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The Federal Government and American Indians

Cato Op-Eds - Mon, 09/29/2014 - 14:54

Chris Edwards

As research for this essay on the Bureau of Indian Affairs, I visited the Smithsonian National Museum of the American Indian (NMAI). I found virtually no information useful for my project.

I stopped by the museum information desk on the way out and said something to the effect, “There is very little here about the relationship between Indians and the federal government, yet that relationship is central to the story of American Indians over the last two centuries.” A few months ago, I emailed a similar complaint to the head of the NMAI, and he did kindly respond to me.

The museum has now taken a big step toward fixing the problem with its new exhibit about the history of treaties between tribes and the federal government. It’s a good exhibit, telling some of the stories about how the government deceived and cheated the Indians again and again, depriving them of their lands, resources, and freedom.

The general topic is interesting to me because it illustrates numerous libertarian themes, including the arrogance and dishonesty of federal officials, the eagerness of officials to substitute their own goals for individual freedom, government corruption, the failure of top-down planning from Washington, and the inability of hand-outs to create lasting prosperity.

As I discuss in my essay, there has been good news on Indian reservations in recent decades. But the federal government continues to fail in creating the legal structure needed so that people on reservations can prosper. One long-standing problem is the very poor functioning of law enforcement. In a story today about Indian tribes in North Dakota, the Washington Post says:

Investigating crime on Fort Berthold is more difficult than most places because the reservation sits in six different counties each with its own sheriff — some of whom do not have a good relationship with the tribe, according to tribal members. If the victim and suspect are both Native American, the tribal police or the FBI handles the arrest. But if the suspect is not Native American, in most cases the tribal police can detain the suspect but then have to call the sheriff in the county where the crime occurred. Sometimes they have to wait several hours before a deputy arrives to make the arrest. In a murder case, the state or the FBI might be involved, depending on the race of the victim and the suspect.

“There are volumes of treatises on Indian law that are written about this stuff,” Purdon said. “It’s very complicated. And we’re asking guys with guns and badges in uniforms at 3:30 in the morning with people yelling at each other to make these decisions — to understand the law and be able to apply it.”

I don’t know what the best solution to these particular problems is. I do know that the U.S. Constitution empowered the federal government to engage with the tribes, and that Congress should spend more time tackling such fundamental issues. Unfortunately, most members of Congress focus most of their efforts on hundreds of programs not authorized by the Constitution.

Anyway, kudos to the Washington Post for doing a series on justice issues in Native American communities. And kudos to the NMAI for informing the public about the government’s often appalling behavior over two centuries of dealing with the first Americans.

Categories: Policy Institutes

The Real Costs of HealthCare.gov

Cato Op-Eds - Mon, 09/29/2014 - 12:05

Nicole Kaeding

In May, Department of Health and Human Services (HHS) Secretary Sylvia Burwell testified to Congress that costs for building HealthCare.gov were $834 million. New research from Bloomberg Government suggests that Burwell’s estimate represents a low-end estimate.

According to the new report, spending for HealthCare.gov has been an estimated $2.14 billion. Burwell’s estimates did not include numerous costs related to the project. For instance, she did not include the contract costs for processing paper applications, which are used as a backup. That contract cost $300 million.

Burwell’s figure also does not include spending at the IRS and other agencies related to ACA requirements. For instance, the IRS is required to provide real-time interfacing with HealthCare.gov to verify income and family size for insurance subsidy calculations. Those requirements cost $387 million.

Bloomberg also includes $400 million in costs that were excluded by HHS using creative accounting. When it wrote the ACA, Congress did not appropriate money to HHS for the construction of a federal exchange. Instead, it provided unlimited grants to states to construct their portals. When many states refused to construct their exchanges, HHS was forced to develop HealthCare.gov, but without a dedicated source of funding. HHS said it would need to “get creative” about funding options, leaving many wondering where HHS would eventually get the money. According to Bloomberg, HHS shifted money around to finance the construction of HealthCare.gov, using a number of existing contracts to finance the website’s construction.

Finally, Bloomberg included $255 million more in costs than Burwell due to time period differences. Burwell’s costs were as of February 2014. Bloomberg included costs until August 20, 2014, and then projected the current level of spending forward to the end of the fiscal year, September 30th. But this means that their figures are likely conservative too because federal agencies often ramp up spending— particularly contract spending—as it closes out its fiscal year.

Implementing the ACA is a costly exercise; Bloomberg says the $2.14 billion for HealthCare.gov administration is only a small part of the full $73 billion costs of Obamacare since its passage in 2010. But the administration nonetheless owes taxpayers an accurate accounting for the costs of the system.

Categories: Policy Institutes

Halbig v. Burwell: House Oversight Committee Subpoenas IRS

Cato Op-Eds - Mon, 09/29/2014 - 12:03

Michael F. Cannon

This was a long time coming.

Those who follow Halbig v. Burwell and similar cases know the IRS stands accused of taxing, borrowing, and spending billions of dollars contrary to the clear language of federal law. The agency is quite literally subjecting more than 50 million individuals and employers to taxation without representation.

Congressional investigators have been trying to figure out how the IRS could write a rule that so clearly contradicts the plain language of the Patient Protection and Affordable Care Act. Unfortunately, the agency has been largely stonewalling their efforts to obtain documents relating the the development of the regulation challenged in the Halbig cases.

Fortunately, finally, last week the House Committe on Oversight and Government Reform used its subpoena power to demand the IRS turn over the documents that show what whent into the agency’s decision.

We’ll see if the IRS complies, or if another of the agency’s hard drives conveniently crashes.

I’ve got a fuller write-up over at Darwin’s Fool.

Categories: Policy Institutes

Democrats and Their Mansions, Again

Cato Op-Eds - Sat, 09/27/2014 - 16:03

David Boaz

Two articles in today’s Washington Post Real Estate section remind me of how off-target a Post political article was a couple of months ago. The House of the Week is Paul and Bunny Mellon’s Upperville, Va., estate, which features a 10,000-square-foot main house on 2,000 acres and is being offered for $70 million. The Mellons often entertained their friends John F. and Jacqueline Kennedy there. Bunny Mellon, the daughter of the man who cofounded the Warner-Lambert drug company, married the heir to the Mellon Bank fortune. Sadly, she made headlines late in her long life for her multi-million-dollar support of Sen. John Edwards’s presidential campaign, including money to cover up his extramarital affair.

Meanwhile, the feature article in the Real Estate section looks at “an American palace,” a 40,000-square-foot house (and you thought the Mellons were extravagant at 10,000 square feet!) in Potomac, Md., built by a businessman who started a company with a federal grant, built it on government contracts, and then sold it for hundreds of millions of dollars. Frank Islam says that “‘to whom much is given, much is expected.’ It’s our responsibility to give back and share.” And share he does, with the kind of people who made all that government largesse possible:

Since moving into their 14-bedroom, 23-bathroom estate in 2013, the homeowners have regularly staged events for the Democratic Party. They held a June dinner attended by Vice President Biden and a fundraiser for Sen. Al Franken (D-Minn.) this month. 

