New research by Harvard professor David J. Deming studied the crime rates of young adults who participated in a random lottery at the middle or high school level. The lotteries decided whether students were able to attend a school of their choice or whether they were forced to attend their assigned public school. Students who won the lottery committed significantly fewer crimes as young adults than those who lost it. So here is another in the long list of educational outcomes improved by market freedoms and incentives.

Send this to a friend who is still on the fence about the merits of educational freedom.

School Choice Lowers Crime is a post from Cato @ Liberty - Cato Institute Blog

It’s a valuable public good, research is, isn’t it? Think of where we’d be without it! I mean, it was government research that came up with the Internet, for heaven sake.

That’s a response to the argument I made last week against government funding of scientific research. Moving away from public funding of scientific research would solve the problem of private companies capturing publication spoils from research that taxpayers funded.

The Defense Advanced Research Projects Agency did indeed come up with and popularize the protocol called TCP/IP, which the Internet uses. (Everyone’s use of the protocol really makes the Internet what it is, of course, but nevermind that.)

To take the Internet as proof that the government is a necessary producer of research and innovation, you have to reject the scientific method. Unfortunately, there are rarely controls in public policy. We can’t find out what would have happened if government policy had taken a different course, so we don’t know anything more about who should fund research from the fact that government-funded research has produced good things in the past.

But what would have happened if U.S. public policy had taken a different course? I’ve thought about the impossible-to-answer question of where we would have been without DARPA and other government influences on telecom. What most people don’t consider, I believe, is the restraining influence the government-granted AT&T monopoly had on telecommunications for most of the 20th century. AT&T developed a “Teletypewriter Exchange” system in 1931, for example, but had no need to develop it, there being little or no competitive pressure to do so. (Its patent on attaching devices to phone wires undoubtedly helped as well, preventing anyone using AT&T’s wires for modem service.)

Had there been competition, I suspect that someone would have come up with the idea of packet-switched networks—that’s what the Internet is—before Leonard Kleinrock did in 1962. Kleinrock was a student at MIT—he wasn’t at DARPA, which didn’t get into packet-switching until about 1966. (Then again, MIT was almost certainly awash in government money—specifically military money—so there you go. Maybe we owe all the good things we’ve got to war, but I doubt it.)

My guess—and it’s only that—is that we would have had the Internet some decades earlier if not for government interventions in telecommunications. We probably would have had multiple, competing “Internets,” actually, adopted more slowly than the Internet we got. (In a chapter of Privacy in America: Interdisciplinary Perspectives, I explored how government has accelerated the development of computing and communications, overpowering society’s capacity to adjust, with negative consequences for privacy.)

Support for government-funded research requires one to elide opportunity costs, the things foregone when one thing is chosen. As I said before, tradeoffs are ineluctable: Money spent on government research takes away from private research, or from other priorities such as reducing debt. In the absence of taxation to support research, the money would go to the public’s priorities as determined directly by the public in manifold spending and investing decision. Taxation and spending on government research is merely the substitution of centralized, political decision-making for a distributed, direct decision-making system. Its supporters are generally going to be beneficiaries of that system—elites, in short.

Even these beneficiaries of the status quo tend to agree that political decisions about funding for scientific research are warped. The solution to that problem, they’ll say, is fixing the political system—that is, creating a political system that is not so political.

Such a breakthrough is as unlikely as the invention of water that is not wet. Perhaps we can put DARPA on both projects.

But Don’t We Really Need Government Research? is a post from Cato @ Liberty - Cato Institute Blog

I came across an interesting information policy scuffle yesterday. It’s worth knowing about in general, and I’ll share my liberconoclastic view of things below.

Congressman Darrell Issa (R-CA) has introduced a bill called the Research Works Act. The consensus is that it’s meant to keep government-funded research from being published for free. This would keep the publication of that research going through scholarly and scientific journals, neatly maintaining profits for an industry that society might not need while restricting public access to research the U.S. taxpayer paid for. (I have my doubts that the language of the bill actually successfully does that, but that’s inconsequential.)

Here’s a good opponent-side article on the bill. The Association of American Publishers likes the bill.

On a discussion list, Jonathan Band articulated how the business of government-funded research works. It’s helpful to know if you haven’t focused on this area before:

1. Federal and state governments, directly or indirectly, pay salaries of researchers.
2. Federal government awards grants for specific research projects. Average NIH grant is around $500,000.
3. Researcher performs the research and writes a draft article about it.
4. Researcher submits the draft article to publisher.
5. Publisher requires the researcher to transfer the copyright in the draft article (for free) before it will touch the draft.
6. Publisher emails the draft article to other researchers in the field.
7. These “peers” review the article for free as part of their contribution to the field. (As noted in step 1, their salaries are paid by government.)
8. The researcher revises the draft in response to the peers’ comments.
9. Publisher does copy editing and publishes article. Publishers acknowledge that their costs per article are under $5,000.
10. Publisher sells subscriptions to research libraries, which ultimately are largely government funded.

