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GPS Tracking and a ‘Mosaic Theory’ of Government Searches
The Electronic Frontier Foundation trumpets a surprising privacy win last week in the U.S. Court of Appeals for the D.C. Circuit. In U.S. v. Maynard (PDF), the court held that the use of a GPS tracking device to monitor the public movements of a vehicle—something the Supreme Court had held not to constitute a Fourth Amendment search in U.S. v Knotts—could nevertheless become a search when conducted over an extended period. The Court in Knotts had considered only tracking that encompassed a single journey on a particular day, reasoning that the target of surveillance could have no “reasonable expectation of privacy” in the fact of a trip that any member of the public might easily observe. But the Knotts Court explicitly reserved judgment on potential uses of the technology with broader scope, recognizing that “dragnet” tracking that subjected large numbers of people to “continuous 24-hour surveillance.” Here, the DC court determined that continuous tracking for a period of over a month did violate a reasonable expectation of privacy—and therefore constituted a Fourth Amendment search requiring a judicial warrant—because such intensive secretive tracking by means of public observation is so costly and risky that no reasonable person expects to be subject to such comprehensive surveillance.
Perhaps ironically, the court’s logic here rests on the so-called “mosaic theory” of privacy, which the government has relied on when resisting Freedom of Information Act requests. The theory holds that pieces of information that are not in themselves sensitive or potentially injurious to national security can nevertheless be withheld, because in combination (with each other or with other public facts) permit the inference of facts that are sensitive or secret. The “mosaic,” in other words, may be far more than the sum of the individual tiles that constitute it. Leaving aside for the moment the validity of the government’s invocation of this idea in FOIA cases, there’s an obvious intuitive appeal to the idea, and indeed, we see that it fits our real world expectations about privacy much better than the cruder theory that assumes the sum of “public” facts must always be itself a public fact.
Consider an illustrative hypothetical. Alice and Bob are having a romantic affair that, for whatever reason, they prefer to keep secret. One evening before a planned date, Bob stops by the corner pharmacy and—in full view of a shop full of strangers—buys some condoms. He then drives to a restaurant where, again in full view of the other patrons, they have dinner together. They later drive in separate cars back to Alice’s house, where the neighbors (if they care to take note) can observe from the presence of the car in the driveway that Alice has an evening guest for several hours. It being a weeknight, Bob then returns home, again by public roads. Now, the point of this little story is not, of course, that a judicial warrant should be required before an investigator can physically trail Bob or Alice for an evening. It’s simply that in ordinary life, we often reasonably suppose the privacy or secrecy of certain facts—that Bob and Alice are having an affair—that could in principle be inferred from the combination of other facts that are (severally) clearly public, because it would be highly unusual for all of them to be observed by the same public. Even more so when, as in Maynard, we’re talking not about the “public” events of a single evening, but comprehensive observation over a period of weeks or months. One must reasonably expect that “anyone” might witness any of such a series of events; it does not follow that one cannot reasonably expect that no particular person or group would be privy to all of them. Sometimes, of course, even our reasonable expectations are frustrated without anyone’s rights being violated: A neighbor of Alice’s might by chance have been at the pharmacy and then at the restaurant. But as the Supreme Court held in Kyllo v US, even when some information might in principle be possible to obtain public observation, the use of technological means not in general public use to learn the same facts may nevertheless qualify as a Fourth Amendment search, especially when the effect of technology is to render easy a degree of monitoring that would otherwise be so laborious and costly as to normally be infeasible.
Now, as Orin Kerr argues at the Volokh Conspiracy, significant as the particular result in this case might be, it’s the approach to Fourth Amendment privacy embedded here that’s the really big story. Orin, however, thinks it a hopelessly misguided one—and the objections he offers are all quite forceful. Still, I think on net—especially as technology makes such aggregative monitoring more of a live concern—some kind of shift to a “mosaic” view of privacy is going to be necessary to preserve the practical guarantees of the Fourth Amendment, just as in the 20th century a shift from a wholly property-centric to a more expectations-based theory was needed to prevent remote sensing technologies from gutting its protections. But let’s look more closely at Orin’s objections.
