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.

I hope you missed David Brooks’ New York Times column recently extolling the virtues of excruciating pain. The op-ed, entitled, “A Case for Mental Courage,” is Brooks at his depressing, neocon worst. He starts out by describing in way too much detail the agony Fanny Burney, a early 19th century novelist, experienced when she had a mastectomy without anesthesia. “I then felt the Knife rackling against the breastbone…” and so on. Thanks for sharing, David, but, really, why? Well, because it turns out that heroism is to be found “in the ability to face unpleasant thoughts.” Hmmm. The underlying major problem that afflicts our nation, says Brooks, is that capitalism has undermined the idea that people are “inherently sinful.” Our culture “places less emphasis on the need to struggle against one’s own mental feebleness.”

It also turns out that America is too “geared toward pleasuring consumers, not putting them on some arduous character building regime.” In the good old days, Brooks intones, “this meant conquering mental laziness with arduous and sometimes numbingly boring lessons. It meant conquering frivolity by sitting through earnest sermons and speeches. It meant conquering self-approval by staring straight at what was painful.” Sign me up, David, you neocons look like a fun bunch. How is it that Mencken defined a Puritan? Someone who lives in constant fear that someone, somewhere is having a good time?

And therein lies the disconnect between most neoconservatives and America. Thomas Jefferson (someone who always liked to have a good time, if you get my drift) put it right there in the Declaration: We are going to be a nation that recognizes the unalienable right to “Life, Liberty and the Pursuit of Happiness.” Mastectomies sans anesthesia would not seem to fall into the category of the pursuit of happiness.

We should celebrate the fact that the pursuit of happiness is primarily an individualistic pursuit — something that rubs against the grain of neoconservatism. Some years back, Brooks wrote, “ultimately American purpose can find its voice only in Washington…individual ambition and willpower are channeled into the cause of national greatness. And by making the nation great, individuals are able to join their narrow concerns to a larger national project.” That philosophy, of course, was tried a couple of times in the 20th century and found a bit wanting. Especially if you count the tens of millions of human beings who died because of it. On the other hand, they did suffer.

Last Wednesday, former Pakistani President and military leader Pervez Musharraf announced he intends to return home as head of a new political party called the All Pakistan Muslim League. Sources close to Musharraf say he is reportedly eyeing the presidency and prime ministership. Amid ongoing political unrest and economic uncertainty under the leadership of President Ali Asif Zardari, U.S. leaders may hope that Musharraf can bring some semblance of stability to the country given recent developments, but his return could be something of a mixed blessing.

On Friday, Imran Farooq, a founding leader of MQM (Muttahida Quami Movement), the fourth-largest political party in Pakistan, was stabbed to death in London. Since 2009, more than 200 MQM workers and supporters have been the victims of targeted killings. Because MQM dominates the Muhajir urban centers of Sindh, including Karachi—Pakistan’s largest city of more than 16 million—each targeted killing unleashes waves of violence that further contributes to the city’s deteriorating law and order situation. Indeed, when news of Farooq’s death reached Karachi, rioters torched vehicles and scores of people were killed and injured.

These targeted killings reflect a multi-dimensional problem. Part of it is tit-for-tat gang warfare between Muhajir-dominant MQM and Pashtun-dominant ANP (Awami National Party). [Note: When I was in Karachi a couple years back, I was warned to steer clear of certain areas that were MQM “turf.”] It is important to note, however, that MQM has made it a point not to conflate violence with Pashtuns; in fact, ANP continues to make it a point of joining the two together in order to condemn MQM for highlighting the increasing number of Taliban seeking refuge in Pashtun areas of Karachi. Another part of this ongoing violence is competition over new development in the city, the ANP’s resistance to the government’s redress of illegal land encroachment, and the collusion of political parties with criminal networks and religious extremists. MQM has been quite vocal about what they called the increased “Talibanisation” of Karachi, a concern that foreign diplomats have continually ignored.

The tragedy is that Musharraf was driven from power to bring democratic governance back to Pakistan. But despite his back-room dealings that brought an incompetent Zardari to power, and a crackdown on the judiciary that led to the former military leader’s ignominious resignation, Pakistanis stuck in desperate straights might welcome Musharraf back with open arms. Perhaps if he returns to the political game, the West will pay more attention to events unfolding in Pakistan.