“In other words,” Band concludes, “the public invests $500,000 in the creation of the article, and the publisher invests under $5,000. Yet, the publisher recoups all the profits from the sale of the article. Profit margins for STM publishers exceed 40%.”

I’m inclined to share these concerns. It appears to be a classic example of regulatory controls—in this case, on information—creating supra-normal rents for a particular business sector.

My conclusion is a little different, though. You see, to me, what Band describes is a situation where researchers—who nobody is paying their own money to hire—are doing research that nobody is paying their own money to produce, which results in journal articles that nobody is paying their own money to read. Privatized profit from government-funded research is as anathema to me as the next open government advocate, but I would solve the problem by letting private ordering decide where research dollars go.

Is this a retrograde argument against research? Who could possibly be against research? Publicly funded research is like nutritious vegetables for a healthy modern society!

Well, I’m against researchers, research, and research results that nobody pays their own money for because it’s demanded by political actors responding to political cues. I would rather have research dollars meted out through private ordering, because then research dollars would go to where they’re most likely to produce the scientific and intellectual gains society actually wants.

Tradeoffs are ineluctable: Money spent on government research takes away from private research, or from other priorities such as reducing debt, or reducing taxes so I can spend my money on things like donating to charity or to the impoverished individual of my choice.

Open Government Research—or Maybe Private Ordering is a post from Cato @ Liberty - Cato Institute Blog

The New York Times recently ran a story portraying the Gates Foundation as the puppeteer of American education policy, bribing or bullying scholars and politicians into dancing as it desires. Rick Hess, of the American Enterprise Institute, feels that the story misrepresented his position on the potentially corrupting influence of foundations, making it sound as though he were referring to the Gates Foundation in particular when in fact he was referring to the impact of foundations generally.

Hess told the Times, among other things, that

As researchers, we have a reasonable self-preservation instinct. There can be an exquisite carefulness about how we’re going to say anything that could reflect badly on a foundation. We’re all implicated.

Next Monday, the Cato Institute will publish a study titled: “The Other Lottery: Are Philanthropists Backing the Best Charter Schools?” In it, I empirically answer the titular question by comparing the academic performance of California’s charter school networks to the level of grant funding they have received from donors over the past decade. The results tell us how much we should rely on the pairing of philanthropy and charter schools to identify and replicate the best educational models. Considerable care went into the data collection and regression model. As for the description of the findings, it’s as simple and precise as I could make it. I doubt it will be hailed as exquisite.

Does Scholar Self-Interest Corrupt Policy Research? is a post from Cato @ Liberty - Cato Institute Blog

It didn’t get a lot of attention, but in last week’s State of the Union address President Obama celebrated the spread of national curriculum standards that’s been fueled largely by the federal Race to the Top. Of course, he didn’t actually call them “national standards” because no one is supposed to think that these are de facto federal standards that states have been bribed into adopting. The point, though, was clear to those in the know:

Race to the Top is the most meaningful reform of our public schools in a generation. For less than one percent of what we spend on education each year, it has led over 40 states to raise their standards for teaching and learning. These standards were developed, not by Washington, but by Republican and Democratic governors throughout the country.

Despite the celebration of national standards by both the President and lots of other supporters, there is essentially zero evidence that such standards will produce better educational outcomes.  Much of that has to do with the reality of democratically controlled, government education: Those who would be held accountable for getting kids to high standards have the most clout in education politics, and they naturally fight tough standards. It also has a lot to do with human reality: All kids are different. It’s an inescapable observation for anyone who has ever encountered more than one child, but the national-standards crowd prefers to ignore it.

Maybe science will help them see the light. According to the BBC, new research comparing identical and fraternal twins reveals that genetics — something that exists before standards and schooling — has a lot to do with how much and how quickly someone learns:

The researchers examined the test results of 12-year-old twins – identical and fraternal – in English, maths and science.

They found the identical twins, who share their genetic make-up, did more similarly in the tests than the fraternal twins, who share half their genetic make-up.

The report said: “The results were striking, indicating that even when previous achievement and a child’s general cognitive ability are both removed, the residual achievement measure is still significantly influenced by genetic factors.”

In light of this confirmation of the obvious, isn’t it clear that a single timeline for what all children should know and when they should know it makes little sense? And doesn’t it point to the best system being one that gives kids individualized attention?

