new policy is needed. Only by removing the lucrative black-market drug trade and thus effectively defunding the Mexican drug cartels can we begin to end the violence and illegal activity that plagues Mexico and the southern U.S. border region.
That is the substantive discussion that should be taking place in the GOP debates, rather than the posturing and repeated faux policy prescriptions to secure the border.
Four More Things Washington Shouldn’t Do
Today AEI’s Rick Hess and Stanford’s Linda Darling-Hammond—two folks who don’t always see eye to eye—have a New York Times op-ed that decries federal micromanagement in education, then lays out four things they think Washington should do.
If only they’d stopped at lamenting micromanagement.
Let’s take their four should-do’s in order:
First is encouraging transparency for school performance and spending. For all its flaws, No Child Left Behind’s main contribution is that it pushed states to measure and report achievement for all students annually….To track achievement, states should be required to link their assessments to the National Assessment of Educational Progress (or to adopt a similar multistate assessment). To shed light on equity and cost-effectiveness, states should be required to report school- and district-level spending…
This sounds great, but the key is in the doing, and there is precious little evidence Washington can force real transparency. NCLB is exhibit A: Yes, the law required states to break out data for all students and numerous subgroups, but the underlying information was essentially a lie, with states setting very low performance thresholds and calling it “proficiency.” And despite what many NCLB supporters will tell you, when you break down NAEP data—as I have done—there is little support for the notion that traditionally underperforming groups, or anyone else, have done better with NCLB than without it.
How about requiring common standards, both for academics and spending?
Even if you started with excellent, challenging academic standards, they would quickly be gutted at the behest of teacher unions, administrator associations, and probably even parents if many kids and schools didn’t meet them and were punished as a result. We’ve seen it many times, and there’s nothing about being federal that inoculates government against concentrated benefits and diffuse costs; the people most directly effected by a policy having the greatest political power over it. And financial data? As Adam Schaeffer has found, there are countless ways to hide the truth about district finances, and there’s little reason to believe that Washington will be either willing or able to sustainably force clarity.
One last thing: Where in the Constitution is the federal government authorized to demand “transparency”? Nowhere.
Second is ensuring that basic constitutional protections are respected. No Child Left Behind required states to “disaggregate” assessment results to illuminate how disadvantaged or vulnerable populations…were doing. Enforcing civil rights laws and ensuring that dollars intended for low-income students and students with disabilities are spent accordingly have been parts of the Education Department’s mandate since its creation in 1979.
Here there’s a slight connection to the Constitution: under the Fourteenth Amendment Washington has the duty to ensure that states and districts do not discriminate. But the presumption underlying what Darling-Hammond and Hess argue—that test data can reveal discrimination—is dubious. Can and should disparities in group scores really be laid exclusively at the feet of schools, districts, and states? Aren’t myriad factors involved in academic outcomes, many of which are outside the control of government?
Third is supporting basic research. While the private market can produce applied research that can be put to profitable use, it tends to underinvest in research that asks fundamental questions. When it comes to brain science, language acquisition or the impact of computer-assisted tutoring, federal financing for reliable research is essential.
We hear this one a lot, and in theory it makes some sense: people won’t risk their money on research that has no discernable payoff. The problem is few people ever contemplate the full cost of government funding “basic” research, or the unintended consequences.
The main concern is that putting money into things with no discernable payoff might yield just that—no payoff. So we hear about successes—government got us to the moon!—but rarely about how much has been lost in failed efforts. People don’t shy away from funding basic research just because they’re shortsighted. It’s also because they factor in risk.
Then there’s this: while we would like to think that all scientists are superhumanly selfless, they are not. They are as self-interested as the rest of us. Perhaps that’s why Austan Goolsbee—yes, Obama administration Austan Goolsbee—found in 1998 that much government R&D funding translated not into more breakthroughs, but higher wages for researchers.
