The ‘Privacy Bill of Rights’ Is in the Bill of Rights
Every lover of liberty and the Constitution should be offended by the moniker “Privacy Bill of Rights” appended to regulatory legislation Senators John Kerry (D-MA) and John McCain (R-AZ) introduced yesterday. As C|Net’s Declan McCullagh points out, the legislation exempts the federal government and law enforcement:
[T]he measure applies only to companies and some nonprofit groups, not to the federal, state, and local police agencies that have adopted high-tech surveillance technologies including cell phone tracking, GPS bugs, and requests to Internet companies for users’ personal information–in many cases without obtaining a search warrant from a judge.
The real “Privacy Bill of Rights” is in the Bill of Rights. It’s the Fourth Amendment.
It takes a lot of gall to put the moniker “Privacy Bill of Rights” on legislation that reduces liberty in the information economy while the Fourth Amendment remains tattered and threadbare. Nevermind “reasonable expectations”: the people’s right to be secure against unreasonable searches and seizures is worn down to the nub.
Senators Kerry and McCain should look into the privacy consequences of the Internal Revenue Code. How is privacy going to fare under Obamacare? How is the Department of Homeland Security doing with its privacy efforts? What is an “administrative search”?
McCullagh was good enough to quote yours truly on the new effort from Sens. Kerry and McCain: “If they want to lead on the privacy issue, they’ll lead by getting the federal government’s house in order.”
Finally, a Breakthrough on the Colombia Trade Agreement
To no great surprise, the Obama administration announced today that it has cut a deal with the government of Colombia to address concerns about labor protections and to finally move toward enacting the long-stalled free-trade agreement between our two countries. This is welcome news for trade expansion and for strengthening our ties to a key Latin American ally.
Colombian President Juan Manuel Santos is expected to arrive later this week in Washington to cement the deal. In exchange for the agreement, Colombia has reportedly agreed to expand its efforts to protect union members from violence and to more vigorously prosecute those responsible.
As my Cato colleague Juan Carlos Hidalgo and I documented in a Cato study earlier this year, concerns about labor protections were never a valid reason for holding up this agreement. The overall murder rate in Colombia has declined dramatically in the past decade, and the murder rate against members of labor unions has declined even more rapidly. A union member in Colombia today is one-sixth as likely to be a victim of homicide as a fellow citizen who does not belong to a union. Meanwhile, the Colombia government has increased convictions for homicides against union members by eight-fold in the past three years.
As Democratic Senators John Kerry and Max Baucus pointed out in an op-ed this week that endorsed the agreement, the International Labor Organization has certified that Colombia is complying with its international labor agreements.
The obstacle of labor violence was just a political smokescreen that had been raised by labor-union leaders in the United States looking for any shred of an argument to oppose the agreement. Even the agreement announced this week is not going to win over the AFL-CIO. The Colombia government could have raised a hundred murdered union members from the dead, and organized labor in American would still chant that not enough was being done.
The breakthrough this week clears the path for Congress to approve, by what I predict will be comfortable bipartisan majorities, the pending trade agreements with Colombia, Panama, and South Korea.
Good News! Online Tracking is Slightly Boring
You have to wade through a lot to reach the good news at the end of Time reporter Joel Stein’s article about “data mining”—or at least data collection and use—in the online world. There’s some fog right there: what he calls “data mining” is actually ordinary one-to-one correlation of bits of information, not mining historical data to generate patterns that are predictive of present-day behavior. (See my data mining paper with Jeff Jonas to learn more.) There is some data mining in and among the online advertising industry’s use of the data consumers emit online, of course.
Next, get over Stein’s introductory language about the “vast amount of data that’s being collected both online and off by companies in stealth.” That’s some kind of stealth if a reporter can write a thorough and informative article in Time magazine about it. Does the moon rise “in stealth” if you haven’t gone outside at night and looked at the sky? Perhaps so.
Now take a hard swallow as you read about Senator John Kerry’s (D-Mass.) plans for government regulation of the information economy.
Kerry is about to introduce a bill that would require companies to make sure all the stuff they know about you is secured from hackers and to let you inspect everything they have on you, correct any mistakes and opt out of being tracked. He is doing this because, he argues, “There’s no code of conduct. There’s no standard. There’s nothing that safeguards privacy and establishes rules of the road.”