Of course it does, but that would require “experts” of all stripes to stop trying to impose their solutions on all children. It would also, ultimately, necessitate a system in which parents would choose what’s best for their children, and educators would specialize in all sorts of different curricula, delivery mechanisms, and teaching techniques.  

Unfortunately, few in the education policy world are willing to adopt that utterly logical — but power relinquishing — solution.

Science: ‘All Kids Different’ is a post from Cato @ Liberty - Cato Institute Blog

An oft heard explanation for some of the weakness facing our economy, particularly investment and hiring, is that firms are concerned about policy uncertainty coming from Washington, be it health care, financial regulation, labor regulation, etc.  For the most part, those arguments have been based upon anecdote or theory (see Bernanke’s 1983 QJE piece), with some difficulty finding strong empirical support either way.  A forthcoming paper in the Journal of Finance helps to shed some light on the question, by providing more generalized estimates of the impact of electoral uncertainty on investment decisions.

The authors examine whether elections, particularly those that are close, have an impact on corporate investment.  The logic behind the research: “if an election can potentially result in a bad outcome from a firm’s perspective, the option value of waiting to invest increases and the firm may rationally delay investment until some or all of the policy uncertainty is resolved.”  Their sample is national elections in 48 countries from 1980 to 2005.  These almost all developed, industrialized economies, as the unit of observation is a publicly traded firm.  US companies constitute a large portion of their sample.

The results:  holding all else equal, in terms of the economy and investment opportunities, elections  “reduce investment expenditures by an average of 4.8%.”  That’s a substantial hit to investment.  The results are even larger when the incumbent is viewed as “market-friendly.”  Of course one needs to be cautious in applying these results to non-election year political uncertainty.  There are also reasons, some of which are touched upon by the authors, that political uncertainty in the US may have either larger or smaller effects.  So while we might not know the exact magnitudes, I think its safe to say that the notion that political uncertainty depresses investment has both empirical and theoretical support (as well as a few anecdotes).

Political Uncertainty and Investment: Empirical Results is a post from Cato @ Liberty - Cato Institute Blog

Today is the 40th anniversary of Earth Day, a time to highlight and discuss ways to work toward a cleaner planet. Cato’s energy and environment research promotes policies that would help protect the environment without sacrificing economic liberty, goals that are mutually supporting, not mutually exclusive.

• Why we should thank capitalism for environmental gains: “It is businessmen — not bureaucrats or environmental activists — who deserve most of the credit for the environmental gains over the past century and who represent the best hope for a Greener tomorrow.”

• Finding the right balance: “Today, America’s environment is cleaner—and Earth Day has indeed helped ensure that. …We should renew our promise to keep the environment clean—without adding to human misery or stalling improvements in the human condition.”

• Want clean air? Try this.

• Is high-speed rail really an environmentally friendly alternative to driving and air travel? “Planners have predicted that a proposed line in Florida would use more energy and emit more of some pollutants than all of the cars it would take off the road.”

Earth Day Links is a post from Cato @ Liberty - Cato Institute Blog

• Progressives are outraged that the Supreme Court overturned limits on corporate political advertising last month. Here’s why they should be rejoicing.

• Policy forum today at Cato: “Will the Senate Health Care Bill Keep the Poor Poor?” Click here to watch live from 12:00-1:30 PM EST.

• Idea of the day: Cut the Commerce Department to boost real business.

• Harvard economist Jeffrey Miron: “Economists find weak or contradictory evidence that higher government spending spurs the economy. Substantial research, however, does find that tax cuts stimulate the economy and that fiscal adjustments—attempts to reduce deficits by raising taxes or lowering expenditure—work better when they focus on tax cuts.”

• Cato’s Ilya Shapiro wrapping up daily dispatches from the Winter Olympics in Vancouver. More here.

• Podcast: “How Many Libertarians?” featuring David Boaz.

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

In a recent Cato study, “The Libertarian Vote in the Age of Obama,”  authors David Boaz and David Kirby found that libertarian voters, who make up about 14 percent of the electorate, are a leading indicator of how independents will cast their ballots.

Appearing on Freedom Watch earlier this week, Boaz explained the results of the study, and what it means for the next election. Watch:

How Will the Independents Vote? is a post from Cato @ Liberty - Cato Institute Blog

Cato experts put some of President Obama’s core State of the Union claims to the test. Here’s what they found.

THE STIMULUS

Obama’s claim:

The plan that has made all of this possible, from the tax cuts to the jobs, is the Recovery Act. That’s right — the Recovery Act, also known as the Stimulus Bill. Economists on the left and the right say that this bill has helped saved jobs and avert disaster.

Back in reality: At the outset of the economic downturn, Cato ran an ad in the nation’s largest newspapers in which more than 300 economists (Nobel laureates among them) signed a statement saying a massive government spending package was among the worst available options. Since then, Cato economists have published dozens of op-eds in major news outlets poking holes in big-government solutions to both the financial system crisis and the flagging economy.

CUTTING TAXES

Obama’s claim:

Let me repeat: we cut taxes. We cut taxes for 95 percent of working families. We cut taxes for small businesses. We cut taxes for first-time homebuyers. We cut taxes for parents trying to care for their children. We cut taxes for 8 million Americans paying for college. As a result, millions of Americans had more to spend on gas, and food, and other necessities, all of which helped businesses keep more workers.

Back in reality: Cato Director of Tax Policy Studies Chris Edwards: “When the president says that he has ‘cut taxes’ for 95 percent of Americans, he fails to note that more than 40 percent of Americans pay no federal incomes taxes and the administration has simply increased subsidy checks to this group. Obama’s refundable tax credits are unearned subsidies, not tax cuts.”

Visit Cato’s Tax Policy Page for much more on this.

SPENDING FREEZE

Obama’s claim:

Starting in 2011, we are prepared to freeze government spending for three years.

Back in reality: Edwards: “The president’s proposed spending freeze covers just 13 percent of the total federal budget, and indeed doesn’t limit the fastest growing components such as Medicare.

“A better idea is to cap growth in the entire federal budget including entitlement programs, which was essentially the idea behind the 1980s bipartisan Gramm-Rudman-Hollings law. The freeze also doesn’t cover the massive spending under the stimulus bill, most of which hasn’t occurred yet. Now that the economy is returning to growth, the president should both freeze spending and rescind the remainder of the planned stimulus.”

Plus, here’s why these promised freezes have never worked in the past and a chart illustrating the fallacy of Obama’s spending claims.

JOB CREATION

Obama’s claim:

Because of the steps we took, there are about two million Americans working right now who would otherwise be unemployed. 200,000 work in construction and clean energy. 300,000 are teachers and other education workers. Tens of thousands are cops, firefighters, correctional officers, and first responders. And we are on track to add another one and a half million jobs to this total by the end of the year.

Back in reality: Cato Policy Analyst Tad Dehaven: “Actually, the U.S. economy has lost 2.7 million jobs since the stimulus passed and 3.4 million total since Obama was elected. How he attributes any jobs gains to the stimulus is the fuzziest of fuzzy math. ‘Nuff said.”

State of the Union Fact Check is a post from Cato @ Liberty - Cato Institute Blog

A day after it was released, here’s a roundup of how the mainstream media are covering the HHS study showing that America’s $100 billion plus investment in Head Start is a failure:

[...crickets...]

Nada. Zilch. Rien du tout, mes amis.

That’s based on a Google News search for ["Head Start" study]. The only media organs to touch on this topic so far have been blogs: Jay Greene’s, The Heritage Foundation’s, the Independent Women’s Forum, and the one you’re reading right now.

Okay. There was one exception. According to Google News, one non-blog — with a print version no less — covered this story so far. The NY Times? The Washington Post? Nope: The World, a Christian news magazine. And they actually did their homework, linking to this recent and highly relevant review of the research on pre-K program impacts.

And for those other publications in the MSM still standing at the edge of the pool: the water’s warm folks, c’mon in.

What’s really interesting, though, is that the HHS had the moral fibre to actually issue a press release about this damning study. That showed courage — and a certain panache. I particularly liked this, from HHS Secretary Kathleen Sebelius: “Research clearly shows that Head Start positively impacts the school readiness of low-income children.”

Umm, yes Ms. Secretary, but the same research shows those effects vanish by the end of first grade. I guess that information is on a need-to-not-know basis. The public needs to not know about it or the administration hasn’t got a snowball’s chance in Kauai of getting American tax payers to throw another $100 billion or so at government pre-K, as President Obama is so very keen to do.

Update:

In my original review of the coverage on this story I missed the blog that first broke the story: Early Ed Watch at the New America Foundation. One thing that distinguishes New America’s supporters of big government pre-k programs from those in the Obama administration is that the former have a good grasp of the implications of this study, writing that: “The next few weeks are probably going to be rocky ones for the Head Start community. Results released today from the Impact Study show that children’s gains from participating in Head Start, documented in a 2005 installment of the study, do not last through the end of 1st grade.”

But if the folks at the NAF recognize this reality, that begs an important question: will they now redirect their efforts to the support of programs whose benefits for disadvantaged children actually grow in magnitude the longer kids stay in school, or will they continue to push for programs like Head Start that have been proven costly failures?

