Sen. Rand Paul (R‑KY) gave a great speech on surveillance last week at FreedomFest. Actually, he gave two good speeches, but the one embedded below is his short 6‑minute talk at the Saturday night banquet. He talks about our slide toward state intrusion into our phone calls, our emails, our reading habits and so on. You know how big the surveillance state has gotten? The answer is “a gazillion.” Watch the speech—complete with high-falutin’ references to Fahrenheit 451 and the martyr Hugh Latimer!

The head of a fast food chain, Dan Cathy, president of Chick-fil‑A, is opposed to allowing gay people to create the mutual obligations and rights of marriage. I disagree with him. I’ve never eaten in one of his stores, so I couldn’t really boycott his business, but I can explain to him why I disagree.

What I would not do is to take any of his rights from him for his expression of his views. He has the right to them.

The mayor of Boston has threatened to punish Mr. Cathy for exercising his right to express his views. He raked Mr. Cathy over the coals in a letter that was then posted on the City of Boston’s Facebook page. In an interview with the Boston Herald  the mayor not only expressed his own opinion, which he is free to do; he went further and threatened to use his power illegitimately to deny the rights of Mr. Cathy and his partners, shareholders, and employees to do business in the city of Boston.

Opinion: “Chick-fil‑A doesn’t belong in Boston. You can’t have a business in the city of Boston that discriminates against a population. We’re an open city, we’re a city that’s at the forefront of inclusion.”

Threat: “If they need licenses in the city, it will be very difficult—unless they open up their policies.”

I’m a supporter of the right of gay people to create mutual obligations and rights of marriage. I’m a supporter of freedom of speech. And I’m a supporter of freedom of enterprise. I disagree (strongly) with Mr. Cathy and hope that he will change his mind.

Mayor Menino should retract his threats and, at the very least, apologize. Mayor Menino is no friend of human rights. His threat is tyrannical.

Perhaps the first thing you should know about campaign finance “reform” proposals — at least those coming from the left — is that their ultimate goal is to deter speech about political issues. Whether it’s limiting campaign donations or spending, restricting the ability of corporations or other groups to publicize their views, or imposing disclosure rules, the goal isn’t to have better-informed voters or a more dynamic political system, but to have less speech. Those who advocate these things want the government to have the power to control who speaks and how much.

That lesson was repeated to me during two public events I participated in yesterday. First, at a Senate hearing (which you can watch here; my opening remarks, a longer version of which you can read here, begin at 59:50) several senators seemed incredulous at my suggestion that we need more speech rather than less. After Sen. Dick Durbin (D‑IL) tried to get me to admit that I was a Koch pawn, a particularly laughable charge in a year when the Kochs sued Cato over management issues, Sens. Sheldon Whitehouse (D‑RI) and Richard Blumenthal (D‑CT) were incredulous that I would want fewer restrictions and less disclosures than them. If I favor certain disclosure rules for donations to campaigns — which I do, in conjunction with eliminating donation caps, as I wrote yesterday — why am I against the DISCLOSE Act, which would impose certain further reporting requirements on independent political spending (and which failed last week after getting zero Republican votes)?

I should’ve just referred the senators to John Samples’s analysis of an earlier version of the proposed legislation, but in any event, the answer boils down to the idea that the required disclosures (of expenditures — which shouldn’t be confused with donations) are so onerous as to burden and deter speech with negligible impact on voter information. That is, as former FEC chairman Brad Smith explains in this video, disclosing that a TV commercial was paid for by Americans for Apple Pie, one of whose donors is the local chamber of commerce, one of whose donors is the U.S. Chamber of Commerce, one of whose donors is the national widget manufacturers’ associations, one of whose donors is Acme Widgets … doesn’t tell a voter anything. What it does do is require 20 seconds of the 30-second ad to be given over to disclosure rather than the actual political speech. So what’s the purpose of the regulation if not to deter that speech?

Moreover, Super PACs already have to disclose their donors, and if their donors are corporations/​associations rather than individuals, you can look up the people leading those entities in their corporate filings. And if the problem is “millionaires and billionaires” — there was more than one reference to the Kochs during the hearing, and I helpfully suggested that I’m happy to defend Georges Soros and Clooney as well — then no law short of a complete ban on political speech by individuals will do. Luckily, we have the First Amendment in place to stop self-interested incumbents from trying that.

My second public event was an unlikely appearance on the Rachel Maddow Show, where I joined Harvard law professor Larry Lessig, who also appeared at the earlier Senate hearing, to discuss campaign finance regulation. I thought it went pretty well, and you can watch for yourself (segment titled “How to take American democracy back from the .000063 percent”). What’s telling is that guest-host Ezra Klein was more even-handed than the senators at the earlier hearing.