Islam and Driesman have hosted nearly all the region’s Democrats, including Maryland Gov. Martin O’Malley and Lt. Gov. Anthony Brown; Sens. Timothy M. Kaine of Virginia and Benjamin L. Cardin of Maryland; and Montgomery County Executive Isiah Leggett.

All of which reminded me of another Post story by a longtime reporter back in May, which turns out to have been about the very same mansion:

The Potomac estate of IT entrepreneur and philanthropist Frank Islam seemed more fitting for a Republican soiree than a Democratic fundraiser, some of Maryland’s top elected officials said Wednesday….

“There are not too many people who own homes like this who are great Democrats,” Sen. Benjamin L. Cardin (D-Md.) told the audience of about 400.

As I said at the time, “Democrats don’t have much trouble finding billionaires and mansions for fundraising events. Reporters shouldn’t act like it’s an unusual event.”  

A month after that Sen. Harry Reid declared in one of his tirades about billionaires in politics that the Democratic party “doesn’t have many billionaires.” (Or maybe he said “any billionaires”; the audio is unclear.) Politifact found plenty of billionaire donors to both parties. Whatever you think of many politics, reporters should stop recycling Democratic spin that big money is found on one side of the aisle.

 

Categories: Policy Institutes

Who Needs to Be More Flexible in the TPP talks? Hint: It's Not Japan.

Cato Op-Eds - Fri, 09/26/2014 - 12:27

K. William Watson

According to news reports, the United States and Japan have again failed to reach a bilateral agreement on lowering import barriers, a necessary prerequisite to completion of the 12-member Trans-Pacific Partnership (TPP) trade agreement. U.S. negotiators and business interests are quick to blame Japan for being reluctant to eliminate tariffs on a handful of highly traded agricultural products. In truth, though, the Japanese government has shown much greater commitment to the TPP and more willingness to take political risk than the United States. If the TPP falls apart, the blame will not lie with the Japanese.

The tariffs in question are what trade negotiators refer to as “sensitivities.” For every country in any trade negotiation, there are some trade barriers that are very difficult to lower because of the domestic political power of the businesses and industries that benefit from them. In Japan’s case these are agricultural tariffs (on rice, wheat, sugar, meat, and dairy) that are the bread and butter of Japan’s politically powerful farmers. Getting rid of sensitive barriers can be done, but it requires greater political will from both local and foreign leaders. Politicians take great risks when they oppose the interests of a powerful lobby.

I’ve noted before that criticisms of Japan’s stance are inappropriately antagonistic in light of how beneficial tariff elimination would be to Japan itself. The Japanese government know this, too. Earlier this week, Japanese Prime Minister Shinzo Abe spoke about how eager his government is to use the TPP talks as a way to enact broad agricultural reforms:

I consider it is indispensable for the future of Japanese agriculture to promote the domestic and international reforms in an integrated way.

To be honest with you, it is indeed an enormous task to suppress the resistance from the people who have been protected by vested interest. However, there is no future for them if they are not exposed to competition.

Rather than sympathize with their Japanese counterparts, however, the U.S. Trade Representative’s office continues to accuse Japan of expecting special treatment when all other TPP members are committed to more ambitious liberalization.

This attitude is incredibly hypocritical, considering that U.S. sensitivities are considered so far out of bounds that they aren’t even being discussed. Issues like agriculture subsidies, maritime shipping, antidumping reform, and government procurement aren’t on the table at all. Their absence is further evidence that it is the United States that lacks interest in taking political risk to advance the TPP.

But even if the U.S. government gets a pass on excluding all those non-tariff issues, it’s still falling short of Japan’s level of commitment. Consider this report from Japan’s Kyodo News Agency:

The United States has told Japan during their recent ministerial talks it will keep tariffs on automotive parts under a Pacific Rim free trade initiative, retracting its previous plan to scrap them immediately, negotiation sources said Thursday.

… The move is apparently out of consideration for the U.S. auto industry, which is a strong political support base for President Barack Obama’s Democratic Party, before U.S. midterm elections in November.

The United States is right to ask a lot from the other 11 countries in the TPP negotiations. But completing the agreement (not to mention getting it passed in Congress) is going to require the Obama administration to step on the toes of particular business groups and explain why the deal is good for the country as a whole. They could learn how it’s done by watching their Japanese counterparts.

Categories: Policy Institutes

Reagan and the Air Traffic Controllers

Cato Op-Eds - Fri, 09/26/2014 - 11:55

Chris Edwards

An obituary in the Washington Post for Robert Poli provides a chance to look back at a decisive moment in Ronald Reagan’s presidency. Poli was the head of the militant Professional Air Traffic Controllers Organization (PATCO), which launched an illegal strike in 1981. The Post describes the significance of the action:

The strike by PATCO, Reagan’s subsequent breaking of the union and the hiring of replacement workers were among the most significant job actions of their time, said Joseph A. McCartin, a professor at Georgetown University and a specialist on labor and social history. They “helped to define labor relations for the rest of the century and even into the 21st century,” he said, turning public sentiment away from striking as a legitimate labor tactic and further emboldening employers in the private sector to permanently replace striking workers.

Reagan’s hard line with the PATCO strikers six months into his presidency helped establish an image of him at home and overseas as a strong leader who would not be pushed around.

Here is the sequence of events: 

The PATCO work stoppage began Aug. 3, 1981, when at least 12,000 of the nation’s 17,000 air traffic controllers defied federal law and walked off their jobs, seeking higher pay, shorter hours, better equipment and improved working conditions in a long-simmering labor dispute.

There were widespread flight cancellations and delays, and 22 of the nation’s busiest airports were directed to reduce their scheduled flights by 50 percent.

That morning in the White House Rose Garden, Reagan declared, “I must tell those who failed to report for duty this morning they are in violation of the law, and if they don’t report for work within 48 hours, they have forfeited their jobs and will be terminated.”

Two days after the walkout began, Transportation Secretary Drew L. Lewis announced that at least 12,000 striking air traffic controllers had been terminated and would not be rehired “as long as the Reagan administration is in office.”

The Reagan administration stuck to its guns. The strikers were replaced by nonstriking controllers, air traffic supervisors, and military controllers until new controllers were trained.

The episode was a very gutsy move by Reagan, with beneficial consequences. But as I note here, the 1981 strike and response did not come out of nowhere—PATCO had been causing problems for years. In 1969, for example, about 500 members of PATCO called in “sick” in a protest, which caused major air service interruptions. And in 1970, about 3,000 members of PATCO took part in another “sickout,” or illegal strike, that caused chaos for the nation’s air traffic. Those sorts of union troubles continued during the 1970s, which set the stage for the Reagan showdown.