The Washington Post has an interesting report about the huge amount of money that Fairfax County spends to go after gambling. The story cites critics who ask “why law enforcement spends valuable time and money on combating sports gambling. The answer is obvious — and explicit in the story: “…police in Virginia are allowed to keep 100 percent of the assets they seize in state gambling cases.” In other words, harassing the gambling business is a profit-making endeavor for police. And it also can be deadly since cops killed an optometrist during a SWAT arrest. The Institute for Justice has a powerful video on the dangers of “policing for profit,” and Fairfax County is just one bad example of how this lures cops into misallocating resources to fight behaviors that shouldn’t even be illegal.

It’s football season, and for millions of Americans that means betting season. …It’s a crime that Fairfax County police take seriously. So seriously that in one recent gambling investigation, they spent — and lost — more than $300,000 in cash to take down a Las Vegas-based online bookie and his group of Fairfax-based associates. …Police critics have long wondered why law enforcement spends valuable time and money on combating sports gambling. …Unlike drug cases, police in Virginia are allowed to keep 100 percent of the assets they seize in state gambling cases, so other agencies or divisions receive no benefit. And the vast majority of those arrested are placed on probation. “What a waste,” said Nicholas Beltrante, founder of the Virginia Citizens Coalition for Police Accountability, a group formed earlier this year in part to combat unnecessary police spending. “The police should be utilizing their resources for more serious crimes.” Fairfax’s most notorious gambling investigation ended in disaster. In 2006, an undercover detective lost more than $5,000 while betting on NFL games with optometrist Salvatore J. Culosi — and when the detective called in a SWAT team to make the arrest, an officer shot Culosi once in the heart and killed him. …Since 2004, the squad has seized about $1 million in cash and assets annually, but some of those cases landed in federal court, where money is divided among various agencies, Schaible said. …One case from 2006, that of admitted bookmaker Kyle Peters, resulted in police seizing and keeping $566,940 from his bank accounts.

President Obama’s Secretary of Health and Human Services Kathleen Sebelius is still threatening to bankrupt insurance companies who tell their customers that ObamaCare’s mandates will increase premiums by more than 2 percent, even though her department’s projections show that, starting this week, just one of the law’s new mandates will increase some premiums by nearly 7 percent.

In a CBS News story last week, Sebelius tried to defend those indefensible threats:

But don’t the insurance companies have a right to make their own analyses and claims to their customers?

“Absolutely, they have a right to communicate with their customers,” replied HHS Secretary Kathleen Sebelius. “We just want to make sure that communication is as accurate as possible.”

The government can and should police fraud — but that’s not what Sebelius is doing. She is suppressing legitimate differences of opinion in the pursuit of political gain.

What if the government had said, “Absolutely, CBS News has a right to communicate with its customers — we just want to make sure that communication is as accurate as possible”? Should the government be able to put CBS News out of business if it decides those communications are not as accurate as possible? How about the National Rifle Association? Should the next Republican administration be able to put the Center for American Progress, the SEIU, or The New York Times out of business if it decides their communications are not as accurate as possible?

You don’t have to oppose ObamaCare to see the danger here.

“These kids today and their violent [blank].…” This refrain has been around for as long as there have been kids — and elders to shake their fists at them. In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency. In the 1950s, for example, psychologist Fredric Wertham’s attack on comic books — in his bluntly titled book Seduction of the Innocent — so ignited the national ire that Congress held hearings on the cartoon menace. In response, the comic book industry voluntarily adopted a ratings system. Similarly, backlash against the movie industry and the music industry (e.g., Tipper Gore’s attack on gangsta rap) caused those respective industries to also adopt voluntary ratings systems.

The videogame industry also adopted an effective and responsive ratings system after congressional hearings in the early ’90s. Thinking this ratings system ineffective, however, California passed a violent videogame law, which prohibits minors from purchasing games that are deemed “deviant,” “patently offensive,” and lacking in artistic or literary merit. The gaming industry challenged the California law and the Ninth Circuit struck it down on First Amendment grounds.

California now seeks to overturn the lower court’s ruling by arguing that violent videogames deserve an exemption from First Amendment protection. Cato’s brief supports the videogame manufacturers and highlights not only the oft-repeated and oft-overblown stories of the “seduction of the innocent,” but the less-repeated stories of the effectiveness and preferability of industry self-regulation.

We show that not only does self-regulation avoid touchy First Amendment issues but that entertainment industries take self-regulation very seriously. Moreover, evidence from the Federal Trade Commission shows that the existing videogame ratings system works more effectively than any other regulatory method. Adding a level of governmental control, even if were constitutional, would be counterproductive.

The case of Schwarzenegger v. Entertainment Merchants Association will be argued November 2 (coincidentally election day).