How the Media Are Covering ‘Head Start’s’ Failure is a post from Cato @ Liberty - Cato Institute Blog

According to sources within HHS cited by Heritages’ Dan Lips, a congressionally mandated report on the persistence of academic effects from the federal Head Start program was completed in draft form in 2008, but, nearly two years later, has not seen the light of day. A further follow-up report, to have been released in 2009 and covering persistence of effects through the 3rd grade, has also failed to materialized. Lips’ sources say the draft they saw in ’08 showed no lasting effects.

This timeline meshes with what I was told in a July, 2008 e-mail exchange with a researcher familiar with the studies. The 1st grade report was indeed expected to be completed that summer — one and a half years ago. So where is it?

Could it be, as Lips’ sources seem to imply, that its results were not flattering to the very expensive federal preschool program and that this is not something HHS officials want the public to know? There’s one way to find out:  HHS, release the studies.

This is all rather important, what with the Obama administration seeking to lavish many additional billions on large-scale government pre-K, despite the paucity of results we’ve seen from such programs to date.

Has HHS Buried Reports on ‘Head Start’? is a post from Cato @ Liberty - Cato Institute Blog

• Whether you’re insured, uninsured, get health insurance on your own or through an employer, own a small business or work for someone else,  this is what the health care bill means for you.

• An update on the hidden taxes in the health care bill.

• Why Obama should order the DEA to make more pot available for medical research.

• The U.S. Constitution mentions only three federal crimes (treason, piracy, and counterfeiting). Today, there are more than 4,000.

• Podcast: “Myths of Health Care Reform.”

Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog

The final guidelines for the Administration’s “Race to the Top” education reform program have now been released. It’s a system that stimulates competition between the states to produce results that the customer (Secretary Duncan) wants, using financial incentives. Déjà vu, anyone?

It’s as though Arne Duncan recognizes the merits of free market forces, but rather than faithfully reproducing them in the field of education, he’s decided to give us his own reimagining of them.

Here’s the problem. There are already 25 years of scientific research comparing real free education markets to traditional public school systems. It overwhelmingly finds that markets do a better job of serving families. But we have no evidence at all that Secretary Duncan’s newly invented system will do anyone any good.

So why go to all this trouble to reinvent the wheel, when the Secretary’s own Department of Education has found that an on-going federal private school choice program—which gets much closer to a genuine education marketplace—is raising students’ reading ability by two grade levels after just 3 years of participation?

Arne Duncan, Secretary of Wheel Reinvention is a post from Cato @ Liberty - Cato Institute Blog

• Three cheers for divided government: “Since the start of the Cold War, we’ve had only a dozen years of real fiscal restraint” …And all of them occurred when the White House and Congress were held by opposite parties.

• Well here’s an idea: Only pay for health care that works.

• The case against tort reform in health care.

• Video: The authors of two new Ayn Rand biographies discuss their work and research.

• Podcast: “Ayn Rand and the World She Made“

Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog

In an exchange I had with Charles Murray earlier this month, he complained that there was no bulletproof scientific research documenting miraculous improvement in student achievement attributable to great schools like those of Ben Chavis.

At the time, that objection was beside my point, which is that there is copious evidence that competitive market education systems yield very substantial (if not “miraculuous”) improvements over the status quo government monopoly. We don’t need miracles to prove that there is a much better way of organizing and funding schools.

But that wasn’t enough for Ben Chavis. He called yesterday to pass along a proposition to Charles: come perform the research yourself. In fact, Ben offered to put Charles up in his own house.

I don’t know if Charles will go for this, but I wish he would (or find a grad student who will). And here’s why: I think Charles is so skeptical of the results of great schools and teachers because he has not come across any mechanism in his studies that could adequately explain those results. But I contend that there is such a mechanism: a school culture so strong and conducive to academic effort that it can overcome the absence of an academically supportive culture in the home.

If you read Jay Mathews’ wonderful book Escalante, or Ben’s Crazy Like a Fox, this becomes immediately clear. The school environment in these rare cases becomes a much more powerful influence on students’ willingness to work and expectations of success than is normally the case. These great schools tap into a fundamental human desire to belong to a team that offers them support and to which they feel an obligation to be supportive in return. It’s the same impulse that leads soldiers to put their lives on the line for their buddies in combat, and that sustains the insane work ethic in high tech startups.

This is one reason why free enterprise education systems excel all others: they offer the greatest freedom and most powerful incentives for excellent schools to replicate their cultures on a grand scale.

Ben Chavis to Charles Murray: “Bring it” is a post from Cato @ Liberty - Cato Institute Blog

Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers.  In this edition: Section 206, roving wiretap authority.

The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?