First, there’s the question of novelty. Under the mosaic theory, he writes:
[W]hether government conduct is a search is measured not by whether a particular individual act is a search, but rather whether an entire course of conduct, viewed collectively, amounts to a search. That is, individual acts that on their own are not searches, when committed in some particular combinations, become searches. Thus in Maynard, the court does not look at individual recordings of data from the GPS device and ask whether they are searches. Instead, the court looks at the entirety of surveillance over a one-month period and views it as one single “thing.” Off the top of my head, I don’t think I have ever seen that approach adopted in any Fourth Amendment case.
I can’t think of one that explicitly adopts that argument. But consider again the Kyllo case mentioned above. Without a warrant, police used thermal imaging technology to detect the presence of marijuana-growing lamps within a private home from a vantage point on a public street. In a majority opinion penned by Justice Scalia, the court balked at this: The scan violated the sanctity and privacy of the home, though it involved no physical intrusion, by revealing the kind of information that might trigger Fourth Amendment scrutiny. But stop and think for a moment about how thermal imaging technology works, and try to pinpoint where exactly the Fourth Amendment “search” occurs. The thermal radiation emanating from the home was, well… emanating from the home, and passing through or being absorbed by various nearby people and objects. It beggars belief to think that picking up the radiation could in itself be a search—you can’t help but do that!
When the radiation is actually measured, then? More promising, but then any use of an infrared thermometer within the vicinity of a home might seem to qualify, whether or not the purpose of the user was to gather information about the home, and indeed, whether or not the thermometer was precise enough to reveal any useful information about internal temperature variations within the home. The real privacy violation here—the disclosure of private facts about the interior of the home—occurs only when a series of very many precise measurements of emitted radiation are processed into a thermographic image. To be sure, it is counterintuitive to describe this as a “course of conduct” because the aggregation and analysis are done quite quickly within the processor of the thermal camera, which makes it natural to describe the search as a single act: Creating a thermal image. But if we zoom in, we find that what the Court deemed an unconstitutional invasion of privacy was ultimately the upshot of a series of “public” facts about ambient radiation levels, combined and analyzed in a particular way. The thermal image is, in a rather literal sense, a mosaic.
The same could be said about long-distance spy microphones: Vibrating air is public; conversations are private. Or again, consider location tracking, which is unambiguously a “search” when it extends to private places: It might be that what is directly measured is only the “public” fact about the strength of a particular radio signal at a set of receiver sites; the “private” facts about location could be described as a mere inference, based on triangulation analysis (say), from the observable public facts.
There’s also a scope problem. When, precisely, do individual instances of permissible monitoring become a search requiring judicial approval? That’s certainly a thorny question, but it arises as urgently in the other type of hypothetical case alluded to in Knotts, involving “dragnet” surveillance of large numbers of individuals over time. Here, too, there’s an obvious component of duration: Nobody imagines that taking a single photograph revealing the public locations of perhaps hundreds of people at a given instant constitutes a Fourth Amendment search. And just as there’s no precise number of grains of sand that constitutes a “heap,” there’s no obvious way to say exactly what number of people, observed for how long, are required to distinguish individualized tracking from “dragnet” surveillance. But if we anchor ourselves in the practical concerns motivating the adoption of the Fourth Amendment, it seems clear enough that an interpretation that detected no constitutional problem with continuous monitoring of every public movement of every citizen would mock its purpose. If we accept that much, a line has to be drawn somewhere. As I recall, come to think of it, Orin has himself proposed a procedural dichotomy between electronic searches that are “person-focused” and those that are “data-focused.” This approach has much to recommend it, but is likely to present very similar boundary-drawing problems.