Today, the government’s air controllers have a different union organization, NATCA. Rather than illegal striking, these folks do what a growing number of groups in society are doing to advance their agendas: they lobby

Categories: Policy Institutes

Land Use and Local Government: The Facts On the Ground Are Libertarian

Cato Op-Eds - Fri, 09/26/2014 - 11:00

Walter Olson

Prof. Kenneth Stahl, who directs the Environmental Land Use and Real Estate Law Program at Chapman University School of Law, has a post at Concurring Opinions asking why libertarians aren’t more numerous among academic specialists in local government and land use law. Stahl describes his own views as siding with “leftists rather than libertarians,” that is to say, those who “have some confidence in the ability of government to solve social problems”: 

Nevertheless, were you to pick up a randomly selected piece of left-leaning land use or local government scholarship (including my own) you would likely witness a searing indictment of the way local governments operate. You would read that the land use decisionmaking process is usually a conflict between deep-pocketed developers who use campaign contributions to elect pro-growth politicians and affluent homeowners who use their ample resources to resist change that might negatively affect their property values. Land use “planning”—never a great success to begin with—has largely been displaced by the “fiscalization” of land use, in which land use decisions are based primarily on a proposed land use’s anticipated contribution to (or drain upon) a municipality’s revenues. Public schools in suburban areas have essentially been privatized due to exclusionary zoning practices, and thus placed off limits to the urban poor, whereas public schools in cities have been plundered by ravenous teachers’ unions.

… It hardly paints a pretty picture of local government. Yet, most leftists’ prescription is more government. 

To put it differently, libertarian analysis better explains what actually goes on in local government than does the standard progressive faith in the competence of government to correct supposed market failure. The post (read it in full!) goes on to discuss specifics such as annexation, incorporation, and economic stratification-by-jurisdiction; the relative success of lightly governed Houston in achieving low housing costs and attracting newcomers and economic growth; and the transference of progressives’ unmet hopes to regionalization, so memorably summed up by Jane Jacobs years ago: “A region is an area safely larger than the last one to whose problem we found no solution.”

Stahl: 

So why would left-leaning scholars, who have seen so clearly the failures of local government, place so much faith in a largely untested restructuring of governmental institutions, rather than looking to less government as the solution?

Great question.

Categories: Policy Institutes

The World Needs More Energy, Not Less

Cato Op-Eds - Fri, 09/26/2014 - 10:08

Paul C. "Chip" Knappenberger

This week, a few major media outlets covered my take on the effectiveness and judiciousness of President Obama’s call, at the U.N. Climate Summit, for all countries of the world to make pledges of how and how much they are going to reduce their national carbon dioxide emissions. It should be no surprise that I think such actions would be ineffective and imprudent.

My biggest criticism is that not all countries of the world are at the same stage of energy development. While the developed nations may have all the energy supplies they want and need, most developing countries do not. So, while developing countries pursue  “luxuries” like indoor lighting and clean cooking facilities (not to mention improved sanitation), developed countries are awash in the luxury of debating whether to alter the relative components of their fuel mix in hopes that it may (or may not) alter the future course of the climate.

Since historically (and today) there is an extremely tight coupling between energy production and carbon dioxide emissions (since fossil fuels are used to produce the overwhelming bulk of our energy), calls like those from President Obama to restrict carbon dioxide emissions are akin to calls to restrict energy usage and expansion.

Imposing carbon restrictions on developing nations would have large-scale negative implications, not only to those directly affected, but to the world as a whole, as a large expanse of human ingenuity–arguably humanity’s greatest resource–would remain constrained by basic survival efforts and 50-year life expectancies.

Basically, no one is going to go along with this. So despite promises, when adhering to plans to reduce carbon dioxide emissions (whether informal or formalized in a treaty) comes up against economic expansion and human welfare improvements, the latter are going to win out every time (or so we would hope).

Consequently, it is a lot easier to “talk the talk” on this issue of cutting carbon dioxide emissions than it is to “walk the walk.”  Even in the United States, where carbon dioxide emissions have been on a gentle decline for the past 7-8 years (something that the President likes to take credit for, despite that being impossible), a substantial portion of that decline has come at the hand of the recession and the rather stagnant recovery.

Some countries, however, are straightforward enough to publically recognize this and dispense with appearances. Take India for example. The new environmental minister there was forthright in a recent New York Times article:

In a blow to American hopes of reaching an international deal to fight global warming, India’s new environment minister said Wednesday that his country would not offer a plan to cut its greenhouse gas emissions ahead of a climate summit next year in Paris.

The minister, Prakash Javadekar, said in an interview that his government’s first priority was to alleviate poverty and improve the nation’s economy, which he said would necessarily involve an increase in emissions through new coal-powered electricity and transportation. He placed responsibility for what scientists call a coming climate crisis on the United States, the world’s largest historic greenhouse gas polluter, and dismissed the idea that India would make cuts to carbon emissions.

“What cuts?” Mr. Javadekar said. “That’s for more developed countries. The moral principle of historic responsibility cannot be washed away.” Mr. Javadekar was referring to an argument frequently made by developing economies — that developed economies, chiefly the United States, which spent the last century building their economies while pumping warming emissions into the atmosphere — bear the greatest responsibility for cutting pollution.

My guess is India is not alone in this sentiment, whether publically expressed or not.

The bottom line is that the world needs more energy, not less. Humanity’s overall well-being will be tied to the success of such pursuit.

Here’s is how I summed things up in my USA Today op-ed:

Overall, the world needs more energy, not less. Whatever changes in the climate that are to come, humanity will be better prepared and more resilient if we are healthier, wealthier and wiser. Restricting our ability to progress in these areas is not the best way forward.

Categories: Policy Institutes

Eric Holder's Tenure

Cato Op-Eds - Thu, 09/25/2014 - 17:57

Ilya Shapiro

Eric Holder’s tenure marked one of the most divisive and partisan eras of the Justice Department.  From his involvement in the bizarre guns-to-gangs operation (“Fast & Furious”), for which he has been cited for contempt by the House and referred to a federal prosecutor (which referral went nowhere due to invocations of executive privilege), to his refusal to recognize the separation of powers—enabling President Obama’s executive abuses—he politicized an already overly political Justice Department.

 One thing that differentiates Holder from other notorious attorneys general, like John Mitchell under Richard Nixon, is that Holder hasn’t gone to jail (yet; the DOJ Inspector General better lock down computer systems lest Holder’s electronic files “disappear”).

Holder’s damage to race relations may be even worse than his contempt for Congress, however, as his management of the Justice Department and use of its powers betray a desire to use the law to advance a dubious view of social justice. For example, he sued fire and police departments to enforce hiring quotas and inflamed social tensions with his pronouncements on Stand Your Ground laws. He blamed banks for not lending enough to members of racial minority groups and other banks for “predatory lending” that led to disproportionate bankruptcies among those same groups. Ironically, he’s even challenged school choice programs, which overwhelmingly help poor black kids acquire better educations.

