Today POLITICO Arena asks:

Does the Republican Party have a sore-loser problem?

My response:

Lisa Murkowski is Exhibit A of the GOP sore-loser syndrome. Poor little thing: She thought she was entitled to the seat. After all, Daddy gave it to her.

But she’s not alone: Charlie Crist, Bill McCollum, Bob Bennett, Bob Inglis, Mike Castle, Dede Scozzafava — all sitting on the sidelines, running against the primary opponents who beat them, or even endorsing the Democrat in the race. They confirm the Tea Party contention: They have no clue about the changes taking place beneath their feet. Lisa Murkowski talks about the bacon she’s brought back to Alaska. But unlike the people marching in Paris to protest moving the retirement age from 60 to 62, the growing Tea Party movement is marching across America with signs that say “We Want Less!” In other words, get out of the way so we can be free to plan and live our own lives.

Matt Kibbe of FreedomWorks, co-author with Dick Armey of the new book Give Us Liberty: A Tea Party Manifesto, has it exactly right when he says: “What you’re seeing in the Republican primaries amounts to a hostile takeover of the Republican Party – and I mean that in the technical sense of replacing a failed management and tired ideas.” It began, one could say, with slowly growing opposition to the two Bushes, who squandered the Reagan Revolution. It continued with the rejection, ultimately, of the Republican Congress that came to office in 1995, which in time forgot why it was elected as members grew far too comfortable in office. Today, the opposition to “business as usual” — to Republicans as “Democrat Lite” — has a full head of steam. A two-party system works only if the parties are distinct, standing on different principles. It’s taken a long time — since the New Deal — but that’s what we’re moving toward, and that’s good, because it gives voters a real choice.

Here is the test of whether we still live in a society governed by the rule of law: Will anyone at the FBI be fired over the latest report out of the Office of the Inspector General?

Let’s review. Earlier this year, a comprehensive OIG report revealed that for years the FBI had ignored the paper-thin procedures demanded by our National Security Letter statutes to obtain sensitive telecommunications records of thousands of Americans, not just without a court order—because apparently we’re fine with that now—but without any kind of legitimate process at all. With nothing more elaborate than a Post-It Note requesting the data. As far as the public record is concerned, nobody has suffered any consequences for this massive abuse of the public trust.

Now we learn that an FBI supervisor, in an exercise of spectacularly poor judgment, sent a rookie out to monitor an antiwar rally—evading the charge of monitoring Americans based exclusively on the basis of First Amendment protected activity only because of the laughable pretext that said rookie was there to eye the crowd for any international terrorists who might be in attendance. Fine. But when Congress got wind of this and began to inquire into why this had occurred—and why said rookie had filed a report on “antiwar activity” that focused on whether any persons of apparent “Middle Eastern descent” had been involved—the OIG found that someone at the FBI had utterly fabricated a retroactive justification for the investigation, involving dubious “terror suspects” that nobody had actually believed at the time might be present at this rally.

According to the FBI, this fabrication was then offered up by FBI Director Robert Mueller before the Bureau’s overseers in Congress. This leaves us with a limited number of possibilities. One is that the head of the FBI was aware of and welcomed what the OIG determined to be a complete invention designed to cover up for an improper investigation. If that’s what happened, the head of the FBI committed perjury and should be prosecuted for it. But the OIG doesn’t believe that’s how it went, and I’m inclined to believe them: It would be irrational to risk perjuring oneself before the Senate Judiciary Committee over a minor error like this, however foolish.

But then someone gave the FBI director a pack of lies to feed to Congress, and the OIG was inexplicably unable to trace this fabrication to its source—which even allowing for the FBI’s massively dysfunctional computer systems seems implausible. So now we have a pressing question: If we don’t think the head of the FBI decided to lie to Congress, who concocted the lies he told them? Are we to believe that the nation’s top cops are either so inept or so indifferent to the question that they can’t answer it? I suspect they very well could find out if they were so inclined. If they don’t, and if there are no consequences for this clumsy cover-up, why should we believe that congressional oversight of intelligence will ever discover or check abuse of investigative power? The message will be clear: Concoct lies to protect your bosses, and your colleagues will wink at your deception, perhaps grateful for having been spared the obligation of making up their own lies. One lie out of a hundred might be called out in an OIG report—they only have so much time and so many resources—but even if it is, no harm will come of it. The investigators will be mysteriously unable to identify the liar, and everything will blow over. Why risk telling the truth? The initial fuss will subside, and Americans will soon enough be distracted by the next episode of Jersey Shore.

I think we’ve had quite enough of that. Someone at the FBI decided that it was a good idea to lie to Congress in order to cover up improper monitoring of an unpopular political group. In this case, it was pacifists, but who knows who’ll be next. If brazen lies aren’t punished the one case out of a dozen or a hundred that draw the attention of the overseers, why should they ever bother to observe the rules? So watch the Department of Justice. If someone is fired over this, maybe we still live in a country governed by the rule of law. If not, they’re convinced we’re so dim and besotted by reruns of Friends that they no longer even feel obliged to put up a good show.

Thanks to the Obamacare legislation, we already know there will be a new 3.9 percent payroll tax on all investment income earned by so-called rich taxpayers beginning in 2013. And the capital gains tax rate will jump to 20 percent next year if the President gets his way. This sounds bad (and it is), but the news is even worse than you think. Here’s a new video from the Center for Freedom and Prosperity that exposes the atrociously unfair practice of imposing this levy on inflationary gains.

The mini-documentary uses a simple but powerful example of what happens to an investor who bought an asset 10 years ago for $5,000 and sold it this year for $6,000. The IRS will want 15 percent of the $1,000 gain (Obama wants the tax burden on capital gains to climb to 23.9 percent, but that’s a separate issue). Some people may think that a 15 percent tax is reasonable, but how many of those people understand that inflation during the past 10 years was more than 27 percent, and $6,000 today is actually worth only about $4,700 after adjusting for the falling value of the dollar? I’m not a math genius, but if the government imposes a $150 tax (15 percent of $1,000) on an investor who lost nearly $300 ($5,000 became $4,700), that translates into an infinite tax rate. And if Obama pushed the tax rate to almost 24 percent, that infinite tax rate gets…um…even more infinite.

The right capital gains tax, of course, is zero.

Canada’s private air traffic control system, Nav Canada, recently received its second “Eagle Award” from the International Air Transport Association. The Eagle Awards “honor air navigation service providers and airports for outstanding performance in customer satisfaction, cost efficiency, and continuous improvement.”

In naming Nav Canada “the best” ATC, the IATA said the following in its press release:

Nav Canada is a global leader in the efficient implementation and reliable delivery of air traffic control procedures and technologies. It actively engages its customers at all levels in regular and meaningful consultations. “The performance of Nav Canada has been enhanced by the right technical and operational investments following extensive cost/​benefit analyses. Nav Canada’s effective management has allowed the company to reduce its charges in 2006 and 2007, and freeze them at that level ever since,” Bisignani said.

Unlike the government-run ATC system in the U.S., Nav Canada is a privately run, not-for-profit corporation. As a Cato essay on privatization explains, the U.S. system leaves a lot to be desired while the private Canadian system has been a tremendous success:

The Federal Aviation Administration has been mismanaged for decades and provides Americans with second-rate air traffic control. The FAA has struggled to expand capacity and modernize its technology, and its upgrade efforts have often fallen behind schedule and gone over budget…The GAO has had the FAA on its watch list of wasteful “high-risk” agencies for years…Canada privatized its ATC system in 1996. It set up a private, nonprofit ATC corporation, Nav Canada, which is self-supporting from charges on aviation users. The Canadian system has received high marks for sound finances, solid management, and investment in new technologies.

Critics of privatization claim that it’s “too risky” to place such activities in the hands of the private sector. Canada’s success undermines that argument. In fact, air traffic control is far too important for such government mismanagement and should therefore be privatized. In doing so, policymakers should look to our neighbors to the north as a model for how to get the job done right.

See this Cato essay for more on airports and air traffic control.

The U.S. Senate may vote in the next few days on a piece of legislation known as the DREAM Act. The Development, Relief and Education for Alien Minors Act would offer legal status to as many as 2 million students who are currently in the United States without authorization, many of them Hispanic immigrants who entered the country illegally with their parents.

The act would legalize students who entered the United States at least five years before its passage and were under the age of 16 when they entered. A practical effect would be to make many of these students eligible for in-state tuition at colleges and universities.

The DREAM Act is not a perfect call for those of us who believe in limited government, but in our less-than-perfect world, the act would make a bad situation better. As I wrote earlier this year in a post on the Cato on Campus web site:

Ideally, there would be no reason to propose the DREAM Act if there were more opportunities for legal immigration and if the government were far less involved in providing higher education. Far fewer minor children would enter the country illegally if more work visas were provided for their parents to enter the country legally. In-state tuition and government aid would cease to be a major issue if responsibility for providing higher education shifted more to a competitive private sector.

Given our current system, however, the DREAM Act would somewhat improve a bad situation. It would extend legal status to a group of people who have completed high school, typically speak English well, and are thus able to pursue higher education or better support themselves in the labor market. It would help to maintain a healthy growth rate of the U.S. labor force and provide entrepreneurial spirit associated with immigrants.

The DREAM Act would also extend more equitable treatment to students whose lack of legal status is no fault of their own. Their parents, although undocumented, have usually paid the same sales and property taxes paid by legal residents with similar incomes. The DREAM Act would lift thousands of students out of a legal netherworld and allow them to improve themselves while at the same time contribute to a more productive United States.

Social conservatives talk about real problems but offer irrelevant solutions. They act like the man who searched for his keys under the streetlight because the light was better there.

Social conservatives tend to talk about issues like abortion and gay rights, stem-cell research and the role of religion “in the public square”: “Those who would have us ignore the battle being fought over life, marriage and religious liberty have forgotten the lessons of history,” said Rep. Mike Pence (R‑Ind.) at the Values Voter Summit.

But what is the case for social conservatism that they’ve been making at the summit and in recent interviews?

• Mike Huckabee: “We need to understand there is a direct correlation between the stability of families and the stability of our economy.… The real reason we have poverty is we have a breakdown of the basic family structure.”
• Jim DeMint: “It’s impossible to be a fiscal conservative unless you’re a social conservative because of the high cost of a dysfunctional society.”
• Rick Santorum: “We can have no economic freedom unless we have good, virtuous moral people inspired by their faith.”

Those are reasonable concerns, but they have little or no relationship to abortion or gay marriage. Abortion may be a moral crime, but it isn’t the cause of high government spending or intergenerational poverty. And gay people making the emotional and financial commitments of marriage is not the cause of family breakdown or welfare spending.

When Huckabee says that “a breakdown of the basic family structure” is causing poverty — and thus a demand for higher government spending — he knows that he’s really talking about unwed motherhood, divorce, children growing up without fathers, and the resulting high rates of welfare usage and crime. Those also make up the “high cost of a dysfunctional society” that worries DeMint.

But take a look at the key issues of the chief social-conservative group, the Family Research Council — 7 papers on abortion and stem cells, 5 on gays and gay marriage, 1 on divorce. Nothing much has changed since 1994, when I wrote in the New York Times:

The Family Research Council, the leading “family values” group, is similarly obsessed. In the most recent index of its publications, the two categories with the most listing are “Homosexual” and “Homosexual in the Military” — a total of 34 items (plus four on AIDS). The organization has shown some interest in parenthood — nine items on family structure, 13 on parenthood and six on teen pregnancy — yet there are more items on homosexuality than on all of those issues combined. There was no listing for divorce. (Would it be unfair to point out that there are two items on “Parents’ Rights” and none on “Parents’ Responsibilities”?)

Back then, conservatives still defended sodomy laws, as Santorum continued to do as late as 2003. These days, after the 2003 Supreme Court decision striking down such laws, most have moved on (though not the Montana and Texas Republican parties). Now they just campaign against gays in the military, gays adopting children, and gays getting married.

Why all the focus on issues that would do nothing to solve the problems of “breakdown of the basic family structure” and “the high cost of a dysfunctional society”? Well, solving the problems of divorce and unwed motherhood is hard. And lots of Republican and conservative voters have been divorced. A constitutional amendment to ban divorce wouldn’t go over very well with even the social-conservative constituency. Far better to pick on a small group, a group not perceived to be part of the Republican constituency, and blame them for social breakdown and its associated costs.

But you won’t find your keys on Main Street if you dropped them on Green Street, and you won’t reduce the costs of social breakdown by keeping gays unmarried and not letting them adopt orphans.

The law normally advances by small and cautious steps—by the gradual extension of established precedents and rules to novel problems and fact patterns. Little wonder, then, that tricky questions of law often amount to conflicts between competing metaphors. Is a hard drive like a closed briefcase whose contents are all fair game for police once the “container” is legitimately opened? Or is it more like a warehouse containing hundreds or thousands of individual closed containers? If the latter, what are the “containers”? Directories? Individual files?

A similar metaphor war figures in the FBI’s effort to expand its authority to acquire information from Internet Service Providers using National Security Letters, which are issued by agents without judicial oversight, and typically forbid providers from disclosing anything about the demand for records. The Bureau had long assumed that the NSL statutes gave them broad authority to get “electronic communications transaction records”—information about your online communications, though not the contents of the communications themselves—as long as they certified that those records would be “relevant” to a national security investigation, a far lower standard than the Fourth Amendment’s “probable cause.” But in a 2008 opinion, the Bush administration’s Office of Legal Counsel rejected this interpretation, finding that NSLs could only be used to obtain the particular types of records specified in the statute, including “toll billing records.” For Internet accounts, this meant the FBI could only get “information parallel to… toll billing records for ordinary telephone service.”

The obvious question is what, exactly, constitutes information “parallel to” a toll billing record in the online context. The FBI would prefer to resolve the ambiguity by simply amending the law to give them blanket authority to acquire transaction records. In particular, according to The Washington Post, government lawyers think they can obtain “the addresses to which an Internet user sends e‑mail; the times and dates e‑mail was sent and received; and possibly a user’s browser history.” On its face, this sounds like a reasonable reading. An important 1979 Supreme Court case, Smith v. Maryland, held that the information contained in telephone “toll billing records”—the itemized list of calls placed and received you’d find on a standard phone bill—didn’t enjoy Fourth Amendment protection, and so unlike the contents of phone conversations themselves, could be obtained by the government without a full probable cause warrant. Surely the obvious equivalent in the online context is the list of e‑mail addresses in an Internet user’s inbox and outbox? At a second glance, though, there are some problems with that metaphor, of two central kinds.

First, there’s a problem with the formal analogy. The Court in Smith supported their finding of a diminished privacy interest in toll billing records on numerous grounds. For one, the Court noted that because one’s itemized phone bill did contain these numbers, no reasonable person could be unaware that this information was “exposed” to employees of the phone company and retained as a matter of course among the company’s business records. Of course, it’s now increasingly common for phone companies to charge a flat rate rather than billing by individual calls, and so the legislative history of the NSL statutes makes clear that by “toll billing records” they mean information that could be used to assess a charge, even if a company happened not to charge that way.

The analogy gets pretty strained when we come to Internet services, though. At the time the laws in question here were written, ISPs almost universally charged people for the amount of time they were connected, not by the number of individual e‑mails sent. Now it’s much more common to simply play a flat monthly fee for broadband connection, though you also sometimes see plans where there’s a charge by the megabyte above a certain threshold of bandwidth usage. Your ISP, of course has technical access to the list of e‑mail addresses you’ve communicated with—just as they have the ability to access the e‑mails themselves—but no major service, as far as I know, has ever actually kept this list as a separate billing record.

But maybe that’s not the right way to apply the metaphor. Maybe what’s important is whether those to/​from e‑mail records are substantively “parallel to” the kind of information you’d traditionally find in telephone toll billing records. As the Smith Court observed, a list of phone numbers was far less revealing and sensitive than the actual conversation—it revealed nothing of the “purport” of the communication itself, or even who was on the call. But as soon as we start to think more carefully about how we actually use e‑mail in the real world, it becomes clear that the analogy is far from perfect.

One thing lots of people do with e‑mail, after all, is participate in mailing lists and discussion groups. Records of this sort, then, are likely to reveal the membership in potentially controversial social, political, or religious groups—and the Supreme Court has also found that such membership lists enjoy First Amendment protection as a component of freedom of association. But they’d also reveal much more than that. The closest telephone analogue to a mailing list discussion is probable a conference call. An investigator who obtained toll billing records for such a call would, at most, have learned that a certain number of people called in for a certain amount of time; they’d learn nothing about who spoke in response to whom, or how much, and who remained silent. Someone getting e‑mail transaction records would have a much more detailed picture of who was vocal and who was silent, the order and frequency with which participants spoke, and so on. And more generally, people in practice do not use e‑mail like traditional letters: They tend to have exchanges in which each individual e‑mail is more like a piece of the longer conversation.

There are also many common uses of e‑mail that don’t really have close analogies in the telephonic context. If I make a purchase from Amazon, win an Ebay auction, make an OpenTable restaurant reservation, register for a conference at a local think tank, or place a Craigslist ad, that will typically generate an automatic confirmation e‑mail from the site, and the e‑mail address from which the site comes will often reveal something about the nature of the transaction. (My inbox has messages from auto-confirm, order-update, ship-confirm, and store-news @amazon.com—inherently more revealing than the mere fact that I called some mail-order vendor.) It’s not a particularly big deal in those cases, but such e‑mails could also reveal that I had opened or closed or modified an account at a particular politically, sexually, or religiously oriented Web site, or subscribed to a specific publication.

For an example of just how sensitive and revealing such task-specific e‑mail addresses can be, consider Craigslist in particular. The site—which for those who haven’t used it is the vast online equivalent of the newspaper’s classified section—generates an individual anonymized e‑mail addresses for each ad placed, so that users don’t have to expose their own contact information to the world. Yet while this provides anonymity against the general public, it also makes those mere e‑mail addresses much more revealing to the government agent who obtains transaction records. That’s because each ad can be linked to a particular e‑mail address, so if you’ve sent a message to pers-​1234567-​ABCD@​craigslist.​com, the government may not know exactly who you’ve written, but they can determine why you’re writing: To respond to an ad offering a handgun for sale, say, or one soliciting a foot fetishist for a “casual encounter.”

The point is not just that investigators shouldn’t be able to get e‑mail transaction records without a probable cause warrant—though I happen to think that would be a reasonable standard. It’s that metaphors can mislead us: We need to look past the easy equivalencies between new technologies and more traditional forms of communication, and drill down to see the full range of privacy interests implicated given the real-world practices of ordinary people who use those technologies.