Orin also suggests that the court improperly relies upon a “probabilistic” model of the Fourth Amendment here (looking to what expectations about monitoring are empirically reasonable) whereas the Court has traditionally relied on a “private facts” model to deal with cases involving new technologies (looking to which types of information it is reasonable to consider private by their nature). Without recapitulating the very insightful paper linked above, the boundaries between models in Orin’s highly useful schema do not strike me as quite so bright. The ruling in Kyllo, after all, turned in part on the fact that infrared imaging devices are not in “general public use,” suggesting that the identification of “private facts” itself has an empirical and probabilistic component. The analyses aren’t really separate. What’s crucial to bear in mind is that there are always multiple layers of facts involved with even a relatively simple search: Facts about the strength of a particular radio signal, facts about a location in a public or private place at a particular instant, facts about Alice and Bob’s affair. In cases involving new technologies, the problem—though seldom stated explicitly—is often precisely which domain of facts to treat as the “target” of the search. The point of the expectations analysis in Maynard is precisely to establish that there is a domain of facts about macro-level behavioral patterns distinct from the unambiguously public facts about specific public movements at particular times, and that we have different attitudes about these domains.
Sorting all this out going forward is likely to be every bit as big a headache as Orin suggests. But if the Fourth Amendment has a point—if it enjoins us to preserve a particular balance between state power and individual autonomy—then as technology changes, its rules of application may need to get more complicated to track that purpose, as they did when the Court ruled that an admirably simple property rule was no longer an adequate criterion for identifying a “search.” Otherwise we make Fourth Amendment law into a cargo cult, a set of rituals whose elegance of form is cold consolation for their abandonment of function.
When Keynesians Attack, Part II
I’m still dealing with the statist echo chamber, having been hit with two additional attacks for the supposed sin of endorsing Reaganomics over Obamanomics (my responses to the other attacks can be found here and here). Some guy at the Atlantic Monthly named Steve Benen issued a critique focusing on the timing of the recession and recovery in Reagan’s first term. He reproduces a Krugman chart (see below) and also adds his own commentary.
Reagan’s first big tax cut was signed in August 1981. Over the next year or so, unemployment went from just over 7% to just under 11%. In September 1982, Reagan raised taxes, and unemployment fell soon after. We’re all aware, of course, of the correlation/causation dynamic, but as Krugman noted in January, “[U]nemployment, which had been stable until Reagan cut taxes, soared during the 15 months that followed the tax cut; it didn’t start falling until Reagan backtracked and raised taxes.”
This argument is absurd since the recession in the early 1980s was largely the inevitable result of the Federal Reserve’s misguided monetary policy. And I would be stunned if this view wasn’t shared by 90 percent-plus of economists. So it is rather silly to say the recession was caused by tax cuts and the recovery was triggered by tax increases.
But even if we magically assume monetary policy was perfect, Benen’s argument is wrong. I don’t want to repeat myself, so I’ll just call attention to my previous blog post which explained that it is critically important to look at when tax cuts (and increases) are implemented, not when they are enacted. The data is hardly exact, because I haven’t seen good research on the annual impact of bracket creep, but there was not much net tax relief during Reagan’s first couple of years because the tax cuts were phased in over several years and other taxes were going up. So the recession actually began when taxes were flat (or perhaps even rising) and the recovery began when the economy was receiving a net tax cut. That being said, I’m not arguing that the Reagan tax cuts ended the recession. They probably helped, to be sure, but we should do good tax policy to improve long-run growth, not because of some misguided effort to fine-tune short-run growth.
The second attack comes from some blog called Econospeak, where my newest fan wrote:
I’m scratching my head here as I thought the standard pseudo-supply-side line was that the deficit exploded in the 1980’s because government spending exploded. OK, the truth is that the ratio of Federal spending to GDP neither increased nor decreased during this period. Real tax revenues per capita fell which is why the deficit rose but this notion that the burden of government fell is not factually based.