Securing data from hackers and letting people correct mistakes in data about them are kind of equally opposite things. If you’re going to make data about people available to them, you’re going to create opportunities for other people—it won’t even take hacking skills, really—to impersonate them, gather private data, and scramble data sets.
If Senator Kerry’s argument for government regulation is that there aren’t yet “rules of the road” pointing us off that cliff, I’ll take market regulation. Drivers like you and me are constantly and spontaneously writing the rules through our actions and inactions, clicks and non-clicks, purchases and non-purchases.
There are other quibbles. “Your political donations, home value and address have always been public,” says Stein, ”but you used to have to actually go to all these different places — courthouses, libraries, property-tax assessors’ offices — and request documents.”
This is correct insofar as it describes the modern decline in practical obscurity. But your political donations were not public records before the passage of the Federal Election Campaign Act in 1974. That’s when the federal government started subordinating this particular dimension of your privacy to others’ collective values.
But these pesky details can be put aside. The nuggets of wisdom in the article predominate!
“Since targeted ads are so much more effective than nontargeted ones,” Stein writes, ”websites can charge much more for them. This is why — compared with the old banners and pop-ups — online ads have become smaller and less invasive, and why websites have been able to provide better content and still be free.”
The Internet is a richer, more congenial place because of ads targeted for relevance.
And the conclusion of the article is a dose of smart, well-placed optimism that contrasts with Senator Kerry’s sloppy FUD.
We’re quickly figuring out how to navigate our trail of data — don’t say anything private on a Facebook wall, keep your secrets out of e-mail, use cash for illicit purchases. The vast majority of it, though, is worthless to us and a pretty good exchange for frequent-flier miles, better search results, a fast system to qualify for credit, finding out if our babysitter has a criminal record and ads we find more useful than annoying. Especially because no human being ever reads your files. As I learned by trying to find out all my data, we’re not all that interesting.
Consumers are learning how to navigate the online environment. They are not menaced or harmed by online tracking. Indeed, commercial tracking is congenial and slightly boring. That’s good news that you rarely hear from media or politicians because good news doesn’t generally sell magazines or legislation.
No to No-Fly Zones
My Washington Examiner column this week is on the growing drumbeat for military action in Libya. That allegedly serious people are proposing, as Defense Secretary Gates puts it, “the use of the US military in another country in the Middle East,” ought to be appalling. If the last ten years haven’t convinced you that a little prudence and caution might serve us well in foreign policy, what would?
Recently Senators John McCain (R-AZ) and Joe Lieberman (I-CT), the Bobbsey Twins of knee-jerk interventionism, chastised Obama for dragging his feet on the path toward war. They called for arming the rebels and implementing a no-fly zone, for starters.
“I love the military,” Sen. McCain complained “but they always seem to find reasons why you can’t do something rather than why you can.” Alas, “can’t is the cancer of happen,” as Charlie Sheen reminded us recently.
Even so, I argue in the column, there are good reasons to resist the call for this supposedly “limited” measure.
But let’s stipulate that NATO warplanes (mainly U.S. fighters, of course) could deny pro-Gadhafi forces the ability to deploy air power. That would not impede their ability to murder on the ground. What then?
NATO flew more than 100,000 sorties in Operation Deny Flight, the no-fly zone imposed over Bosnia from 1993 to 1995, yet that wasn’t enough to prevent ethnic cleansing or the killing of thousands of Bosnians in the 1995 Srebrenica massacre.
It did, however, help pave the way for a wider war and a 12-year nation-building mission. In for a penny, in for a pound — intervention tends to have a logic of its own.
This is a good occasion, then, to reflect on a fundamental question: What is the U.S. military for? Humanitarian interventionists on the Left and the Right seem to view it as an all-purpose tool for spreading good throughout the world — something like the “Super Friends” who, in the Saturday morning cartoons of my youth, scanned the monitors at the Hall of Justice for “Trouble Alerts,” swooping off regularly to do battle with evil.
Our Constitution takes a narrower view. It empowers Congress to set up a military establishment for “the common defence … of the United States,” the better to achieve the Preamble’s goal of “secur[ing] the Blessings of Liberty to ourselves and our Posterity.” Armed liberation of oppressed peoples the world over wasn’t part of the original mission.