The Security Theater Cycle
“What we obtain too cheap,” Thomas Paine famously wrote, “we esteem too lightly”—and it turns out that the converse holds true as well. It’s a well known and robustly confirmed finding of social psychology that people tend to ascribe greater value to things they had to pay a high cost to obtain. So, for instance, people who must endure some form of embarrassing or uncomfortable hazing process or initiation rite to join a group will report valuing their participation in that group much more highly than those admitted without any such requirement—which is one reason such rituals are all but ubiquitous in human societies as a way of creating commitment. Studies suggest that people are more likely to read automobile reviews after purchasing a new car than before—suggesting that people are sometimes less concerned with spending money in the most judicious fashion than with convincing themselves, after the fact, that they have done so. More morbidly, relatives of soldiers killed in action sometimes become much more fervent supporters of the war that cost them a loved one—because the thought that such a grave loss served no good purpose is too much to stomach.
I suspect that this phenomenon may help explain the dispiriting state of affairs described by an airline industry insider in an important Wired piece on airport security. The short version: we’ve spent some $56 billion on “enhancing” airport security over the past decade, with almost no actual security enhancement to show for it. We’re spending huge amounts of money and effort on burdensome passenger screening that doesn’t seem very effective, while neglecting other, far more vulnerable attack surfaces. It is, when you think about it, a somewhat strange priority given the abundance of highly vulnerable domestic targets. Reinforced cockpit doors and changed passenger behavior pretty much made a repeat of a 9/11-style suicide hijacking of a domestic flight infeasible—at negligible economic and privacy cost—long before we started installing Total Recall style naked-scanners, which makes explosives the real remaining risk. Yet the notable bombing attempts by passengers we’ve seen since 9/11 have (a) originated outside the United States, and (b) been foiled by alert passengers after the aspiring bomber slipped through the originating country’s formal screening process.
This shouldn’t be terribly surprising: when a terror group has already managed to get an operative into the United States, a domestic flight (that can’t be turned into a missile) would be one of the stupider, riskier targets to select, given the enormous array of much softer target options that would be available at that point, even assuming pre-9/11 airport security protocols. As far as I’m aware, the last time a passenger successfully detonated a bomb on a U.S. domestic flight was in 1962. This presents something of a puzzle: Why have we focused so disproportionately on this specific attack vector, at such disproportionate cost, when the terrorists themselves have not? Why haven’t we reallocated scarce resources to security measures (such as better screening of airline employees) that would provide greater security benefit at the margins? One possibility is that, having accustomed ourselves to submitting to the hassle and indignity of ever more aggressive passenger screening, we become more disposed to believe that these measures are necessary.
It’s become commonplace to refer to many aspects of airport screening—the removal of shoes, the transparent plastic baggies for your small allotment of shampoo—as “security theater.” Security guru Bruce Schneier coined the term to refer to security measures whose ritualistic purpose is to make passengers feel safer, even though they do almost nothing to actually increase safety. But on reflection, this seems wrong. It probably holds true in the immediate aftermath of a high-profile attack or disaster. Once the initial heightened fear subsides, however, these visible and elaborate security measures probably do more to increase our perception of risk than to assuage our fears. It is, after all, something of a cliche that hyperprotective parents tend to end up raising children who see the world as a more dangerous place. Overreacting to childhood illnesses is one reliable way of producing adult hypochondriacs down the road.
Security theater, then, isn’t only—or even primarily—about making us feel safer. It’s about making us feel we wouldn’t be safe without it. The more we submit to intrusive monitoring, the more convinced we become that the intrusions are an absolute necessity. To think otherwise is to face the demeaning possibility that we have been stripped, probed, and made to jump through hoops all this time for no good reason at all. The longer we pay the costs—in time, privacy, and dignity no less than tax dollars—the more convinced we become that we must be buying something worth the price. Hence, the Security Theater Cycle: the longer the ritual persists, the more normal it comes to seem, the more it serves as psychological proof of its own necessity.
Looking for Serious Program Terminations
The House passed a bill last week eliminating the Presidential Election Campaign Fund, which the Tax Foundation calls a “voluntary tax that stirs little enthusiasm.” It would also save a whopping $14 million by eliminating the Election Action Committee and transferring certain functions to other federal agencies.