Still, it must be said that Holder was a “uniter not a divider” on one front: under his reign, the Justice Department has suffered a record number of unanimous losses at the Supreme Court. In the last three terms alone, the  government has suffered 13 such defeats – a rate double President Clinton’s and triple President Bush’s – in areas of law ranging from criminal procedure to property rights to securities regulation to religious freedom. By not just pushing but breaking through the envelope of plausible legal argument, Attorney General Holder has done his all to expand federal (especially executive) power and contract individual liberty beyond any constitutional recognition.

Eric Holder will not be missed by those who support the rule of law.

Categories: Policy Institutes

Long-Term Solutions to the Ukraine Crisis

Cato Op-Eds - Thu, 09/25/2014 - 17:51

Emma Ashford

As I argued in a piece over at Forbes yesterday, western sanctions to roll back Russian action in Ukraine have been largely ineffectual. These sanctions - including asset freezes and visa bans – are ‘targeted’ at those suspected of having influence on Putin. Yet the sanctions, designed to be minimally painful for European states, are toothless - the majority of individuals sanctioned have only a minimal role in policy – and they won’t fix the long-term problem.

Over 150 individuals have been sanctioned by the United States and European Union, including 65 Ukrainian rebels, whose inclusion is presumably intended to inhibit their ability to wage conflict. The remainder are Russian, but most have no access to the corridors of power. Anatoly Sidorov, for example, the Commander of Russian military units in Crimea, is likely uninvolved in the policy formulation process. Other names are stranger, such as Ramzan Kadyrov, head of the Chechen republic. No doubt, he’s a trenchant proponent of the rebels, but he doesn’t influence Russian policy. In all, I estimate only a small proportion of those included in joint sanctions are actually involved in high-level decisionmaking.

The sanctions also vary in impact. Vladislav Surkov, suspected mastermind of Russia’s Crimea strategy, joked with reporters that sanctions didn’t worry him, as his only interest in the United States was Tupac. His point is valid: for those with no assets in Western Europe or the United States, sanctions are merely inconvenient.

Newer sanctions on companies certainly carry some more bite, restricting the ability of Russian banks to raise capital on Western markets. But they still don’t touch Russia’s key source of government revenues, an estimated 50-70% of which come from oil and gas sales. Unfortunately, Russia supplies one-third of Europe’s natural gas, and several countries (e.g., Estonia, Latvia) are entirely dependent on Russian energy. An immediate stop to imports is simply not possible, especially at the start of winter.

In the long-run, however, the most energy-dependent countries are also those most worried about Russia for security reasons. Now is an excellent time for these countries to begin to slowly divest themselves of Russian gas and oil. Dependence is a two-way street, after all: Russia is dependent on European payments for energy, and it will be difficult, time-consuming, and expensive for Russia to find alternate buyers for its resources.

The United States can help Europe with this process. The global energy market is being reshaped by innovations like fracking and liquified natural gas (LNG) transports. Thanks to shale gas, the United States is now one of the world’s largest producers of LNG, with shipments set to leave ports as early as 2015. Indeed, House Speaker John Boehner argued in March that the United States could help to curb Russia’s influence by encouraging natural gas exports to Eastern Europe. But for the sake of their own security, European states must begin the long process of shifting away from Russian energy supplies, and turning off the spigot of energy wealth that keeps the Kremlin afloat. 

Categories: Policy Institutes

The Collection of Evidence for a Low Climate Sensitivity Continues to Grow

Cato Op-Eds - Thu, 09/25/2014 - 17:09

Patrick J. Michaels and Paul C. "Chip" Knappenberger

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

Nic Lewis and Judith Curry just published a blockbuster paper that pegs the earth’s equilibrium climate sensitivity—how much the earth’s average surface temperature is expected to rise in association with a doubling of the atmosphere’s carbon dioxide concentration—at 1.64°C (1.05°C to 4.05°C, 90% range), a value that is nearly half of the number underpinning all of President Obama’s executive actions under his Climate Action Plan.

This finding will not stop the President and the EPA from imposing more limits on greenhouse-gas emissions from fossil fuels. A wealth of similar findings have appeared in the scientific literature beginning in 2011 (see below) and they, too, have failed to dissuade him from his legacy mission.

The publication of the Lewis and Curry paper, along with another by Ragnhild Skeie and colleagues, brings the number of recent low-sensitivity climate publications to 14, by 42 authors from around the world (this doesn’t count our 2002 paper on the topic, “Revised 21st Century Temperature Projections”).  Most of these sensitivities are a good 40% below the average climate sensitivity of the models used by the U.N.’s Intergovernmental Panel on Climate Change (IPCC).

Lewis and Curry arrive at their lower equilibrium climate sensitivity estimate by using updated compilations of the earth’s observed temperature change, oceanic heat uptake, and the magnitude of human emissions, some of which should cause warming (e.g., greenhouse gases), while the others should cool (e.g., sulfate aerosols). They try to factor out “natural variability.” By comparing values of these parameters from the mid-19 century to now, they can estimate how much the earth warmed in association with human greenhouse gas emissions.

The estimate is not perfect, as there are plenty of uncertainties, some of which may never be completely resolved. But, nevertheless, Lewis and Curry have generated  a very robust observation-based estimate of the equilibrium climate sensitivity.

For those interested in the technical details, and a much more thorough description of the research, author Nic Lewis takes you through the paper (here) has made a pre-print copy of the paper freely available (here).

In the chart below, we’ve added the primary findings of Lewis and Curry as well as those of Skeie et al. to the collection of 12 other low-sensitivity papers published since 2010 that conclude that the best estimate for the earth’s climate sensitivity lies below the IPCC estimates. We’ve also included in our Figure both the IPCC’s  subjective and model-based characteristics of the equilibrium climate sensitivity. For those wondering, there are very few recent papers arguing that the IPCC estimates are too low, and they all have to contend with the fact that, according to new Cato scholar Ross McKitrick, “the pause” in warming is actually 19 years in length. 

 

Figure 1. Climate sensitivity estimates from new research beginning in 2011 (colored), compared with the assessed range given in the Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (AR5) and the collection of climate models used in the IPCC AR5. The “likely” (greater than a 66% likelihood of occurrence)range in the IPCC Assessment is indicated by the gray bar. The arrows indicate the 5 to 95 percent confidence bounds for each estimate along with the best estimate (median of each probability density function; or the mean of multiple estimates; colored vertical line). Ring et al. (2012) present four estimates of the climate sensitivity and the red box encompasses those estimates. The right-hand side of the IPCC AR5 range is actually the 90% upper bound (the IPCC does not actually state the value for the upper 95 percent confidence bound of their estimate). Spencer and Braswell (2013) produce a single ECS value best-matched to ocean heat content observations and internal radiative forcing.

 

References:

Aldrin, M., et al., 2012. Bayesian estimation of climate sensitivity based on a simple climate model fitted to observations of hemispheric temperature and global ocean heat content. Environmetrics, doi: 10.1002/env.2140.