Those are some interesting points, and I might respond to them if I wanted to open a new conversation, but they’re not germane to what I said. In my original post (the one he was attacking), I commented on the “burden of government” rather than the “burden of government spending.” I’m a fiscal policy economist, so I’m tempted to claim that the sun rises and sets based on what’s happening to taxes and spending, but such factors are just two of the many policies that influence economic performance. And with regard to my assertion that Reagan reduced the “burden of government,” I’ll defer to the rankings put together for the Economic Freedom of the World Index. The score for the United States improved from 8.03 to 8.38 between 1980 and 1990 (my guess is that it peaked in 1988, but they only have data for every five years). The folks on the left may be unhappy about it, but it is completely accurate to say Reagan reduced the burden of government. And while we don’t yet have data for the Obama years, there’s a 99 percent likelihood that America’s score will decline.
This is not a partisan argument, by the way. The Economic Freedom of the World chart shows that America’s score improved during the Clinton years, particularly his second term. And the data also shows that the U.S. score dropped during the Bush years. This is why I wrote a column back in 2007 advocating Clintonomics over Bushonomics. Partisan affiliation is not what matters. If we want more prosperity, the key is shrinking the burden of government.
Last but not least, I try to make these arguments to the folks watching MSNBC.
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Great New Blog in English by Cubans in Cuba
During the past several years, the growth of the Cuban dissident blogger movement has become a major irritant to the Cuban regime. Some bloggers, such as Yoani Sanchez, are becoming well known around the world. Her blog has even been available in English for a few years. I’ve written about her here and Cato published a recent paper by her.
The Cuban blogosphere is vibrant and diverse, but has been available almost exclusively in Spanish. Now, a new English blog site, Translating Cuba, is posting the thoughts of leading Cuban bloggers in Cuba, including Sanchez and recent hunger striker Guillermo Fariñas. Contributors to the site don’t share identical points of view, but they hope that “the voices on this site will mirror the free, open and plural society we all know that Cuba is ultimately destined to be.”
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Live from the Fancy Farm Picnic
I went back home to Kentucky to attend the Fancy Farm Picnic last Saturday. It may be the biggest political event in the state; it takes place every August, 10 miles from where I grew up, and somehow I’d never attended before. It was time. I got there just in time to hear Senate candidates Jack Conway and Rand Paul give their 7‑minute speeches. (There are lots of speakers, and timekeepers are strict.) There were plenty of advocates for both candidates among the 2000 or so people watching. It’s an old Democratic area, but they’re conservative Democrats who now mostly vote Republican in federal races.
It was well over 90 degrees and humid, so both candidates handed out fans:
As I listened to the candidates, my main impression was this: Conway accused Rand Paul of being an extremist, and Paul accused Conway of being a Democrat. The question for November is which charge will stick.
Gov. Steve Beshear, introducing Conway, warmed up the attack: “[Paul] is going to balance the federal budget on the backs of our school children. He’s going to balance the federal budget on the backs of our coal miners. On the backs of our farmers. On the backs of our law enforcement officials,” he shouted. “The entire commonwealth of Kentucky — Republicans, Democrats and independents — ought to be scared to death about Rand Paul!” Referring to last year’s controversy over Conway’s calling himself a “tough son of a bitch” — it’s a church picnic, after all — and the “seven words you can’t say on television,” Paul said, “There are six more words you won’t hear Jack Conway say [on the campaign trail]: President Obama, Nancy Pelosi and Harry Reid.”