To understand the reasons for potential concern, we need to take a little detour into the differences between electronic surveillance warrants under Title III and FISA. The Fourth Amendment imposes two big requirements on criminal warrants: “probable cause” and “particularity”. That is, you need evidence that the surveillance you’re proposing has some connection to criminal activity, and you have to “particularly [describe] the place to be searched and the persons or things to be seized.” For an ordinary non-roving wiretap, that means you show a judge the “nexus” between evidence of a crime and a particular “place” (a phone line, an e-mail address, or a physical location you want to bug). You will often have a named target, but you don’t need one: If you have good evidence gang members are meeting in some location or routinely using a specific payphone to plan their crimes, you can get a warrant to bug it without necessarily knowing the names of the individuals who are going to show up. On the other hand, though, you do always need that criminal nexus: No bugging Tony Soprano’s AA meeting unless you have some reason to think he’s discussing his mob activity there. Since places and communications facilities may be used for both criminal and innocent persons, the officer monitoring the facility is only supposed to record what’s pertinent to the investigation.

When the tap goes roving, things obviously have to work a bit differently. For roving taps, the warrant shows a nexus between the suspected crime and an identified target. Then, as surveillance gets underway, the eavesdroppers can go up on a line once they’ve got a reasonable belief that the target is “proximate” to a location or communications facility. It stretches that “particularity” requirement a bit, to be sure, but the courts have thus far apparently considered it within bounds. It may help that they’re not used with great frequency: Eleven were issued last year, all to state-level investigators, for narcotics and racketeering investigations.

Surveillance law, however, is not plug-and-play. Importing a power from the Title III context into FISA is a little like dropping an unfamiliar organism into a new environment—the consequences are unpredictable, and may well be dramatic. The biggest relevant difference is that with FISA warrants, there’s always a “target”, and the “probable cause” showing is not of criminal activity, but of a connection between that target and a “foreign power,” which includes terror groups like Al Qaeda. However, for a variety of reasons, both regular and roving FISA warrants are allowed to provide only a description of the target, rather than the target’s identity. Perhaps just as important, FISA has a broader definition of the “person” to be specified as a “target” than Title III. For the purposes of criminal wiretaps, a “person” means any “individual, partnership, association, joint stock company, trust, or corporation.” The FISA definition of “person” includes all of those, but may also be any “group, entity, …or foreign power.” Some, then, worry that roving authority could be used to secure “John Doe” warrants that don’t specify a particular location, phone line, or Internet account—yet don’t sufficiently identify a particular target either. Congress took some steps to attempt to address such concerns when they reauthorized Section 206 back in 2005, and other legislators have proposed further changes—which I’ll get to in a minute. But we actually need to understand a few more things about the peculiarities of FISA wiretaps to see why the risk of overbroad collection is especially high here.

In part because courts have suggested that the constraints of the Fourth Amendment bind more loosely in the foreign intelligence context, FISA surveillance is generally far more sweeping in its acquisition of information. In 2004, the FBI gathered some 87 years worth of foreign language audio recordings alone pursuant to FISA warrants. As David Kris (now assistant attorney general for the Justice Department’s National Security Division) explains in his definitive text on the subject, a FISA warrant typically “permits aquisition of nearly all information from a monitored facility or a searched location.” (This may be somewhat more limited for roving taps; I’ll return to the point shortly.) As a rare public opinion from the FISA Court put it in 2002: “Virtually all information seized, whether by electronic surveillance or physical search, is minimized hours, days, or weeks after collection.” The way this is supposed to be squared with the Fourth Amendment rights of innocent Americans who may be swept up in such broad interception is via those “minimization” procedures, employed after the fact to filter out irrelevant information.

That puts a fairly serious burden on these minimization procedures, however, and it’s not clear that they well bear it. First, consider the standard applied. The FISA Court explains that “communications of or concerning United States persons that could not be foreign intelligence information or are not evidence of a crime… may not be logged or summarized” (emphasis added). This makes a certain amount of sense: FISA intercepts will often be in unfamiliar languages, foreign agents will often speak in coded language, and the significance of a particular statement may not be clear initially. But such a deferential standard does mean they’re retaining an awful lot of data. And indeed, it’s important to recognize that “minimization” does not mean “deletion,” as the Court’s reference to “logs” and “summaries” hints. Typically intercepts that are “minimized” simply aren’t logged for easy retrieval in a database. In the 80s, this may have been nearly as good for practical purposes as deletion; with the advent of powerful audio search algorithms capable of scanning many hours of recording quickly for particular words or voices, it may not make much difference. And we know that much more material than is officially “retained” remains available to agents. In the 2003 case U.S. v. Sattar, pursuant to FISA surveillance, “approximately 5,175 pertinent voice calls .. were not minimized.”  But when it came time for the discovery phase of a criminal trial against the FISA targets, the FBI “retrieved and disclosed to the defendants over 85,000 audio files … obtained through FISA surveillance.”

Cognizant of these concerns, Congress tried to add some safeguards in 2005 when they reauthorized the PATRIOT Act. FISA warrants are still permitted to work on descriptions of a target, but the word “specific” was added, presumably to reinforce that the description must be precise enough to uniquely pick out a person or group. They also stipulated that eavesdroppers must inform the FISA Court within ten days of any new facility they eavesdrop on, and explain the “facts justifying a belief that the target is using, or is about to use, that new facility or place.”

Better, to be sure; but without access to the classified opinions of the FISA Court, it’s quite difficult to know just what this means in practice. In criminal investigations, we have a reasonable idea of what the “proximity” standard for roving taps entails. Maybe a target checks into a hotel with a phone in the room, or a dealer is observed to walk up to a pay phone, or to buy a “burner.” It is much harder to guess how the “is using or is about to use” standard will be construed in light of FISA’s vastly broader presumption of sweeping up-front acquisition. Again, we know that the courts have been satisfied to place enormous weight on after-the-fact minimization of communications, and it seems inevitable that they will do so to an even greater extent when they only learn of a new tap ten days (or 60 days with good reason) after eavesdropping has commenced.

We also don’t know how much is built into that requirement that warrants name a “specific” target, and there’s a special problem here when surveillance roves across not only facilities but types of facility. Suppose, for instance, that a FISA warrant is issued for me, but investigators have somehow been unable to learn my identity. Among the data they have obtained for their description, however, are a photograph, a voiceprint from a recording of my phone conversation with a previous target, and the fact that I work at the Cato Institute. Now, this is surely sufficient to pick me out specifically for the purposes of a warrant initially meant for telephone or oral surveillance.  The voiceprint can be used to pluck all and only my conversations from the calls on Cato’s lines. But a description sufficient to specify a unique target in that context may not be sufficient in the context of, say, Internet surveillance, as certain elements of the description become irrelevant, and the remaining threaten to cover a much larger pool of people. Alternatively, if someone has a very unusual regional dialect, that may be sufficiently specific to pinpoint their voice in one location or community using a looser matching algorithm (perhaps because there is no actual recording, or it is brief or of low quality), but insufficient if they travel to another location where many more people have similar accents.

Russ Feingold (D-WI) has proposed amending the roving wiretap language so as to require that a roving tap identify the target. In fact, it’s not clear that this quite does the trick either. First, just conceptually, I don’t know that a sufficiently precise description can be distinguished from an “identity.” There’s an old and convoluted debate in the philosophy of language about whether proper names refer directly to their objects or rather are “disguised definite descriptions,” such that “Julian Sanchez” means “the person who is habitually called that by his friends, works at Cato, annoys others by singing along to Smiths songs incessantly…” and so on.  Whatever the right answer to that philosophical puzzle, clearly for the practical purposes at issue here, a name is just one more kind of description. And for roving taps, there’s the same kind of scope issue: Within Washington, DC, the name “Julian Sanchez” probably either picks me out uniquely or at least narrows the target pool down to a handful of people. In Spain or Latin America—or, more relevant for our purposes, in parts of the country with very large Hispanic communities—it’s a little like being “John Smith.”

This may all sound a bit fanciful. Surely sophisticated intelligence officers are not going to confuse Cato Research Fellow Julian Sanchez with, say, Duke University Multicultural Affairs Director Julian Sanchez? And of course, that is quite unlikely—I’ve picked an absurdly simplistic example for purposes of illustration. But there is quite a lot of evidence in the public record to suggest that intelligence investigations have taken advantage of new technologies to employ “targeting procedures” that do not fit our ordinary conception of how search warrants work. I mentioned voiceprint analysis above; keyword searches of both audio and text present another possibility.

We also know that individuals can often be uniquely identified by their pattern of social or communicative connections. For instance, researchers have found that they can take a completely anonymized “graph” of the social connections on a site like Facebook—basically giving everyone a name instead of a number, but preserving the pattern of who is friends with whom—and then use that graph to relink the numbers to names using the data of a differentbut overlapping social network like Flickr or Twitter. We know the same can be (and is) done with calling records—since in a sense your phone bill is a picture of another kind of social network. Using such methods of pattern analysis, investigators might determine when a new “burner” phone is being used by the same person they’d previously been targeting at another number, even if most or all of his contacts have alsoswitched phone numbers. Since, recall, the “person” who is the “target” of FISA surveillance may be a “group” or other “entity,” and since I don’t think Al Qaeda issues membership cards, the “description” of the target might consist of a pattern of connections thought to reliably distinguish those who are part of the group from those who merely have some casual link to another member.