Finally, here’s another nugget from yesterday: As I exited the Senate hearing room, a young “reform” activist said to me, “I think you’re a fascist.” And here I thought that I did a decent job of getting across the point that we should have less government, not more.

New York City Mayor Michael Bloomberg, on TV the other day answering a question about why the public doesn’t demand the enactment of gun control after the Colorado theater shooting: “Well, I would take it one step further. I don’t understand why the police officers across this country don’t stand up collectively and say, we’re going to go on strike. We’re not going to protect you [unless new restraints are enacted].” James Taranto at the Wall Street Journal’s “Best of the Web” calls out the Gotham mayor:

A police strike, as Bloomberg figured out a day late, is illegal in itself. Bloomberg’s strike would be for the purpose of curtailing the citizenry’s constitutional rights. The mayor urged an unlawful rebellion by government employees against their employers, the people.

Taranto also notes:

And whether Bloomberg meant to suggest a real strike threat or an empty one, it seems obvious that such a move would be counterproductive. The prospect of police shirking their duty to protect the citizenry strengthens, not weakens, the case for private ownership of firearms and other tools of self-defense.

It’s enough to make you wonder whether Bloomberg is secretly a passionate admirer of the Second Amendment and keeps saying things this outrageous from a covert intent to sabotage the case for gun control.

This blogpost was co-authored by legal associate Matt Gilliam.

In December 2010, the FCC adopted Preserving the Open Internet, a “network neutrality” order regulating broadband internet access service. Issued under authority (ostensibly) derived from 24 disparate provisions of federal communications law, Preserving the Open Internet is predicated on three basic rules: transparency, no blocking, and no discrimination.

Broadly speaking, “transparency” requires broadband providers to “disclose network management practices, performance characteristics, and terms and conditions of services.” The “no blocking” rule forbids fixed broadband providers from “blocking lawful content, applications, services, and non-harmful devices.” Meanwhile, mobile broadband providers are restricted from blocking “lawful websites” and certain applications. The “No Discrimination” rule prohibits broadband providers from unreasonable discrimination in transmitting lawful network traffic.

The promulgation of the FCC’s network neutrality order will have serious consequences for the constitutional rights of broadband providers. One such provider, Verizon, now seeks to challenge the FCC order in the U.S. Court of Appeals for the D.C. Circuit. This week, Cato joined TechFreedom, the Competitive Enterprise Institute, and the Free State Foundation, on a brief urging the court to uphold Verizon’s First and Fifth Amendment rights.

We first argue that the FCC order violates broadband providers’ First Amendment rights by compelling speech, forcing them to transmit messages from content providers that they might not wish to convey, preventing them from transmitting messages they want to convey, prohibiting them from exercising editorial discretion, and generally restricting the mode and content of their communications. Because the order singles out certain speakers, it demands “strict scrutiny,” which it cannot survive because it neither serves a compelling governmental interest nor is narrowly tailored. We next argue that the FCC order violates broadband providers’ Fifth Amendment rights by subjecting them to physical and regulatory takings. The FCC order enacts a physical taking by granting the content providers an unrestricted right to occupy property while slicing through the bundle of property rights broadband providers enjoy as network owners. The order essentially gives the content providers unlimited use of the network owners’ physical property without any compensation, forbidding the rightful owners from exercising their right to control the use of their property and exclude others.

Furthermore, in forcing network owners to give network space to content providers, the regulation shifts costs to consumers, discouraging them from using broadband service and thus diminishing the network’s economic value. The FCC order also constitutes a regulatory taking because it prevents broadband providers from attaining their networks’ full economic value and subverts network owners’ reasonable investment-backed expectations. Finally, we argue that the FCC’s assertion of authority to regulate the Internet is a dangerous aggrandizement of agency power. In sum, while seeking to benefit content providers, the FCC has promulgated a regulation that violates the First and Fifth Amendment rights of broadband providers.

The case of Verizon v. FCC will be argued at the D.C. Circuit later this summer.

Building on the excellent fisking of Newsroom by my colleague Caleb Brown and Reason’s Scott Shackford, let me reiterate that Citizens United has nothing to do with any problems regarding how we regulate political campaigns, perceived or real. 

Perceived: Campaign finance “reformers” think we’d be a lot better off if corporations, particularly foreign corporations, weren’t able to fund candidates and parties. Of course, Citizens United didn’t disturb the ban on that sort of thing, which has been in place since 1907. 

Real: Independent political speech — be it individual, corporate, union, advocacy group, neighborhood association, or informal group of friends — is largely unregulated (though you do have to register SuperPACs and disclose donors, be they individuals or corporations) but candidates and campaigns bear onerous burdens regarding contribution limits, disclosure requirements (which scare off small donors rather than large bundlers), and arcane coordination rules. A Supreme Court ruling is indeed at fault for the bizarre and largely unworkable way in which our laws have developed in this areas, but it’s not Citizens United. Instead, it’s the 1976 baby-splitting opinion in Buckley v. Valeo, which saw the Court rewrite the Watergate-era Federal Election Campaign Act, creating a piece of legislation much different than the global reform Congress passed (sound familiar?).

I’ve written a law review article about all this called “Stephen Colbert Is Right to Lampoon Our Campaign Finance System (And So Can You!),” which will run in the University of St. Thomas (MN) Journal of Law & Public Policy this fall. 

And Tuesday afternoon I’ll be testifying to that effect to the Senate Judiciary Committee’s Subcommittee on the Constitution (here’s the link to the hearing site, where you’ll be able to watch). Here’s an excerpt from my written statement (which isn’t online yet):

The underlying problem, however, is not the under-regulation of independent speech but the attempt to manage political speech in the first place. Political money is a moving target that, like water, will flow somewhere. If it’s not to candidates, it’s to parties, and if not there, then to independent groups or unincorporated individuals acting together. Because what the government does matters and people want to speak about the issues that concern them. To the extent that “money in politics” is a problem, the solution isn’t to try to reduce the money—that’s a utopian goal—but to reduce the scope of political activity the money tries to influence. Shrink the size of government and its intrusions in people’s lives and you’ll shrink the amount people will spend trying to get their piece of the pie or, more likely, trying to avert ruinous public policies.

.…

The solution is rather obvious: Liberalize rather than further restrict the campaign finance regime. Get rid of limits on contributions to candidates—by individuals, not corporations—and then have disclosures for those who donate some amount big enough for the interest in preventing the appearance of quid pro quo corruption to outweigh the potential for harassment. Then the big boys who want to be real players in the political market will have to put their reputations on the line, but not the average person donating a few hundred bucks—or even the lawyer donating $2,500—and being exposed to boycotts and vigilantes. Let the voters weigh what a donation from this or that plutocrat means to them, rather than—and I say this with all due respect—allowing incumbent politicians to write the rules to benefit themselves.

Curiously, there will be six witnesses taking the “get corporate (and maybe even all private) money out of politics” view as against one, me, for deregulation and freedom of speech. That seems a bit unfair; I’d think that the campaign-finance-reform zealots need at least a dozen people to stand up against my very simple “remove contribution caps but require disclosure for big players” argument. Should be fun.

In short, while there are (at least) 99 problems with how we manage elections, Citizens United ain’t one.

Americans are being told that there’s no need to worry about the broad surveillance programs authorized by the controversial FISA Amendments Act of 2008. Yet a report from Wired this weekend paints a more disturbing picture: National Security Agency surveillance enabled by the FAA was found “unreasonable under the Fourth Amendment” by the secretive Foreign Intelligence Surveillance Court “on at least one occasion.” The court also found that the government’s implementation of its authority under the statute had “circumvented the spirit of the law.” Despite these troubling rulings from a court notorious for its deference to intelligence agencies, Congress is so unconcerned that lawmakers don’t even want to know how many citizens have been caught up in the NSA’s vast and growing databases.

These revelations come by way of a letter to Sen. Ron Wyden—who will be speaking about this very government spying program at Cato this Wednesday—from the Office of the Director of National Intelligence, which approved Wyden’s request for declassification of a few morsels of information about secret FISA Court rulings. In the interest of permitting some minimal public debate about the FAA, which is currently before Congress for renewal, Wyden was told he would be allowed to say the following—and only the following publicly:

• A recent unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.
• It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
• I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

That first statement is almost certainly a direct reference to Sen. Dianne Feinstein’s assertions in a recent report from the Senate Intelligence Committee—which noted that the Court has blessed much of the surveillance under Section 702, the part of the FAA that permits warrantless acquisition of international communications. Given the massive volume of NSA surveillance, however, the fact that some NSA surveillance was held constitutional is much less significant, for purposes of public accountability, than the fact that some of it was unconstitutional. Feinstein’s summary of those positive classified opinions was made public weeks ago, apparently without much trouble. Yet only now that the FAA renewal has made it through multiple committees is the public permitted to know—after much tooth-pulling from a senator, via a letter released late on a Friday afternoon—how incomplete that summary really was.

It’s cause for concern any time government exceeds the bounds of the Fourth Amendment, but it should be truly worrying when it’s in the context of mass-scale spying by the NSA. Based on what little we know of the NSA’s programs from public reports, a single “authorization” will routinely cover hundreds or thousands of phone numbers and e‑mail addresses. That means that even if there’s only “one occasion” on which the NSA “circumvented the spirit of the law” or flouted the Fourth Amendment, the rights of thousands of Americans could easily have been violated.