So which do Kentucky voters dislike more: the national Democratic party’s big-government agenda or the prospect that Rand Paul might actually try to cut the size of government? In a world where everyone gets something from government, it’s not obvious. But so far Paul is holding on to a lead in the polls. In Fancy Farm, I noticed that all the Conway supporters had the campaign’s official signs and buttons, plus hand-lettered signs that had clearly been produced in campaign offices, such as this “NeanderPaul” sign that I picked up after the shouting was over:
Paul’s supporters, on the other hand, brought a lot of their own homemade signs. Conway’s supporters were more disciplined. You didn’t see any Conway supporters showing up dressed as Abraham Lincoln or a colonial soldier (though news reports say there was a guy dressed as a “neanderthal” holding the above sign), or wearing T‑shirts reading “Who is John Galt?” The greater grass-roots enthusiasm for Paul has both pluses and minuses. Clearly he’s appealing to stronger currents than mere partisan politics and generating more enthusiasm. But that means he’s more at risk of supporters doing things that might embarrass the campaign.
Both candidates accused the other of “flip-flopping.” Conway’s team erected a “Rand Paul’s Waffle House” in the familiar yellow-and-black design and claimed he was waffling and flip-flopping on a number of issues. (Are waffling and flip-flopping the same thing? Not really.) Paul’s campaign handed out flip-flops labeled “cap” and “trade” to draw attention to Conway’s alleged backing away from his previous support for the “cap and trade” energy legislation.
One thing you can say about the Fancy Farm Picnic, it’s the best $10 meal you’ll ever eat — Kentucky pork and mutton, fresh-picked tomatoes and corn, and homemade pies and cakes.
And one final thought: They estimate that 15,000 people attend the picnic but that only 2,000 listen to the political speeches, which is a good reminder of reality for us political junkies. And that estimate would seem to be confirmed by my reflection after the weekend that, except for the drive from Mayfield to Fancy Farm, I drove about 500 miles in Kentucky this weekend and I’m not sure I ever saw a campaign sign or bumper sticker. The election is still almost three months away, and politics just isn’t life for most people.
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‘Border Enforcement’ Bill Driven by Election-Year Politics
A $600-million bill to enhance border enforcement has hit a temporary snag in the Senate, but it is almost inevitable, with an election only a few months away, that Congress and the president will spend yet more money trying to enforce our unworkable immigration laws.
“Getting control of the border” is the buzz phrase of the day for politicians in both parties, from Sen. John McCain, R‑Ariz., to Sen. Chuck Schumer, D‑N.Y. Never mind that apprehensions are down sharply along our Southwest border with Mexico, mostly I suspect because of the lack of robust job creation in the unstimulated Obama economy.
Meanwhile, since the early 1990s, spending on border enforcement has increased more than 700 percent, and the number of agents along the border has increased five-fold, from 3,500 to more than 17.000. (See pages 3–4 of a January 2010 report from the Center for American Progress and the Immigration Policy Center.) Yet the population of illegal immigrants in America tripled during that period. If this were a federal education program, conservatives would rightly accuse the big spenders of merely throwing more money at a problem without result.
To pay for this politically driven expenditure, Congress plans to nearly double fees charged for H1‑B and L visas used by foreign high-tech firms to staff their operations in the United States. The increased visa tax will fall especially hard on companies such as the Indian high-tech leaders Wipro, Infosys, and Tata.
This all has the ring of election-year populism. Congress pretends to move us closer to solving the problem of illegal immigrants entering from Latin America by raising barriers to skilled professionals coming to the United States from India and elsewhere to help us maintain our edge in competitive global technology markets.
Federal Government Is a Lucrative ‘Industry’
The Bureau of Economic Analysis latest release of industry compensation levels shows that the average federal worker ranks up at the top along with employees in the finance and energy industries. That’s not exactly popular company these days.
The BEA presents compensation data for 72 industries that span the U.S. economy. Figure 1 shows the 20 industries with the highest levels of average compensation, which includes wages and benefits. It also shows the average for all U.S. private industries and the average for the industry with the lowest compensation. (The names of the industries have been simplified in some cases).
Federal civilian workers have the sixth highest average compensation of the 72 industries:
As yesterday’s post showed, federal employee compensation has exploded over the course of the decade. Figure 2 shows that this federal employee compensation growth has been the fifth highest of the 72 industries measured by the BEA: