Matt Yglesias criticizes my comment in today’s USA Today when he writes, “making preventive health care free to the patient is…very cost-effective.”
Except it isn’t “free” to the patient.
And it isn’t cost-effective. The evidence strongly suggests we would “buy” as much health if we just waited for people to get sick and treated them then.
It’s gotten surprisingly little media attention thus far, but late last week the House Permanent Select Committee on Intelligence approved a bill to facilitate sharing and pooling of “cyber threat information” between private companies and government intelligence agencies—in particular, the übergeeks at the National Security Agency. It’s actually not a bad idea in principle. But the original draft was so broad that that the White House felt compelled to express concerns about the lack of privacy safeguards—which should give you pause, considering how seamlessly President Obama has shifted from thundering against the Patriot Act to quietly embracing the ongoing kudzu growth of our surveillance state. A few encouraging tweaks were hastily added before the committee approved it, but the bill’s current incarnation still punches an enormous hole in the wiretapping laws that have, for decades, been a primary guarantor of our electronic privacy.
First, a bit of context. Whenever you send an e‑mail, start an IM chat, place a VoIP call, visit a web page, or download a file, your traffic passes through many intermediary networks, starting with your own broadband or wireless provider. While savvy users will protect their sensitive communications with encryption, our expectation of privacy when we use the Internet is also safeguarded by federal law, which generally prohibits network owners providing transit services to the general public from intercepting, using, or disclosing the contents of other people’s communications in any way beyond what’s needed to get the traffic from sender to recipient in the ordinary course of business. There are exceptions, of course: for law enforcement monitoring subject to a warrant, for emergencies, for consensual interceptions, and for monitoring that’s necessary to the protection of a provider’s own network. But the presumption against interception is strong and typically hard to overcome. (Non-public networks, like a corporation’s private intranet, are another story, of course.) Communications metadata—the information about who is talking to whom, and by what route—is less stringently regulated, but carriers are still barred from sharing that information with the government absent some form of legal process. The motivation for all of this is the understanding that heavily regulated carriers, which also often compete for lucrative government contracts, would be subject to government pressure to “voluntarily” share their customers’ data (especially if the sharing could be done secretly). Thus, the law ensures that the government will have to observe the niceties of judicial process before digging through citizens’ private communications, rather than relying on the “informal cooperation” of intermediaries.
This generally salutary arrangement does, however, create some difficulties in the cybersecurity context. Carriers and cybersecurity providers who have visibility on multiple private networks will often be in an optimal position to detect a wide array of attack patterns, involving both metadata (where are apparent attacks coming from? what timing patterns do they exhibit) and contents (what characteristic “signatures” indicate the presence of viruses, malware, or mass phishing emails). This is information it’s highly valuable to have shared among providers—and, yes, the government too—and which generally doesn’t implicate the kinds of privacy interests wiretap law is supposed to protect. But legislators (or rather, the staffers who actually draft these bills) are generally keen to craft “tech neutral” laws that aren’t bound too tightly to current technologies and vulnerabilities, and therefore won’t be obsolete in the face of new tech or new threats. Unfortunately, this often entails erring on the side of breadth, which in this case means creating a massive loophole to remove a minor obstruction—the legislative equivalent of blowing your nose with C‑4.
The bill provides that, “notwithstanding any other provision of law,” a company that provides cybersecurity services for its own networks or others may use “cybersecurity systems” to acquire “cyber threat information,” and share such information with any other entity, including the government. (One of the amendments introduced last week stipulates that the government may use and share that information only when one “significant purpose” of such use is the protection of national security or cybersecurity.) The crucial question, of course, is what counts as “cyber threat information.” That term is defined to encompass:
information directly pertaining to a vulnerability of, or threat to a system or network of a government or private entity, including information pertaining to the protection of a system or network from—
(A) efforts to degrade, disrupt, or destroy such system or network; or
(B) theft or misappropriation of private or government information, intellectual property, or personally identifiable information.