Moving from confirmed fact to mild—but I think reasonable—speculation, there is something about the peculiar phrasing of these statements worth noticing: “collection carried out pursuant to the Section 702 minimization procedures.” Minimization procedures are the rules designed to limit the retention and dissemination of irrelevant information about innocent Americans that might get picked up during authorized surveillance. In ordinary criminal wiretaps, it makes sense to talk about “collection carried out pursuant to… minimization procedures” because, under the stricter rules governing such spying, someone is supposed to be monitoring the wiretap in realtime, and ensuring that innocent conversations (like a mobster’s spouse or teenage kids chatting on the house line) are not recorded.

But that’s not how FISA surveillance normally works. As a rare public ruling by the FISA Court explains, the standard procedure for FISA surveillance is that “large amounts of information are collected by automatic recording to be minimized after the fact.” The court elaborated: “Virtually all information seized, whether by electronic surveillance or physical search, is minimized hours, days, or weeks after collection.” (Emphasis mine.) In other words, minimization is something that normally happens after collection: First you intercept, then you toss out the irrelevant stuff. Intelligence officials have suggested the same in recent testimony before Congress: Communications aren’t “minimized” until they’re reviewed by human analysts—and given the incredible volume of NSA collection, it’s unlikely that more than a small fraction of what’s intercepted ever is seen by human eyes. Yet in the statements above, we have two intriguing implications: First, that “collection” and “minimization” are in some sense happening contemporaneously (otherwise how could “collection” be “pursuant to” minimization rules?) and second, that these procedures are somehow fairly intimately connected to the question of “reasonableness” under the Fourth Amendment.

To make sense of this, we need to turn to the Defense Department’s somewhat counterintuitive definition of “collection” for intelligence purposes. As the Department’s procedures manual explains:

Information shall be considered as “collected” only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties.… Data acquired by electronic means is “collected” only when it has been processed into intelligible form.

This dovetails with a great deal of what we know about recent NSA surveillance, in which enormous quantities of communications are stored in a vast database codenamed Pinwale for later analysis. Under the FAA, the Court doesn’t review in advance whether there’s probable cause to justify surveillance of any particular individual, as is normally the case with search warrants. Rather, the Court simply verifies that the NSA is employing “targeting procedures” designed to pick up communications with at least one foreign participant. By that limited standard, an algorithm designed to record every call and e‑mail between the United States and Pakistan (or England) would qualify, which hardly sounds stringent enough to pass Fourth Amendment muster even under the looser rules that apply to foreign intelligence.

The language of these statements, however, would be consistent with the clever “solution” former NSA employees and whistleblowers like Bill Binney have long been telling us the agency has adopted. Referring to a massive data storage facility being constructed by NSA in Utah, Binney writes:

The sheer size of that capacity indicates that the NSA is not filtering personal electronic communications such as email before storage but is, in fact, storing all that they are collecting. The capacity of NSA’s planned infrastructure far exceeds the capacity necessary for the storage of discreet, targeted communications or even for the storage of the routing information from all electronic communications. The capacity of NSA’s planned infrastructure is consistent, as a mathematical matter, with seizing both the routing information and the contents o all electronic communications.

Binney argues that when NSA officials have denied they are engaged in broad and indiscriminate “interception” of Americans’ communications, they are using that term “in a very narrow way,” analogous to the technical definition of “collection” above, not counting an e‑mail or call as “intercepted” until it has been reviewed by human eyes. On this theory, the entire burden of satisfying the Fourth Amendment’s requirement of “reasonableness” is borne by the “minimization procedures” governing the use of the massive Pinwale database. On this theory, the constitutional “search” does not occur when all these billions of calls and emails are actually intercepted (in the ordinary sense) and recorded by the NSA, but only when the database is queried.

This is a huge departure from what has traditionally been understood to be constitutionally permitted. We do not normally allow the government to indiscriminately make copies of everyone’s private correspondence, so long as they promise not to read it without a warrant: The copying itself is supposed to require a warrant, except in extraordinary circumstances. It appears almost certain that a very different rule is in effect now, at least for the NSA.

It cannot be overemphasized how dangerous such a change would be. Traditionally, a citizen’s right to private communication was either respected or violated at the time it occurred: Your rights would be violated in realtime, or not at all, and even in the lawless era of J. Edgar Hoover, only so many citizens could be spied on at once. Under this new regime, the threat to our rights is perpetual. Even if this administration and the next are scrupulous about respecting civil liberties, even if every man and woman currently employed by the NSA is noble and pure of heart, the conversation you have today may well be there for the use or misuse of whoever holds power in ten years, or fifteen, or twenty. Will the incumbent president in 2032 resist the temptation to hunt for dirt in online chats from his opponent’s college years—showing greater restraint than so many past presidents? One must hope so—but better to design the rules of a free society so that such leaps of faith aren’t required.