Funny enough, when he first got to Washington, John McCain occasionally appreciated the virtues of foreign policy restraint. As Matt Welch recounts in his book McCain: The Myth of a Maverick: “In September 1983, as a freshman congressman and loyal foot soldier of the Reagan revolution, John McCain voted against a successful measure to extend the deployment of US Marines in war-torn Lebanon.” In a speech on the House floor, McCain argued that “The fundamental question is, what is the United States’ interest in Lebanon?…. The longer we stay in Lebanon, the harder it will be for us to leave.”
Later, Welch writes that, in 1987, when President Reagan reflagged Kuwaiti oil tankers in the Persian Gulf, offering them “US Navy protection against a threatening Iran, McCain was livid.” He took to the pages of the Arizona Republic to complain that the move was “a dangerous overreaction in perhaps the most violent and unpredictable region in the world…. American citizens are again be asked to place themselves between warring Middle East factions, with…. no real plan on how to respond if the situation escalates.”
It’s been a long time since Senator McCain made such good sense on foreign policy.
Taxes Are for the Little People, not John Kerry
In the future, dictionary publishers should get rid of their existing definitions for “hypocrisy” and replace them with a photo of Massachusetts Sen.ator John Kerry. He’s just been caught committing the horrible sin of saving his family more than $500,000 by domiciling his new yacht in Rhode Island (which is a tax haven for such luxuries) rather than his home state. Or at least Senator Kerry says that tax planning is a horrible sin when conducted by “Benedict Arnold” companies and facilitated by those wicked tax havens. But I guess that it’s not such a bad thing when Senator Kerry is protecting his wealth. For the rest of us peasants, it’s our job to meekly get in line and submit to whatever taxes Senator Kerry graciously decides to impose.
The Boston Herald reports:
Sen. John Kerry, who has repeatedly voted to raise taxes while in Congress, dodged a whopping six-figure state tax bill on his new multimillion-dollar yacht by mooring her in Newport, R.I. Isabel — Kerry’s luxe, 76-foot New Zealand-built Friendship sloop with an Edwardian-style, glossy varnished teak interior, two VIP main cabins and a pilothouse fitted with a wet bar and cold wine storage — was designed by Rhode Island boat designer Ted Fontaine. But instead of berthing the vessel in Nantucket, where the senator summers with the missus, Teresa Heinz, Isabel’s hailing port is listed as “Newport” on her stern. Could the reason be that the Ocean State repealed its Boat Sales and Use Tax back in 1993, making the tiny state to the south a haven — like the Cayman Islands, Bermuda and Nassau — for tax-skirting luxury yacht owners? Cash-strapped Massachusetts still collects a 6.25 percent sales tax and an annual excise tax on yachts. Sources say Isabel sold for something in the neighborhood of $7 million, meaning Kerry saved approximately $437,500 in sales tax and an annual excise tax of about $70,000. …[S]tate Department of Revenue spokesguy Bob Bliss confirmed the senator “is under no obligation to pay the commonwealth sales tax.”
Kerry and Lieberman Unveil Their Climate Bill: Such a Deal!
I see that my colleague Sallie James has already blogged on the inherent protectionism in the Senate’s long-awaited cap-and-tax bill. A summary was leaked last night by The Hill.
Well, we now have the real “discussion draft” of “The American Power Act” [APA], sponsored by John Kerry (D-NH) and Joe Lieberman (I-CT). Lindsay Graham (R-SC) used to be on the earlier drafts, but excused himself to have a temper tantrum.
So, while Sallie talked about the trade aspects of the bill, I’d like to blather about the mechanics, costs, and climate effects. If you don’t want to read the excruciating details, stop here and note that it mandates the impossible, will not produce any meaningful reduction of planetary warming, and it will subsidize just about every form of power that is too inefficient to compete today.
Ten Protectionist Senators Pay Lip-Service to International Trade Rules
Sen. Sherrod Brown (D, OH), along with eight other “usual suspects,” yesterday sent a letter to Senators John Kerry (D, MA), Joe Lieberman (I, CT) and Lindsey Graham (R, SC), outlining what’s necessary for their support of the latter’s climate green jobs bill (there seems to be some confusion about the precise purpose). The math, assuming that Republicans vote as a block to defeat the bill, requires that these senators’ demands be met if the Democrats are to overcome a filibuster and pass the bill.
So what exactly do they want? The main thrust of their demands seems to be for U.S. manufacturing’s competitiveness to be “addressed,” including by asking for the bill to “invest” (don’t you just love the way that word is used in the public policy context?) in retooling, R&D, and “support [for] American manufacturers of clean energy technology,” among other requirements.
Of course, no letter from these folks* would be complete without the obligatory calls for a “level playing field.” Their wish-list therefore also includes provisions to ”apply border measures to prevent carbon leakage”. That, my friends, is a clear reference to carbon tariffs. The senators explain their concerns as follows:
An automatically triggered border measure is necessary to promote comparable action from other countries and prevent carbon leakage. To avoid undermining the environmental objective of the climate legislation, a WTO-consistent border adjustment measure, which the WTO has recognized as a usable tool in combating climate change, should apply to imports from countries that do not have in place comparable greenhouse gas emissions reduction requirements to those adopted by the United States. A border adjustment measure is critical to ensuring that climate change legislation will be trade neutral and environmentally effective.
Much of these sentiments are familiar. Indeed, I have combatted some of the myths implicit in the statement, including why “carbon leakage” might be a bit of a red herring, in my paper from September 2009, “A Harsh Climate for Trade,” and at a Hill brief I gave on this topic last year.
Do You or Do You Not Hate America?
Sen. John Kerry (D, MA) made an, er, interesting rhetorical case yesterday (as reported on E2 Wire, The Hill‘s Energy and Environment blog) that borrows heavily from the Bush playbook: your patriotism hinges on voting for his favored policy — in this case, a climate change bill. Not that the bill is really about climate change, of course. It’s about a list of goodies completely unrelated to the changing political winds:
What we are talking about is a jobs bill. It is not a climate bill. It is a jobs bill, and it is a clean air bill. It is a national security, energy independence bill,” he told reporters in the Capitol…
“And people are going to have to decide whether they are going to vote for America or against it,” he concluded.
Should the Government Pay for Christian Science?
Leaders of the Church of Christ, Scientist, are pushing to get a provision into the health care bill that would mandate equal treatment for “spiritual healing,” such as Christian Science prayer treatments. Sens. John Kerry and Orrin Hatch are trying to get it inserted into the Senate bill, according to the Washington Post.
Kerry’s spokeswoman, Whitney Smith, told the Los Angeles Times that insurers would not be forced to cover prayer. Instead, she said, “the amendment would prevent insurers from discriminating against benefits that qualify as spiritual care if the care is recognized by the IRS as a legitimate medical expense. Plans are free to impose standards on spiritual and medical care as long as both are treated equally. It does not mandate that plans provide spiritual care.”
So far the provision has not been included in either the House or the Senate bill, but efforts are continuing. The Post reports that “opponents of spiritual care coverage — a coalition of separation-of-church-and-state advocates, pediatricians and children’s health activists — say such a provision would waste money, endanger lives and, in some cases, amount to government-funded prayer.”
To a lot of us, this sounds ridiculous. Pray if you think it helps. But why should that be the government’s business? And why on earth would we want the government to mandate that insurers cover prayers?
But if you want government health care, then this is the world you have chosen. We’ve already seen pitched battles over whether abortion should be covered by government programs, or government-subsidized programs, or insurance plans that participate in the government “exchange.” The House bill eliminates a tax penalty for same-sex couples who receive health benefits from employers, but so far the Senate bill does not. The House bill provides grants to states for “home visitation” programs in which nurses and social workers counsel pregnant women and new mothers in low-income families, coaching them on “parenting practices” and skills needed to “interact with their child to enhance age-appropriate development” — a program that some American families would surely find Big Brother-ish.
But that’s the reality of government-funded and directed health care. If the government is paying for it, then every inclusion or exclusion — abortion, fertility treatments, prayer, same-sex couples, acupuncture, homeopathy – becomes a matter for political decision. And political decisions become the subject of political activity and lobbying, by groups ranging from Big Pharma to small insurance companies to nurses to Catholic bishops to Christian Scientists. No wonder lobbying is up in our increasingly politicized economy, particularly in the health care arena.
You can’t have government pay for something as personal and intimate as health care, and not find the government poking around in the bedroom, the medicine cabinet, the sickroom, and the chapel.
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