Annan, J.D., and J.C Hargreaves, 2011. On the genera­tion and interpretation of probabilistic estimates of climate sensitivity. Climatic Change, 104, 324-436.

Hargreaves, J.C., et al., 2012. Can the Last Glacial Maximum constrain climate sensitivity? Geophysical Research Letters, 39, L24702, doi: 10.1029/2012GL053872

Lewis, N. 2013. An objective Bayesian, improved approach for applying optimal fingerprint techniques to estimate climate sensitivity. Journal of Climate, doi: 10.1175/JCLI-D-12-00473.1.

Lewis, N. and J.A. Curry, C., 2014. The implications for climate sensitivity of AR5 focring and heat uptake estimates. Climate Dynamic, 10.1007/s00382-014-2342-y.

Lindzen, R.S., and Y-S. Choi, 2011. On the observational determination of climate sensitivity and its implica­tions. Asia-Pacific Journal of Atmospheric Science, 47, 377-390.

Loehle, C., 2014. A minimal model for estimating climate sensitivity. Ecological Modelling, 276, 80-84.

Masters, T., 2013. Observational estimates of climate sensitivity from changes in the rate of ocean heat uptake and comparison to CMIP5  models. Climate Dynamics, doi:101007/s00382-013-1770-4

McKitrick, R., 2014. HAC-Robust Measurement of the Duration of a Trendless Subsample in a Global Climate Time Series. Open Journal of Statistics4, 527-535. doi: 10.4236/ojs.2014.47050.

Michaels. P.J. et al., 2002. Revised 21st century temperature projections. Climate Research, 23, 1-9.

Otto, A., F. E. L. Otto, O. Boucher, J. Church, G. Hegerl, P. M. Forster, N. P. Gillett, J. Gregory, G. C. Johnson, R. Knutti, N. Lewis, U. Lohmann, J. Marotzke, G. Myhre, D. Shindell, B. Stevens, and M. R. Allen, 2013. Energy budget constraints on climate response. Nature Geoscience, 6, 415-416.

Ring, M.J., et al., 2012. Causes of the global warming observed since the 19th century. Atmospheric and Climate Sciences, 2, 401-415, doi: 10.4236/acs.2012.24035.

Schmittner,  A., et al. 2011. Climate sensitivity estimat­ed from temperature reconstructions of the Last Glacial Maximum. Science, 334, 1385-1388, doi: 10.1126/science.1203513.

Skeie,  R. B., T. Berntsen, M. Aldrin, M. Holden, and G. Myhre, 2014. A lower and more constrained estimate of climate sensitivity using updated observations and detailed radiative forcing time series. Earth System Dynamics, 5, 139–175.

Spencer, R. W., and W. D. Braswell, 2013. The role of ENSO in global ocean temperature changes during 1955-2011 simulated with a 1D climate model. Asia-Pacific Journal of Atmospheric Science, doi:10.1007/s13143-014-0011-z.

van Hateren, J.H., 2012. A fractal climate response function can simulate global average temperature trends of the modern era and the past millennium. Climate Dynamics,  doi: 10.1007/s00382-012-1375-3.

Categories: Policy Institutes

FDA Doesn't Want E-Cigs Marketed as Safer Than Tobacco Cigarettes

Cato Op-Eds - Thu, 09/25/2014 - 16:44

Matthew Feeney

In a forthcoming article in Regulation California Polytechnic State University economics professor Michael Marlow describes the negative effects on public health of the proposed regulation of e-cigarettes. The FDA proposes to expand its authority granted under of Section 911 of the Family Smoking Prevention and Tobacco Control Act. “Section 911 bans marketing tobacco products as modified risk products without FDA approval. Moreover, manufacturers are unable to inform consumers their products do not contain tobacco.”

The prohibition on marketing e-cigarettes as safer than traditional cigarettes has not been subject to cost-benefit analysis. This is particularly significant given that the literature on e-cigarettes suggests that they help smokers quit. Even the JAMA Patient Page, published by The American Medical Association last January, highlighted a number of potential e-cigarette benefits such as their lack of tobacco and the less toxic nature of e-cigarette vapor compared to cigarette second-hand smoke.

In his back-of-the envelope calculation using quit rates from the published literature, Marlow estimates that the benefits related to e-cigarettes would be between $15.6 and $49.2 billion a year as the result of between 2.4 and 6.4 million smokers becoming former smokers every year. “Prohibiting sales to youth and requiring a clear description of product ingredients may be appropriate. But prohibiting any information regarding potential efficacy in harm reduction is hard to justify given substantial benefits reported in currently available studies.”

Categories: Policy Institutes

Joe McNamara, RIP

Cato Op-Eds - Thu, 09/25/2014 - 14:50

Tim Lynch

Joe McNamara was a former police chief and scholar at the Hoover Institution.  He was an outspoken critic of the drug war and devoted much of his time to converting people within the law enforcement community. 

Here is a talk that he gave at Cato’s 1999 conference, Beyond Prohibition:
https://www.dropbox.com/s/ucftsgfrtshr7jk/McNamara.m4v?dl=0

Here is an article he prepared for Regulation Magazine in the wake of the 9/11 terrorist attacks, “The Defensive Front Line.”

Joe McNamara, RIP

Categories: Policy Institutes

Use Education to Transform China From Within

Cato Op-Eds - Thu, 09/25/2014 - 10:34

Doug Bandow

BEIJING—China’s university system is growing.  However, the People’s Republic of China still lags behind the U.S. and other Western nations.  Chinese students increasingly are heading to America for higher education. 

While recently playing tourist in Beijing I spoke to a number of young Chinese.  They were bright and inquisitive, ambitious and nationalistic.  They worried about finding good jobs and were irritated by government restrictions on their freedom. 

Beijing’s global influence depends upon domestic economic growth and political stability.  And that ultimately depends upon China’s young. 

The PRC’s university students today are most likely to become the country’s leaders tomorrow.  The number of college graduates has increased to seven million, a four-fold jump over the last decade. 

While the number of universities in China is growing, few have national, let alone international, reputations.  Undoubtedly that will change over time.  Today, however, competition for the few available spots at top schools is extraordinary. 

For instance, Peking and Tsinghua Universities are the only Chinese universities among the world’s top 100.  They have space only for 6000 new students a year. 

Obviously, far more Chinese students could succeed, indeed thrive, at fine universities.  So more than 400,000 young Chinese are heading abroad every year. 

The Chinese government increasingly accommodates students who desire to study overseas.  Indeed, in 2011 President Hu Jintao admitted:  “While people receive a good education, there are significant gaps compared to the advanced international level.”  The daughter of his successor, President Xi Jinping, attended Harvard University. 

The U.S. remains the favored destination of Chinese students.  There were 235,000 Chinese students in America during the 2012-2013 school year.  In the past most Chinese students were in graduate school, but the share of undergraduates has been increasing—up more than ninefold from 2005 to 2012. 

U.S. universities offer a greater variety of courses, making it easier to specialize.  They also provide an education more attuned to the global economy in which China is expanding its role. 

A foreign degree is particularly helpful for the three of ten Chinese students who remain overseas.  Chen Yuyu of Peking University observed:  “High-end jobs that should have been produced by industrialization, including research, marketing and accounting, etc., have been left in the West.” 

Foreign companies doing business in China also desire employees with a Western-oriented education.  Even Chinese students destined to work in China gain an advantage from schooling that sets them apart. 

Of course, while many Chinese students are capable of succeeding at foreign universities, many find foreign study difficult.  Some prospective applicants turn to private companies to help them prepare.

The Chinese educational surge is good for America.  Chinese students deliver $24 billion to the U.S economy. 

Moreover, educating many of China’s future leaders is more likely to lead to better bilateral relations and a more peaceful future.  Attending American colleges won’t turn Chinese into Americans, but will yield many personal friendships and business relationships. 

A common educational experience also may encourage a more liberal international vision.  Western schooling certainly does not guarantee humane views, but as I wrote in Forbes online, “a U.S. university education is more likely to reinforce the independent impulses evident in so many Chinese students today.”

They still will be Chinese patriots (and likely quite nationalistic in the eyes of most Americans).  But Western-educated Chinese may be more likely to appreciate if not share U.S. worldviews and objectives.  At least, the possibility is there.

The U.S.-China relationship is the most important bilateral relationship of the 21st Century.  Both nations must work through the inevitable disagreements and make cooperation rather than confrontation the hallmark of their relationship.  While there’s no panacea to make that happen, the growing number of Chinese attending U.S. universities is a hopeful sign.

Categories: Policy Institutes

Federal Prosecutorial Ethics

Cato Op-Eds - Wed, 09/24/2014 - 16:41

Tim Lynch

Arkansas businessman, John Stacks, is about to stand trial in federal court.  Mr. Stacks is attacking the charges and the conduct of the government agents.  Prosecutors don’t like what he’s been saying and asked a judge to squelch their target’s ‘false allegations.’

From the Arkansas Democrat-Gazette:

Prosecutors sought an order preventing Stacks, his attorneys or any witnesses on his behalf from airing the “false and/or misleading” allegations in front of jurors. They cited a video “re-enactment” he posted online of agents executing a search warrant at his business, along with allegations he has aired in a lawsuit over the raid. “At the time that the lawsuit was filed, Stacks knew that a grand jury investigation was under way,” the government’s motion notes….

In July, [Judge] Holmes ordered prosecutors to supply a “bill of particulars” providing more detail about the criminal accusations against Stacks than what was stated in the indictment. This was in response to Stacks’ claim that he couldn’t figure out exactly what he was accused of doing wrong, and that when he asked for details, prosecutors handed over 80,000 un-navigable pages of documents.

The Constitution guarantees free speech.  It also says the accused has the right to be informed of the nature and cause of the accusation against him.  Two constitutional violations and the trial has not even started yet.

I have hosted two policy forums about federal prosecutorial abuses the past few months.  We may need to host such events even more regularly.  

Categories: Policy Institutes

School Choice Safe in Florida...for Now

Cato Op-Eds - Wed, 09/24/2014 - 15:44

Jason Bedrick

Earlier this year, Florida’s largest teachers union filed a legal challenge to prevent the expansion of school choice. As I explained then:

The Florida Education Association is suing the state of Florida to eliminate the new Personal Learning Scholarship Account (PLSA) program, among other recent education reforms, including an expansion of the state’s scholarship tax credit law. Modeled after Arizona’s popular education savings account (ESA), the PLSA would provide ESAs to families of students with special needs, which they could use to pay for a wide variety of educational expenses, such as tuition, tutoring, textbooks, online learning, and educational therapy. Six families with special-needs children who would have qualified for the program are seeking to intervene as defendants in the lawsuit, represented by the Goldwater Institute’s Clint Bolick.

The union’s lawsuit argues that the legislation creating the PLSA, Florida’s Senate Bill 850, violated the state constitution’s “one subject rule” because it contained a variety of education reforms.

Today a circuit court judge dismissed the lawsuit, ruling that the plaintiffs lacked standing to sue because they could not show how they were harmed by the law. Last month, the New Hampshire Supreme Court unanimously ruled that plaintiffs lacked standing to challenge the Granite State’s scholarship tax credit law because they also could not demonstrate that they suffered any harm.

However, Florida’s school choice laws aren’t out of the woods just yet. A slew of anti-school choice activists, including the teachers union, state school boards association, and the state PTA, filed two separate legal challenges against the state’s school choice laws, alleging that they violate the state constitution’s historically anti-Catholic Blaine Amendment, which prohibits public funds from being expended at religious schools, and the state’s “uniformity” clause. However, as Andrew J. Coulson recently explained, the lawsuits are without merit:

The first claim, that public monies are being spent on religious education, is simply false. In addition to the U.S. Supreme Court […] the Arizona Supreme Court, and Illinois district courts have also concluded that donations made under education tax credit programs are not public money. Black’s law dictionary agrees, as the Arizona court observed.

Plaintiffs’ second argument is that the tax credit program violates Article IX, Section 1 of the Florida constitution, which states that “Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools.” The Florida supreme court ruled in Bush v. Holmes that the state’s publicly-funded school voucher system violated this clause, because “it diverts public dollars” from “the sole means set out in the Constitution for the state to provide for the education of Florida’s children.”

It is worth noting that Florida’s constitution does not stipulate that the uniform system of free public schools must be the sole means of providing for children’s education. On the contrary, it explicitly authorizes—in the very same sentence—such “other public education programs that the needs of the people may require.” The majority on theBush court decided to interpret away this clause, claiming that it referred exclusively to junior colleges and adult education outside K-12 schooling. Though they cited a precedent for this claim (Board of Public Instruction v. State Treasurer, 231 So. 2d 1, 1970), the given case does not support their contention. That precedent merely states that junior colleges and adult education happen to fall within the meaning of “other public education programs,” not that they are the only programs that do so.

Both lawsuits are likely to reach the Florida Supreme Court. If reason prevails, both will be rejected.

Categories: Policy Institutes

We Shall Not Be Moved. Unless There's a Democrat in the White House.

Cato Op-Eds - Wed, 09/24/2014 - 14:03

David Boaz

Dana Milbank reports in the Washington Post:

The anti-Obama left was out in force. All 22 of them.

As the president stood on the South Lawn to announce the bombing campaign in Syria, liberal demonstrators gathered on Pennsylvania Avenue on the other side of the White House to protest the man they thought was their ally….

“If George W. Bush were launching wars with Congress out of town, oh, it would be flooded,” longtime liberal activist David Swanson said, looking across mostly empty Pennsylvania Avenue “They would be screaming.”

My thoughts from 2011 on the disappearance of the antiwar movement. Buzzfeed worries that antiwar celebrities may have been kidnapped.

Categories: Policy Institutes

Financial Crisis Lessons From Experimental Economics

Cato Op-Eds - Wed, 09/24/2014 - 13:58

Mark A. Calabria

Economic scholarship tends to operate in silos. That is, banking scholars don’t talk to macroeconomists, etc. Sadly, this is even more so between finance, monetary and experimental economics.  In his latest book, Rethinking Housing Bubbles, Nobel Prize winner Vernon Smith, the father of experimental economics, offers a number of lessons that could greatly improve the stability of our financial system.

Some of these include:

  • Markets for perishable goods behave generally well and do not tend to display bubbles, whereas asset markets commonly display bubble behavior in experimental settings.
  • Allowing margin buying (leverage) significantly increases bubble size and duration for inexperienced buyers, but not for experienced.
  • Even sophisticated buyers, when inexperienced, display bubble behavior. 
  • Experience helps: repeated play in an experimental game brings price behavior closer to fundamentals.
  • Informed “inside traders” can reduce size of bubbles.
  • Presence of futures markets can stabilize prices in spot markets.
  • Additional liquidity increases size and duration of bubbles.
  • Bubbles can develop even when participants are fully informed as to operation of the market (they know with certainty future incomes streams and how the market functions).

In terms of policy recommendations, the list above suggests a few things to me. First, policymakers should pay close attention to asset markets. Second, higher down-payments, particularly among first-time buyers, are likely to reduce housing bubbles. Policy should be tolerant of informed buyers, such as hedge funds, buying-up foreclosed homes. 

Consumer disclosures, like Truth in Lending, are likely to be useless. Financial literacy should focus less on information and more on experience. Excess central bank liquidity is likely to contribute to asset bubbles.

Perhaps the biggest lesson is that bubbles in experimental asset markets are quite common, especially markets were buyers have little experience and engage in few transactions (sounds like the housing market). 

We will touch upon some of these issues, and others, when Vernon Smith comes to Cato next week to discuss his new book. You can register (or watch streaming) here.

 

Categories: Policy Institutes

Air Traffic Criticism

Cato Op-Eds - Wed, 09/24/2014 - 12:11

Chris Edwards

Canada, Australia, New Zealand, Britain, and Germany appear to be doing a better job than America at embracing new technologies for air traffic control (ATC). Those countries have restructured their ATC systems as self-supporting entities outside of their government bureaucracies while we still run ours as part of the civil service in the Federal Aviation Administration (FAA).

More evidence that Congress should restructure our ATC system comes from today’s Wall Street Journal:

An effort to modernize the U.S. air-traffic-control system is seeing such a bumpy rollout that costs associated with some of the core technology outweigh potential benefits, according to a report soon to be released by a federal watchdog.

An audit report by the Transportation Department’s inspector general, slated to be released in the next few days, raises new questions about the design, deployment and projected benefits of one of the Federal Aviation Administration’s futuristic ways to enhance monitoring and management of aircraft.

The document is sharply critical about early implementation of ground-based radio towers that are part of a proposed $4.5 billion network designed to track the locations of planes more precisely than current radar. The new system, dubbed ADS-B, eventually aims to rely primarily on satellite-based navigation and tracking.

Some of the general criticism mirrors reports and comments by the inspector general and his staff over the past few years directed at the FAA’s overall air-traffic-modernization initiative, which it calls NextGen.

The federal bureaucracy would not be very good at running a high-tech firm, such as Apple, so it is no surprise that FAA has major problems running the high-tech ATC business. Our ATC system needs better management, higher efficiency, and more rapid innovation. We are more likely to achieve those goals if we privatized the system, as Canada did successfully almost two decades ago.

Categories: Policy Institutes

Old Technopanic in New iBottles

Cato Op-Eds - Tue, 09/23/2014 - 17:17

Julian Sanchez

Gather around young’uns: Back in the antediluvean early 90s, when the digital world was young, a motley group of technologists and privacy advocates fought what are now, somewhat melodramatically, known as the Crypto Wars. There were many distinct battlefields, but the overarching question over which the Crypto Wars were fought was this: Would ordinary citizens be free to protect their communications and private files using strong, truly secure cryptography, or would governments seek to force programmers and computer makers to build in backdoors that would enable any scheme of encryption to be broken by the authorities?  Happily for both global privacy and the burgeoning digital economy—which depends critically on strong encryption—the American government, at least, ultimately saw the folly of seeking to control this new technology. Today, you are free to lock up your e-mails, chats, or hard drives without providing the government with a spare key.  (The conflict was featured on the front page of Wired Magazine’s second issue, and later detailed in Steven Levy’s lively book Crypto.)

Fast forward to 2014: Apple has announced that the new version of its mobile operating system, iOS, features full disk encryption to protect users’ data, and in contrast to earlier versions of iOS, Apple will not leave itself a backdoor that previously allowed the company to access at least some of the phone owner’s encrypted information.  The announcement has been greeted with alarm by cyberlaw professor Orin Kerr, in a series of  Washington Post blog entries that seem designed to prove Santayana’s hoary dictum about the perils of ignoring history. Apple, Kerr avers, is playing a “dangerous game” by implementing “a policy that only thwarts lawful search warrants.”  Police investigations, he fears, will now be stymied by criminals who refuse to unlock their phones, rendering search warrants to access those devices little more than “a nice piece of paper with a judge’s signature.”

Normally, Kerr’s writing on electronic privacy is marked by an understanding of modern telecommunications technology nearly as impressive as his legal erudition, but in this case, I fear, he has succumbed to an uncharacteristic fit of technopanic.  While he writes as though the corporate anarchists at Apple are brazenly thumbing their noses at police with a radical new policy, the truth is more nearly the opposite: It is Apple’s backdoor access that was the abberation, even for Apple.  If you encrypt your MacBook’s hard drive with Apple’s FileVault, or your Windows computer with Microsoft’s BitLocker, then unless the user chooses to send either company a backup copy of her encryption key, they can no more  unlock those encrypted files than a bookbinder can decipher the private code you employ in your personal diary.  Strong encryption is not even new to smartphones: Google’s Android operating system—the world’s most popular mobile platform, running on twice as many devices as iOS—has featured full-device encryption since 2011, and Google has never had backdoor access to those encrypted files.  And, of course, there have always been a wide array of third-party apps and services offering users the ability to encrypt their sensitive files and messages, with the promise that nobody else would hold the keys.  Does encryption occasionally stymie legitimate law enforcement investigations?  Of course—though way, way less often than you might think. The point to remember here, though, is that criminals have had access to backdoor-free encryption for many, many years before Apple announced its new policy without ushering in a terrifying new age of unstoppable criminals and impotent police.

Still, Kerr is right that encryption will now be far easier and more prevalent: Unbreakable encryption is not novel, but the decision to make iOS and Android devices encrypted by default is.  Previously, at least, criminals had to be savvy enough to make the choice to use encryption consistently—and many weren’t.  Encryption by default, because it protects average crooks as well as sophisticated cybercriminals, is likely to be a practical impediment in many more investigations. Criminals can still be punished for refusing a court order to unlock their devices, but may escape more serious charges that would be provable only with that encrypted evidence.  Does this strengthen the case, as Kerr suggests, for legislation requiring device manufacturers to build in backdoors or retain sensitive data?  It does not, for several reasons.

First, as Kerr belatedly acknowledges in a follow-up post, there are excellent security reasons not to mandate backdoors. Indeed, had he looked to the original Crypto Wars of the 90s, he would have seen that this was one of the primary reasons similar schemes were almost uniformly rejected by technologists and security experts.  More or less by definition, a backdoor for law enforcement is a deliberately introduced security vulnerability, a form of architected breach: It requires a system to be designed to permit access to a user’s data against the user’s wishes, and such a system is necessarily less secure than one designed without such a feature.  As computer scientist Matthew Green explains in a recent Slate column (and, with several eminent colleagues, in a longer 2013 paper) it is damn near impossible to create a security vulnerability that can only be exploited by “the good guys.” Activist Eva Galperin puts the point pithily: “Once you build a back door, you rarely get to decide who walks through it.” Even if your noble intention is only to make criminals more vulnerable to police, the unavoidable cost of doing so in practice is making the overwhelming majority of law-abiding users more vulnerable to criminals.

Second, and at the risk of belaboring the obvious, there are lots of governments out there that no freedom-loving person would classify as “the good guys.” Let’s pretend—for the sake of argument, and despite everything the experts tell us—that somehow it were possible to design a backdoor that would open for Apple or Google without being exploitable by hackers and criminals. Even then, it would be awfully myopic to forget that our own government is not the only one that would predictably come to these companies with legal demands. Yahoo, for instance, was roundly denounced by American legislators for coughing up data the Chinese government used to convict poet and dissident Shi Tao, released just last year after nearly a decade in prison.  Authoritarian governments, of course, will do their best to prevent truly secure digital technolgies from entering their countries, but they’ll be hard pressed to do so when secure devices are being mass-produced for western markets.  An iPhone that Apple can’t unlock when American cops come knocking for good reasons is also an iPhone they can’t unlock when the Chinese govermment comes knocking for bad ones. A backdoor mandate, by contrast, makes life easy for oppressive regimes by guaranteeing that consumer devices are exploitable by default—presenting U.S. companies with a presence in those countries with a horrific choice between enabling repression and endangering their foreign employees.

Third—least obviously, but perhaps most importantly—any backdoor or retention mandate both implicitly assumes and, if it is to be effective, must effectively encourage centralized over decentralized computing and communications architectures. When Kerr contemplates requiring “cellular phone manufacturers” to enable police access to their devices, he tacitly presupposes that the manufacturer is in control of the software running on the device. That may describe Apple’s notoriously tightly integrated ecosystem—but it is hardly the norm for computing devices.  Most, of course, come preinstalled with an operating system and some default software packages chosen by the manufacturer, but if the user wants to install new software or a different operating system, she is free to do so.  That software may be released by a huge corporation like Apple or Google, with teams of lawyers on retainer to comply with lawful orders and subpoenas, by a tiny startup, by a lone developer working from his basement, or by a dispersed global community of open source coders.

As writer Cory Doctorow explains in his insightful essay “Lockdown: The Coming War on General-Purpose Computing,” the only real way to make mandates of the kind Kerr discusses effective is to prohibit computers (and smartphones, of course, are just small computers with embedded cellular radios) that are truly controlled by their lawful owners:

We don’t know how to build a general-purpose computer that is capable of running any program except for some program that we don’t like, is prohibited by law, or which loses us money. The closest approximation that we have to this is a computer with spyware: a computer on which remote parties set policies without the computer user’s knowledge, or over the objection of the computer’s owner. Digital rights management always converges on malware.

If you saddle Apple, or any other device manufacturer, with a legal obligation to help police unlock a device, you necessarily encourage them to centralize control over the software running on that device.  Apple, again, is already pretty centralized, but there’s not much point in requiring Google to release an insecure version of Android if any user can just install a patch that removes the vulnerability.  You can require Apple to store iMessage chats for the convenience of police, but if users can simply install an open-source, peer-to-peer chat application that isn’t designed to spy on them, all that does is drive privacy-conscious users (including, of course, criminals—but by no means criminals alone) away from iMessage.  In the long run, the options are an ineffective mandate that punishes companies that choose centralized models, or a somewhat more effective mandate that will still be circumvented by sophisticated criminals… but only at the cost of destroying or marginalizing the open computing architectures that have given us decades of spectacular innovation.  Even if we ignore very serious concerns about privacy and security, these are both terrible options.

Fourth and finally, we should step back and maintain a little perspective about the supposedly dire position of 21st century law enforcement.  In his latest post in the Apple series, Kerr invokes his influential “equlibrium adjustment theory” of Fourth Amendment law. The upshot of Kerr’s theory, radically oversimplified, is that technological changes over time can confer advantages on both police investigators and criminals seeking to avoid surveillance, and the law adjusts over time to preserve a balance between the ability of citizens to protect their privacy and the ability of law enforcement to invade it with sufficiently good reason.  As I hope some of my arguments above illustrate, technology does not necessarily provide us with easy Goldilocks policy options: Sometimes there is just no good way to preserve capabilities to which police have grown accustomed without imposing radical restrictions on technologies used lawfully by millions of people—restrictions which are likely to as prove futile in the long run as they are costly. But this hardly means that evolving technology is bad for law enforcement on net.

On the contrary, even if we focus narrowly on the iPhone, it seems clear that what Apple taketh away from police with one hand, it giveth with the other: The company’s ecosystem considered as a whole provides a vast treasure trove of data for police even if that trove does not include backdoor access to physical devices.  The ordinary, unsophisticated criminal may be more able to protect locally stored files than he was a decade ago, but in a thousand other ways, he can expect to be far more minutely tracked in both his online and offline activities. An encrypted text messaging system may be worse from the perspective of police than an unencrypted one, but it is it really any worse than a system of pay phones that allow criminals to communicate without leaving any record for police to sift through after the fact? Meanwhile activities that would once have left no permanent trace by default—from looking up information to moving around in the physical world to making a purchase—now leave a trail of digital breadcrumbs that would have sounded like a utopian fantasy to an FBI agent in the 1960s.  Law enforcement may moan that they are “going dark” when some particular innovation makes their jobs more difficult (while improving the security of law-abiding people’s private data), but when we consider the bigger picture, it is far easier to agree with the experts who have dubbed our era the Golden Age of Surveillance. Year after year, technology opens a thousand new windows to our government monitors. If we aim to preserve an “equilibrium” between government power and citizen privacy, we should accept that it will occasionally close one as well.

Categories: Policy Institutes

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