December 12, 2013 · 9:56 am

Don’t Tread on My Metadata

A much shorter version of my academic piece on the third-party doctrine has just been published on PJ Media. Here are the first three paragraphs. If you have time, please go read the rest, leave comments, share, etc. Any help you can give in getting the word out is greatly appreciated!

“Do you classify Edward Snowden — the former National Security Agency contractor contractor charged with espionage, and runner-up for Time‘s ‘Person of the Year’ — as a hero or a traitor? Your answer likely depends on your opinion of the NSA programs he helped publicize via his leaking of highly classified documents. In this week’s revelations, we learn that the NSA deploys agents to infiltrate online gaming communities, and that it uses the Google tracking cookies we thought were responsible only for that eerie and annoying targeted advertising. We also learned recently that the NSA collects ‘nearly 5 billion records a day on the whereabouts of cellphones around the world.’ Earlier this year, we learned that the NSA has been continuously collecting phone record ‘metadata’ of all Verizon customers for the last seven years. The NSA also accessed email and other forms of Internet communication — including Skype voice and video communications — via a secret program called Prism. Director of National Intelligence James Clapper described these programs as ‘acquiring’ information only about foreigners, and yet ’49-plus percent of the communications [intercepted and stored under the Prism program] might be purely among Americans….’

“Whatever you think of Snowden, his actions have drawn significantly more attention to the NSA’s intrusive programs. Now the question is: will anything be done about them?

“Proponents of the programs have noted that, although data collection is performed without probable cause or particularized suspicion, only transactional metadata, not the content of communications, is collected. Moreover, their proponents continue, these programs make it easier for the government to identify and track suspected terrorists, and therefore strike the right “balance” between privacy and security. In addition, some argue, the programs are perfectly legal: according to the ‘third-party doctrine,’ there is no ‘reasonable expectation of privacy’ in metadata we share with our phone companies, Internet service providers, etc., and the collection of metadata is authorized by the Patriot Act or the FISA Amendments Act.

“The applicability or purported constitutionality of these statutes is, I think, beside the point. The third-party doctrine itself is flawed and should be eliminated.

“In this article, I’ll first discuss the third-party doctrine, including its history and the types of cases to which is has been applied. Then I will propose a better way of dealing with cases typically thought to fall under this doctrine. Finally, I will use the common law of contract to answer the charge that eliminating the third-party doctrine will prevent government from using secret agents in law enforcement.”

Read the rest here.

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December 11, 2013 · 9:53 pm

Two Spoonfuls of Sugar to Make The Budget Deal News Go Down

In my last News Sandwich, I said I was skeptical about what could be achieved, today, by convening legislators for an Article V Convention to amend the Constitution.

There is, nonetheless, a lot that state legislatures can do to protect their citizens from our rights-trampling federal government. South Carolina, for its part, is poised to end Obamacare in its state. The Daily Caller reports that the “South Carolina Freedom of Health Care Protection Act” has already passed in the South Carolina House of Representatives, and is likely to pass in the GOP-controlled state Senate in January. The legislation contains several key provisions designed to counteract all effects of Obamacare, including a state income tax credit for any Obamacare fine paid, as well as a provision prohibiting any insurance company receiving Obamacare subsidies from operating in the state. The Caller’s Bruce Parker speculates that, should the bill be enacted and upheld as within the state’s power, which seems likely, South Carolina could serve as an example for other states eager to protect their citizens from the onerous burden of this unpopular legislation. Read more here.

I think we’d best focus on the good news coming out of state legislatures for a while. It seems that the House GOP–which many of us had hoped would use its power of the purse to keep the growth of government and spending in check–has agreed to a deal that former OMB director David Stockman describes as “the final surrender of the House Republican leadership.” The House “leadership” apparently agreed with the rest of the statists in Washington that even the modest “sequester” spending cuts were too much for them to stomach. Instead, says the Washington Post, we’ll get “roughly $63 billion in other policies, including fee increases for airline travelers, cuts to federal-worker and military pensions and higher payments for federal insurance of private pensions,” etc. Senators Ted Cruz and Rand Paul have come out against the deal, and even Mitch McConnell–no doubt in a desperate effort to save his seat–has said he’d vote against it. But all of that is just showboating with a Democratic majority in the Senate. David Stockman says that what this budget agreement means, practically speaking, is that there won’t be another opportunity to significantly reduce spending until 2020.