The intention here is to cover the sort of information I talked about earlier—intrusion patterns and malware fingerprints. On a literal reading, though, it might also include Julian Assange’s personal IM conversations (assuming he ever had an unencrypted one), or e‑mails between security researchers. Moreover, one important purpose of this information sharing is to be able to distinguish malicious from benign traffic—which may mean combing through a big chunk of traffic logs surrounding a suspected or confirmed penetration attempt (and comparing those logs to others) in order to extract the hostile “signal” from the background noise. That makes it extremely likely that a substantial amount of wholly innocent, and potentially sensitive, information about ordinary Americans’ Internet activities will end up in the sharing pool. Many attacks will appear to originate from computers conscripted into malicious botnets by malware, unbeknownst to owners whose legitimate personal traffic could easily be swept in and shared as “cyber threat information” as well. The current proposal doesn’t require minimization or anonymization of personal information unless the companies sharing the information impose such conditions themselves. Finally, “cybersecurity systems” is sufficiently vaguely defined that one could even imagine a sysadmin with a vigilante streak reading it to include aggressive countermeasures, like spyware targeting suspected attackers. After all, “notwithstanding any other provision of law” includes provisions of (say) the Computer Fraud and Abuse Act that would place such tactics out of bounds.
Intelligence agencies are also empowered to share classified cyberintelligence with designated companies—and heaven help the firm that’s starved of that security information while their competitors have access to it. Another of the amendments added last week expressly bars conditioning such intelligence sharing on any particular company’s level of “voluntary” cooperation, and clarifies that the intelligence companies may not “task” private companies with obtaining specific types of information for them. Which is nice, but seems awfully hard to enforce in practice. What we’ve already seen, unfortunately, is that cozy long term collaborative relationships between carriers and intelligence agencies are breeding grounds for abuse, even when the law actually does prohibit the carriers from sharing information without legal process. It’s desirable to create legal space for limited cyberthreat information sharing—but it has to be done without creating a large and tempting backdoor through which government might seek to use “voluntary information sharing” as a way to avoid getting a warrant or court order.
Often when surveying the political landscape here in Washington, one can’t help but be struck by the feeling “is this the most important thing we have to discuss”? That was my reaction to today’s Politico story on party differences with extending the payroll tax cut. The difference, as Politico would have us believe, are that Democrats want millionaires to pay, while Republicans want government employees to bear the costs. It seems to be the case with whatever the issue is, who pays?
Quite simply, this debate between Republicans and Democrats over who should bear the costs of government is completely misplaced. We should be asking ourselves why the government has such a deep involvement in our lives in the first place.
If the government should not be involved in an activity, how is said activity any more just if its paid for by millionaires or the middle class. Would the fact that we have the largest prison population in the world somehow be more just if only more of the cost of it was borne by millionaires? Would having our failed drug war funded solely by millionaires turn it into a success? How about the U.S. playing world policeman? Would we be more loved around the world if our military was funded more by millionaires? Would we be viewed as honest brokers in the Middle East if our foreign aid was funded by millionaires? Is having children struck in failing public schools more just if those schools are funded by millionaires?
Here’s my offer to both my Democrat and Republican friends, you let me decide what the size and scope of government is going to be, and I am happy to let you decide upon “who pays”.
A new poll conducted for The Hill found that 67 percent of likely voters think members of Congress should take a pay cut. With the economy still struggling and the government’s debt continuing to mount, congressional pay is — understandably — a sore subject with voters. However, I get the impression that a lot of people think that cutting Congress’s budget would have a sizable impact on the government’s financial situation.
It wouldn’t.
The following chart shows fiscal 2011 spending for the House and Senate, the entire legislative branch, and the entire government:
Spending for the House and Senate, which includes salaries, mailings, and committee expenses, represents only .07 percent of total federal spending. The entire legislative branch includes additional expenses for the Government Accountability Office, the Congressional Budget Office, the Library of Congress, and other functions that can be viewed here. It only amounts to .14 percent of total federal spending.
Please do not take this post to mean that I believe that congressional pay is completely unimportant. The point is that congressional pay is relatively unimportant when measured against the overall size of the federal budget. Therefore, I think those readers who are concerned about government spending and debt should focus their attention on considerably larger problems like Social Security, Medicare, and military spending.
The Senate on Thursday passed the 2012 defense-authorization bill. It includes a controversial provision meant to put al-Qaeda suspects and their associates in military custody rather than prosecute them as criminals. The White House has rather weakly threatened a veto, complaining primarily that the bill undercuts their discretion in dealing with terrorists.
If the White House vetoes the bill, it will be for the wrong reasons. The trouble is not what the law mandates but what it affirms. It does not require the president to put any terrorists in military custody but rather to comply with a new bureaucratic process if he chooses not to do so. Even as we move toward the end of the wars in Iraq and Afghanistan, the law affirms a presidential power to detain anyone, including American citizens, in the name of fighting a nebulous and seemingly permanent terrorist menace. That is bad for both civil liberties and for our ability to think clearly about terrorism.
Most debate about the bill concerns section 1032. It says that the armed forces “shall hold” anyone that is part of al-Qaeda or an associated force and participants in an attack on the United States or its coalition partners for the course of hostilities authorized by Congress in 2001—and dispose of those suspects under laws of wars. American citizens are excluded. Thanks to a compromise negotiated by Armed Service Committee Chair Carl Levin (D‑MI) and Ranking Member John McCain (R‑AZ), the section now allows the secretary of defense, after consulting with the secretary of state and director of national intelligence, to keep the suspect in civilian courts by informing Congress that doing so serves national security.
The administration objects to 1032 largely because it undercuts their discretion. However, as Levin and McCain note in a recent op-ed, the administration still “determines whether a detainee meets the criteria for military custody.” The president could presumably just decline to label a detainee as someone fitting the requirements of military detention in the first place and try him in civilian court without getting a waiver from the secretary of defense.
The provision’s main relevance is as a talking point. Republicans already fond of castigating the president for allowing alleged terrorists to have their day in court can pretend that he is ignoring this law when he does so.
The real trouble with the bill is the preceding section, 1031. It “affirms” that the authorization of military force passed prior to the invasion of Afghanistan allows the president, through the military, to detain without trial al-Qaeda members, Taliban fighters, associated forces engaged in hostilities against the United States and those that support those groups. Nothing excludes American citizens.
The section says that it does not expand presidential war powers, but that contradicts its other language and common sense. By explicitly endorsing constitutionally dubious powers that the president already claims, Congress makes those claims more likely to survive legal challenge.
The 2001 Authorization of Military Force allows the president to make war on “nations, organizations, or persons” that he determines to have been involved in or aided the September 11 attacks and those that harbored these groups. Effectively, that meant al-Qaeda and the Taliban. Our last two presidents have used that authority to claim the right to kill or indefinitely detain anyone, anywhere that they decide is associated with some arm of al-Qaeda. The courts have trimmed these powers in ways that remain uncertain, particularly as applied to U.S. citizens. In Hamdi v. Rumsfeld, the Supreme Court held that the U.S. military has the power to detain without trial Americans captured on foreign battlefields but that the detainee can challenge the detention in court. Contrary to Carl Levin’s assertions, the ruling did not say that people seized in the United States fit that category.
This defense bill’s expansive list of enemies strengthens the president’s claim that he can detain almost anyone without trial in the name of counterterrorism. Future White House lawyers will cite it to justify those powers. Courts may tell Americans that challenge their detention on constitutional grounds that Congress’s endorsement of the president’s claims to detention powers makes them sounder.
The bill may even strengthen the president’s case for using other war powers, like killing citizens with drone strikes. That interpretation is bolstered by the detainee language’s similarity to the reauthorization of force contained in the House’s defense bill. That legislation explicitly gives the president the power to make war on al-Qaeda, the Taliban and associated forces. By using nearly identical language to describe who the president can detain under his war powers, the Senate bill may stealthily achieve the same end.
Liberalism means minimizing the exercise of war powers. To say, as backers of this legislation do, that the constitution allows our government to kill and detain people without trial is not an argument that we should do so often. Because those powers so offend liberalism, those that advocate them should have the burden of explaining why they are necessary, even if they are constitutional.
Instead, advocates of these extraordinary powers take it as nearly self-evident that military detention is somehow safer than criminal trials. But criminal proceedings, because they are adversarial, produce better information than military interrogations. That information makes the public better consumers of counterterrorism policies. Public debate does not always make better public policy, but it often helps.
You can see how by looking at the footnotes of books about terrorism, like the 9–11 report. Many of sources are records of criminal trials of terrorists. Had all those suspects been held without trial, their testimony and the government’s claims about them might have remained secret. What did become public would be less trustworthy because it would not have been vetted by an institutional adversary, as in court.
Take the case of Umar Farouk Abdulmutallab, the Underwear Bomber, and its connection to the killing of Anwar al-Awlaki, the jihadist propagandist killed earlier this year in Yemen. Both before and after getting a Miranda warning, Abdulmutallab apparently told his FBI interrogators a great deal of information about his trip to Yemen to prepare the explosives he tried to detonate in plane over Detroit. Had he not plead guilty on the first day of trial, prosecutors were set to argue that Awlaki had aided the plot. The government would have had to substantiate its claim that Awlaki, an American citizen, had graduated from being a propagandist to plotting attacks and therefore become a combatant they could legally kill—something they still have not done. The trial would have shed light on how the White House decides which of its citizens it can kill in the name of counterterrorism. That information would at least inform debate.
Civil liberties are a sufficient reason to oppose handing the executive the power to detain more or less whomever it wants. But our system of government does not divide powers simply for fairness. Unilateral decisions are more likely to be foolish ones.
The Orlando Sentinel published an article over the weekend titled “Education: Big reforms haven’t yet produced big results.” It seems to have been meant as a reality check, and certainly it does contain a few relevant facts, but it also leaves this statement from “critics” unchallenged: “schools won’t get better without more money.”
Slight problem: Florida’s k‑12 scholarship tax credit is raising academic achievement at less than half the per pupil cost of the traditional state-run schools. That’s according to academic studies commissioned by the state of Florida and by the state’s own spending and enrollment data.
Figlio and Hart, 2010, found that the scholarship tax credit program improves academic performance in public schools; and Figlio, 2011, found that students using the scholarships to attend independent schools are also benefiting academically. As for cost, the average scholarship is about $4,000. For comparison, the state’s public school districts spent $27 billion in 2009-10 (bottom of page 21, first column), for 2.6 million students, for per pupil spending of just over $10,000.
The American Psychiatric Association is revising its highly influential Diagnostic and Statistical Manual, currently known as DSM-IV (the fifth version will be “DSM‑V” or, since a switch to Arabic numbering is planned, “DSM‑5”). Nearly 8,000 persons have signed a petition, sponsored by the Society for Humanistic Psychology, Division 32 of the American Psychological Association, which challenges the revision’s proposed widening of the definitions of mental disorder. The letter associated with the petition warns that the revision proposes to lower diagnostic thresholds for many categories of disorder without good reason, as well as introducing new constructs such as “Internet Addiction Disorder” that have “no basis in the empirical literature.” The expansion could lead to inappropriate medical treatment as well as other ill effects.
David Foley at Labor Related spells out some of the legal implications for the workplace:
Among others, the changes in the DSM‑V could impact Americans with Disabilities Act claims (is the plaintiff disabled, what is a reasonable accommodation, etc), Family Medical Leave Act claims (does plaintiff suffer from a serious illness) and workers compensation laws (does plaintiff have an illness and was it caused by work).
Introducing a new category of Mild Neurocognitive Disorder, for example, could entitle workers to begin claiming job-related accommodation for cognitive deficits often associated with advancing age — perhaps especially significant since federal law has made it unlawful for most private employers to set policies of automatic retirement at any particular age. As Foley notes, the task force is also planning to reduce the diagnostic threshold for two disabilities that generate many ADA claims already: Attention Deficit Disorder and Generalized Anxiety Disorder.
Employers already face serious legal risks under existing law if they decline to accommodate employees with mental and behavioral deficits (which may include substance abuse, at least if the worker has entered rehab). As I noted the other day at Overlawyered, a hotel chain has agreed to pay $132,500 for dismissing an autistic front desk clerk rather than working with a state-paid “job coach” to remedy his deficiencies. The EEOC sued an insurance company that rescinded a job offer as an agent to an applicant after he tested positive for methadone. An Iowa jury awarded $1.1 million against a university for failing to accommodate an employee’s request for a lighter work load and other changes after she was diagnosed with depression, post-traumatic stress disorder and anxiety. And HR lawyers have warned employers that administering personality tests to new workers could violate the law by improperly revealing protected conditions such as “paranoid personality disorder.”
Earlier posts on the ADA and mental/behavioral deficits here (trucking firm sued for avoiding drivers with drinking history), here and here.