The Republican-sponsored bill passed on a straight party-line vote with the exception of Rep. Walter Jones’ (R-NC) no vote. Eliminating the fund would result in the transfer of $200 million to the U.S. Treasury for deficit reduction. From a fiscal standpoint, $200 million in deficit reduction isn’t even worthy of a yawn. And based on press reports, floor debate centered on whether Republicans were really just trying to disenfranchise Democratic voters. Seriously, didn’t the GOP leadership have anything more substantial to bring to the floor?
I went looking for bills introduced in the House that would eliminate programs. The conservative Republican Study Committee’s Sunset Caucus has a list of bills sponsored by their members that would cut spending (see here). Although there are some worthy bills that the GOP leadership ought to at least get to the floor, I wasn’t overwhelmed by the offerings.
One that did look particularly good is a bill from Rep. Duncan Hunter (R-CA) that would “eliminate ineffective and unnecessary federal education programs.” I’d say that describes the entire Department of Education. However, as soon as I saw the bill’s title – The Setting New Priorities in Education Spending Act – I immediately knew that it would be a joke. Sure enough, the Congressional Budget Office’s scoring of the bill shows that I was, unfortunately, correct:
H.R. 1891 would amend the Elementary and Secondary Education act of 1965 to eliminate more than 40 discretionary grant programs. For 2011, the Department of Education allocated $413 million in funding from amounts appropriated in the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112-10) to programs that would be eliminated by H.R. 1891. Under current law, however, the funds allocated to those programs may be used for other grant programs that would not be eliminated by the bill.
Because annual appropriations to the Department of Education can be used for other programs, enacting the bill would not have a significant effect on spending from the appropriation provided for 2011. Furthermore, the authorizations for all of the programs specified in the bill have expired, so CBO estimates the bill would have no impact on such authorization levels. However, savings would accrue – as compared to 2011 appropriations levels – if the total amounts provided in 2012 and subsequent years are lower than the current-year funding for the department.
Note to Duncan Hunter: Why bother?
ObamaCare’s Preventive-Care Subsidies: Neither Free nor Cost-Effective
Matt Yglesias criticizes my comment in today’s USA Today when he writes, “making preventive health care free to the patient is…very cost-effective.”
Except it isn’t “free” to the patient.
And it isn’t cost-effective. The evidence strongly suggests we would “buy” as much health if we just waited for people to get sick and treated them then.
A Cybersecurity Exception to Wiretap Laws?
It’s gotten surprisingly little media attention thus far, but late last week the House Permanent Select Committee on Intelligence approved a bill to facilitate sharing and pooling of “cyber threat information” between private companies and government intelligence agencies—in particular, the übergeeks at the National Security Agency. It’s actually not a bad idea in principle. But the original draft was so broad that that the White House felt compelled to express concerns about the lack of privacy safeguards—which should give you pause, considering how seamlessly President Obama has shifted from thundering against the Patriot Act to quietly embracing the ongoing kudzu growth of our surveillance state. A few encouraging tweaks were hastily added before the committee approved it, but the bill’s current incarnation still punches an enormous hole in the wiretapping laws that have, for decades, been a primary guarantor of our electronic privacy.
First, a bit of context. Whenever you send an e-mail, start an IM chat, place a VoIP call, visit a web page, or download a file, your traffic passes through many intermediary networks, starting with your own broadband or wireless provider. While savvy users will protect their sensitive communications with encryption, our expectation of privacy when we use the Internet is also safeguarded by federal law, which generally prohibits network owners providing transit services to the general public from intercepting, using, or disclosing the contents of other people’s communications in any way beyond what’s needed to get the traffic from sender to recipient in the ordinary course of business. There are exceptions, of course: for law enforcement monitoring subject to a warrant, for emergencies, for consensual interceptions, and for monitoring that’s necessary to the protection of a provider’s own network. But the presumption against interception is strong and typically hard to overcome. (Non-public networks, like a corporation’s private intranet, are another story, of course.) Communications metadata—the information about who is talking to whom, and by what route—is less stringently regulated, but carriers are still barred from sharing that information with the government absent some form of legal process. The motivation for all of this is the understanding that heavily regulated carriers, which also often compete for lucrative government contracts, would be subject to government pressure to “voluntarily” share their customers’ data (especially if the sharing could be done secretly). Thus, the law ensures that the government will have to observe the niceties of judicial process before digging through citizens’ private communications, rather than relying on the “informal cooperation” of intermediaries.
This generally salutary arrangement does, however, create some difficulties in the cybersecurity context. Carriers and cybersecurity providers who have visibility on multiple private networks will often be in an optimal position to detect a wide array of attack patterns, involving both metadata (where are apparent attacks coming from? what timing patterns do they exhibit) and contents (what characteristic “signatures” indicate the presence of viruses, malware, or mass phishing emails). This is information it’s highly valuable to have shared among providers—and, yes, the government too—and which generally doesn’t implicate the kinds of privacy interests wiretap law is supposed to protect. But legislators (or rather, the staffers who actually draft these bills) are generally keen to craft “tech neutral” laws that aren’t bound too tightly to current technologies and vulnerabilities, and therefore won’t be obsolete in the face of new tech or new threats. Unfortunately, this often entails erring on the side of breadth, which in this case means creating a massive loophole to remove a minor obstruction—the legislative equivalent of blowing your nose with C-4.
The bill provides that, “notwithstanding any other provision of law,” a company that provides cybersecurity services for its own networks or others may use “cybersecurity systems” to acquire “cyber threat information,” and share such information with any other entity, including the government. (One of the amendments introduced last week stipulates that the government may use and share that information only when one “significant purpose” of such use is the protection of national security or cybersecurity.) The crucial question, of course, is what counts as “cyber threat information.” That term is defined to encompass:
information directly pertaining to a vulnerability of, or threat to a system or network of a government or private entity, including information pertaining to the protection of a system or network from—
(A) efforts to degrade, disrupt, or destroy such system or network; or
(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.
The intention here is to cover the sort of information I talked about earlier—intrusion patterns and malware fingerprints. On a literal reading, though, it might also include Julian Assange’s personal IM conversations (assuming he ever had an unencrypted one), or e-mails between security researchers. Moreover, one important purpose of this information sharing is to be able to distinguish malicious from benign traffic—which may mean combing through a big chunk of traffic logs surrounding a suspected or confirmed penetration attempt (and comparing those logs to others) in order to extract the hostile “signal” from the background noise. That makes it extremely likely that a substantial amount of wholly innocent, and potentially sensitive, information about ordinary Americans’ Internet activities will end up in the sharing pool. Many attacks will appear to originate from computers conscripted into malicious botnets by malware, unbeknownst to owners whose legitimate personal traffic could easily be swept in and shared as “cyber threat information” as well. The current proposal doesn’t require minimization or anonymization of personal information unless the companies sharing the information impose such conditions themselves. Finally, “cybersecurity systems” is sufficiently vaguely defined that one could even imagine a sysadmin with a vigilante streak reading it to include aggressive countermeasures, like spyware targeting suspected attackers. After all, “notwithstanding any other provision of law” includes provisions of (say) the Computer Fraud and Abuse Act that would place such tactics out of bounds.
Intelligence agencies are also empowered to share classified cyberintelligence with designated companies—and heaven help the firm that’s starved of that security information while their competitors have access to it. Another of the amendments added last week expressly bars conditioning such intelligence sharing on any particular company’s level of “voluntary” cooperation, and clarifies that the intelligence companies may not “task” private companies with obtaining specific types of information for them. Which is nice, but seems awfully hard to enforce in practice. What we’ve already seen, unfortunately, is that cozy long term collaborative relationships between carriers and intelligence agencies are breeding grounds for abuse, even when the law actually does prohibit the carriers from sharing information without legal process. It’s desirable to create legal space for limited cyberthreat information sharing—but it has to be done without creating a large and tempting backdoor through which government might seek to use “voluntary information sharing” as a way to avoid getting a warrant or court order.
It Is Less Important Who Pays Taxes Than What Government Does With Them
Often when surveying the political landscape here in Washington, one can’t help but be struck by the feeling “is this the most important thing we have to discuss”? That was my reaction to today’s Politico story on party differences with extending the payroll tax cut. The difference, as Politico would have us believe, are that Democrats want millionaires to pay, while Republicans want government employees to bear the costs. It seems to be the case with whatever the issue is, who pays?
Quite simply, this debate between Republicans and Democrats over who should bear the costs of government is completely misplaced. We should be asking ourselves why the government has such a deep involvement in our lives in the first place.
If the government should not be involved in an activity, how is said activity any more just if its paid for by millionaires or the middle class. Would the fact that we have the largest prison population in the world somehow be more just if only more of the cost of it was borne by millionaires? Would having our failed drug war funded solely by millionaires turn it into a success? How about the U.S. playing world policeman? Would we be more loved around the world if our military was funded more by millionaires? Would we be viewed as honest brokers in the Middle East if our foreign aid was funded by millionaires? Is having children struck in failing public schools more just if those schools are funded by millionaires?
Here’s my offer to both my Democrat and Republican friends, you let me decide what the size and scope of government is going to be, and I am happy to let you decide upon “who pays”.
Congress’s Budget in Perspective
A new poll conducted for The Hill found that 67 percent of likely voters think members of Congress should take a pay cut. With the economy still struggling and the government’s debt continuing to mount, congressional pay is — understandably — a sore subject with voters. However, I get the impression that a lot of people think that cutting Congress’s budget would have a sizable impact on the government’s financial situation.
It wouldn’t.
The following chart shows fiscal 2011 spending for the House and Senate, the entire legislative branch, and the entire government:
Spending for the House and Senate, which includes salaries, mailings, and committee expenses, represents only .07 percent of total federal spending. The entire legislative branch includes additional expenses for the Government Accountability Office, the Congressional Budget Office, the Library of Congress, and other functions that can be viewed here. It only amounts to .14 percent of total federal spending.
Please do not take this post to mean that I believe that congressional pay is completely unimportant. The point is that congressional pay is relatively unimportant when measured against the overall size of the federal budget. Therefore, I think those readers who are concerned about government spending and debt should focus their attention on considerably larger problems like Social Security, Medicare, and military spending.
The Real Trouble With the Defense Authorization Bill
The Senate on Thursday passed the 2012 defense-authorization bill. It includes a controversial provision meant to put al-Qaeda suspects and their associates in military custody rather than prosecute them as criminals. The White House has rather weakly threatened a veto, complaining primarily that the bill undercuts their discretion in dealing with terrorists.
If the White House vetoes the bill, it will be for the wrong reasons. The trouble is not what the law mandates but what it affirms. It does not require the president to put any terrorists in military custody but rather to comply with a new bureaucratic process if he chooses not to do so. Even as we move toward the end of the wars in Iraq and Afghanistan, the law affirms a presidential power to detain anyone, including American citizens, in the name of fighting a nebulous and seemingly permanent terrorist menace. That is bad for both civil liberties and for our ability to think clearly about terrorism.
Most debate about the bill concerns section 1032. It says that the armed forces “shall hold” anyone that is part of al-Qaeda or an associated force and participants in an attack on the United States or its coalition partners for the course of hostilities authorized by Congress in 2001—and dispose of those suspects under laws of wars. American citizens are excluded. Thanks to a compromise negotiated by Armed Service Committee Chair Carl Levin (D-MI) and Ranking Member John McCain (R-AZ), the section now allows the secretary of defense, after consulting with the secretary of state and director of national intelligence, to keep the suspect in civilian courts by informing Congress that doing so serves national security.
The administration objects to 1032 largely because it undercuts their discretion. However, as Levin and McCain note in a recent op-ed, the administration still “determines whether a detainee meets the criteria for military custody.” The president could presumably just decline to label a detainee as someone fitting the requirements of military detention in the first place and try him in civilian court without getting a waiver from the secretary of defense.
The provision’s main relevance is as a talking point. Republicans already fond of castigating the president for allowing alleged terrorists to have their day in court can pretend that he is ignoring this law when he does so.
The real trouble with the bill is the preceding section, 1031. It “affirms” that the authorization of military force passed prior to the invasion of Afghanistan allows the president, through the military, to detain without trial al-Qaeda members, Taliban fighters, associated forces engaged in hostilities against the United States and those that support those groups. Nothing excludes American citizens.
The section says that it does not expand presidential war powers, but that contradicts its other language and common sense. By explicitly endorsing constitutionally dubious powers that the president already claims, Congress makes those claims more likely to survive legal challenge.
The 2001 Authorization of Military Force allows the president to make war on “nations, organizations, or persons” that he determines to have been involved in or aided the September 11 attacks and those that harbored these groups. Effectively, that meant al-Qaeda and the Taliban. Our last two presidents have used that authority to claim the right to kill or indefinitely detain anyone, anywhere that they decide is associated with some arm of al-Qaeda. The courts have trimmed these powers in ways that remain uncertain, particularly as applied to U.S. citizens. In Hamdi v. Rumsfeld, the Supreme Court held that the U.S. military has the power to detain without trial Americans captured on foreign battlefields but that the detainee can challenge the detention in court. Contrary to Carl Levin’s assertions, the ruling did not say that people seized in the United States fit that category.
This defense bill’s expansive list of enemies strengthens the president’s claim that he can detain almost anyone without trial in the name of counterterrorism. Future White House lawyers will cite it to justify those powers. Courts may tell Americans that challenge their detention on constitutional grounds that Congress’s endorsement of the president’s claims to detention powers makes them sounder.
The bill may even strengthen the president’s case for using other war powers, like killing citizens with drone strikes. That interpretation is bolstered by the detainee language’s similarity to the reauthorization of force contained in the House’s defense bill. That legislation explicitly gives the president the power to make war on al-Qaeda, the Taliban and associated forces. By using nearly identical language to describe who the president can detain under his war powers, the Senate bill may stealthily achieve the same end.
Liberalism means minimizing the exercise of war powers. To say, as backers of this legislation do, that the constitution allows our government to kill and detain people without trial is not an argument that we should do so often. Because those powers so offend liberalism, those that advocate them should have the burden of explaining why they are necessary, even if they are constitutional.
Instead, advocates of these extraordinary powers take it as nearly self-evident that military detention is somehow safer than criminal trials. But criminal proceedings, because they are adversarial, produce better information than military interrogations. That information makes the public better consumers of counterterrorism policies. Public debate does not always make better public policy, but it often helps.
You can see how by looking at the footnotes of books about terrorism, like the 9-11 report. Many of sources are records of criminal trials of terrorists. Had all those suspects been held without trial, their testimony and the government’s claims about them might have remained secret. What did become public would be less trustworthy because it would not have been vetted by an institutional adversary, as in court.
Take the case of Umar Farouk Abdulmutallab, the Underwear Bomber, and its connection to the killing of Anwar al-Awlaki, the jihadist propagandist killed earlier this year in Yemen. Both before and after getting a Miranda warning, Abdulmutallab apparently told his FBI interrogators a great deal of information about his trip to Yemen to prepare the explosives he tried to detonate in plane over Detroit. Had he not plead guilty on the first day of trial, prosecutors were set to argue that Awlaki had aided the plot. The government would have had to substantiate its claim that Awlaki, an American citizen, had graduated from being a propagandist to plotting attacks and therefore become a combatant they could legally kill—something they still have not done. The trial would have shed light on how the White House decides which of its citizens it can kill in the name of counterterrorism. That information would at least inform debate.
Civil liberties are a sufficient reason to oppose handing the executive the power to detain more or less whomever it wants. But our system of government does not divide powers simply for fairness. Unilateral decisions are more likely to be foolish ones.
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