This brings us to the final concern about roving surveillance under FISA. Criminal wiretaps are always eventually disclosed to their targets after the fact, and typically undertaken with a criminal trial in mind—a trial where defense lawyers will pore over the actions of investigators in search of any impropriety. FISA wiretaps are covert; the targets typically will never learn that they occurred. FISA judges and legislators may be informed, at least in a summary way, about what surveillance was undertaken and what targeting methods were used, but especially if those methods are of the technologically sophisticated type I alluded to above, they are likely to have little choice but to defer to investigators on questions of their accuracy and specificity. Even assuming total honesty by the investigators, judges may not think to question whether a method of pattern analysis that is precise and accurate when applied (say) within a single city or metro area will be as precise at the national level, or whether, given changing social behavior, a method that was precise last year will also be precise next year. Does it matter if an Internet service initially used by a few thousands—including, perhaps, surveillance targets—comes to be embraced by millions? Precisely because the surveillance is so secretive, it is incredibly hard to know which concerns are urgent and which are not really a problem, let alone how to think about addressing the ones that merit some legislative response.

I nevertheless intend to give it a shot in a broader paper on modern surveillance I’m working on, but for the moment I’ll just say: “It’s tricky.”  What is absolutely essential to take away from this, though, is that these loose and lazy analogies to roving wiretaps in criminal investigations are utterly unhelpful in thinking about the specific problems of roving FISA surveillance. That investigators have long been using “these” powers under Title III is no answer at all to the questions that arise here. Legislators who invoke that fact as though it should soothe every civil libertarian brow are simply evading their responsibilities.

PATRIOT Powers: Roving Wiretaps is a post from Cato @ Liberty - Cato Institute Blog

A couple of days ago the Common Core State Standards Initiative released a new draft of its national, “college- and career-readiness” math and English curricular standards. The content of the standards isn’t of huge interest to me — the biggest dangers are in the implementation of standards, not the drafting — but what is of great interest is determining whether having national standards makes sense in the first place. Unfortunately, it appears that many standards fans couldn’t care less about that little concern.

To satisfy my interest, I’ve been delving into empirical work that might back claims that national standards are necessary for educational success, or just that they improve academic outcomes. And what have I found? As I laid out in a recent National Review Online op-ed, and argue today on the New York Times‘ “Room for Debate” blog, there’s hardly any such evidence. There is scant good research on national standards, and what there is largely ignores serious questions about the confounding impact of such factors as culture and changing educational attitudes.

This dearth of research explains why national standardizers are almost totally silent about evidence and instead defend their proposals with soundbites about high expectations for all kids, or the ”craziness” of having 50 state standards.  It also explains why they seem to be in a big hurry to get standards drafted, and why the Obama administration is already dangling billions of dollars in front of states to get them to “voluntarily” adopt whatever the CCSSI produces. Quite simply, were the public to find out that national standards are essentially an untested drug being slipped down their throats, they might object. And nothing, it seems, is more important to the national standards crowd than ensuring that that doesn’t happen.

Evidence, Please? is a post from Cato @ Liberty - Cato Institute Blog

A millennium or so ago, Steve Martin played a stadium with his stand-up act. He got the crowd of tens of thousands to repeat a series of statements in unison. My favorite, for sheer irony: “We Are all Individuals.”

But, the thing is, we are.

This is why I never cease to be amazed by disagreements like the one currently playing out between the curriculum groups “Common Core,” and “Partnership for 21st Century Skills.”

Is there really one curriculum that is right for every child in this nation of 300 million people? Really?

Rather than fighting a winner-take-all Shootout at the O.K. Curriculum, which is what our illustrious leaders seem to want, how about this peace-loving alternative: we let teachers teach whatever and however they want, and we let families choose and pay for whichever schools they think are best for their kids (with financial aid for those who need it).

‘Cause the thing is, a quarter century of econometric research is repeating, in Steve-Martin-Like unison that: educational freedom works.

Repeat after Me: “We Are All Individuals” is a post from Cato @ Liberty - Cato Institute Blog

I blogged this morning that the research shows higher public school spending slows the economy, and explained that this is because spending more on public schools doesn’t increase students’ academic performance. Some readers no doubt find that hard to accept. With them in mind, I present the following chart:

Spending vs. Achievement

If public schools had merely maintained the level of productivity they exhibited in 1970, Americans would enjoy a permanent $300 billion annual tax cut. Now THAT would stimulate economic growth.

A Picture Is Worth $300 Billion is a post from Cato @ Liberty - Cato Institute Blog