After that depressing bit of news, we may all need a bit of retail therapy (assuming we can still afford it). A trip to the mall is normally the best way to get instant gratification, but that may change in the not-too-distant future. In an earlier News Sandwich I discussed Jeff Bezos’s plans to use drone technology to deliver Amazon.com orders in as little as 30 minutes. According to the Wall Street Journal, DHL is also testing its own version of a speedy drone delivery service, increasing the chances that we will eventually get to see, with our own eyes, little flying robots delivering packages to our door. Drone deliveries, however, as we learned from Bezos, won’t be a reality for at least a few years, thanks to our federal government prohibiting any for-profit use of drones until the FAA gets around to writing the “necessary regulations.”

In the meantime, the Wall Street Journal reports that some retailers (Home Depot, Amazon, and eBay among them) are planning to expand their offerings of same-day deliveries. No, not 30-minute deliveries, and no, not carried by cute flying robots, but deliveries of wanted and needed items within a matter of hours. I am often amazed and grateful that companies are continuing to find ways, even in this dreadful economy, to make money by improving their services (and our lives).

According to the Wall Street Journal piece some of these companies, along with FedEx and UPS, are betting that, once you have same-day delivery service available, there won’t be much value added by offering a 30-minute delivery service. My advice to them: ignore the flying-robot-cuteness-factor at your peril.

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December 10, 2013 · 9:14 am

An “It’s Earlier Than You Think” News Sandwich

About 100 state legislators met at Mount Vernon last weekend to discuss the possibility of having an Article V Convention for Amending the Constitution. According to Garret Humbertson at Red Millennial (HT Bosch Fawstin), there has been interest among state legislators in having a convention for some time. But if you’re like me, you’ve heard about this procedure only recently, thanks to Mark Levin’s latest book, The Liberty Amendments. Levin and others have come to the conclusion–with which I agree–that Washington has become so corrupt, so statist in its basic orientation, that the only practical, nonviolent means of steering the country away from totalitarianism is a convention initiated by the state legislatures. Apparently an application for a convention must be passed by 34 state legislatures. With legislative representatives from 32 states traveling to meet at Mount Vernon over the weekend, it sounds like such a convention might soon become a reality.

It’s great to see so many people fed up with our out-of-control government; and it’s especially good to see them wanting to take practical action to fix the problem. I wonder, however, whether most of those involved are intellectually armed to the extent necessary to do what really needs to be done. For example, the article at Red Millennial names “term limits” and a “balanced budget amendment” as two issues around which they hope to form a bipartisan consensus. Term limits may be the right way to go, especially given the pervasiveness of cronyism among the career politicians. But term limits are merely procedural. A balanced budget amendment may help curb our government’s excessive spending; but it may also just encourage politicians to increase taxes to fund that spending.

I look at it this way: The assembled legislators say their goal is to propose amendments that can attract bipartisan support. Practically, they have to do this, because they need 34 state legislatures to apply to have the convention, and then they need 38 legislatures to pass the amendments for them to become effective. This means that the amendments resulting from such a convention, were such a convention to be held today, would likely be a lot worse than any amendments held as ideals by today’s best politicians. And what sort of amendments would those be?

Yaron Brook and Steve Simpson of ARI just published a revealing article over at The Daily Caller discussing Mike Lee’s views on income inequality. Lee, who I had thought was one of the most promising politicians in Washington, turns out to think about the income inequality issue much as our president does. Here is Mike Lee, first quoted and then interpreted by Brook and Simpson:

“For all America’s reputation for individualism and competition, our nation has from the beginning been built on a foundation of community and cooperation.” Our political system is distinctive, according to Lee, not because it recognizes that we are independent individuals, but because it assumes that we are all dependent on one another.

Even though Lee says he opposes government enforced charity and cooperation, Brook and Simpson continue, “if you concede that wealth, success, and prosperity come from ‘community and cooperation’ rather than individual initiative, why shouldn’t government force us to ‘give back’?” Read the entire article here.

If Mike Lee is one of today’s best politicians, and even he holds views incompatible with a consistent defense of our rights to life, liberty and the pursuit of happiness, then it is too soon for a convention to amend the constitution–particularly a “bipartisan” convention–to do much good.

The good news is that the proper ideas are starting to be heard and have an influence. The Daily Caller piece by Brook and Simpson is an example (I encourage everyone reading this to go over there and comment on the piece, in order to help it have the most impact). Brook also spoke to The New York Meeting last night on income inequality, and I gather there were several politicians in attendance including, if I heard Brook correctly, Senator Ron Johnson. Brook will also be speaking on the same topic this evening in Washington, D.C.

Until our politicians can address issues like income inequality as Brook does, no amendments they propose will be able to inoculate us against totalitarianism. Let’s hope that Brook’s and others’ efforts to educate politicians and the public pay off sooner rather than later.

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