Monday, June 24, 2013

You'll Never Live Like Common (law) People

By Robert H.

Every educated American fancies themselves a constitutional scholar, but it's rare for a layman to be so brazen as to claim the role of legal historian.  Meet Alex Tabarrok.

Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding...If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law . 
Ok, first things first: Alex's main point has nothing to do with the common law, and it's a fine point.  Essentially he thinks too much is illegal in modern society, especially under federal law, and that that should make you nervous.  Agree or disagree, I don't have much to say about that.

But nearly everything he says about the supposed golden age of the common law is wrong.  This is long and technical, but worth doing:

A. "Most crimes used to be based  on the common law..."

Not really.  For those that don't know, the common law was judge made law that came to define much of our early legal regime.  But it never existed alone, and statutes (IE, what we normally think of as "laws") have always been an important source of criminal law.  For example, the greatest articulation of the laws of England (remember, we were their colony and inherited the common law from them) at the time of the founding (ok, just before the founding) is Blackstone's Commentaries on the Laws of England.  To pick a random chapter, this list of offences against public trade cites 11 crimes, only 3 of which were crimes at the common law (at least insofar as Blackstone mentions) and all of the rest of which were specified by statute.  This mix of common law crimes and statutorily defined crimes also existed in 19th century and early 20th century America, right up until Americans started drafting criminal codes instead of relying on the common law.

Maybe if someone counted they would find that, yes, at some point in some (or most) states there were technically more common law offenses than statutory offenses, but the idea that Americans used to understand criminal law as the special realm of the common law just isn't, as far as I know, true.

B. "Most crimes used to be based... on ancient understandings of wrong"

This is more arguably true, but I think it's important to add that many crimes during the glory days of the common law, while perhaps based on some ancient understanding of wrong, certainly don't fit our understanding of wrong.  I didn't actually pick the chapter of Blackstone linked to above at random, I picked it because Tabarrok is an economist and almost every crime listed there would horrify him.  Let's list the chapter's common law crimes:

1. Owling: transporting wool or sheep out of England, to the detriment of English cloth manufacturers.  I'm pretty sure Tabarrok opposes protectionist measures like this.
2. Cheating: this ranges from what we would now call fraud to stuff Alex does not now think should be illegal, including making bad beer or disobeying government price fixing.  Blackstone is not actually clear where statute ends and common law begins on this one.
3. The offense of forestalling the market: this is just buying something before it comes to market or talking someone into not bringing it to market.  I don't think most Americans would agree that saying, "Hey, Joey, why not just hold onto your cow instead of selling it" violates a fundamental understanding of wrong.

Common law crimes we would find abhorrent or silly or surprising are not limited to economic crimes.  For example, spreading false news against great men (felony punishable by imprisonment at common law), heresy (only a misdemeanor at common law), and the mere speaking, with no attendant act, of treasonable words (misdemeanor).

Now it can fairly be said that not all of this applied in 19th century America, obviously, and Tabbarok could argue that he is hearkening back to a 19th, not 18th century golden age of common law.  It could also be argued that Blackstone might be too late a source, and earlier in English history judge made law was more dominant and less inter-meshed with statutory laws.  But this raises further problems: as you travel into the 19th century legal principles Tabarrok doesn't like began to surface (he seems disdainful of the crime of attempt, for example, which really began to take root in Britain in the 1780's).  As you travel further back, legal principles Tabarrock speaks highly of had not yet developed (In england, mens rea only began to be thought of as required for almost every crime around the 17th century, for example (I think)).  So it's not clear what time period, exactly, Tabarrok wants to look to as the glory days of common law.

All that said, I am not an expert.  It's possible there was, at some time, a common law state where A. the criminal law largely consisted of common law, and B. it matched a modern understanding of right and wrong.  But I doubt it.

C. "But today there are thousands of federal laws that bear no relation to the common law or a common law understanding."

That's arguably true (no relation is a bit much. There is no federal common law, but common law principles still suffuse federal law), but I want to forestall a possible rhetorical trick and this is as random a place to do it as any: a defender of Tabarrok could say that his focus is entirely federal, so I shouldn't mention state common law in my response.  But I have to: there weren't many (any?) federal crimes at the common law.  For Tabarok to be making any sense, he has to be comparing the common law of England or American states to current federal criminal law.

D. "Remember, under the common law mens rea, or criminal intent,"

"Mens Rea" doesn't mean "criminal intent," it means "guilty mind," and refers to the mental state that must accompany most criminal acts for them to be illegal.  Intent is a type of mens rea, and the one most used under common law, but not the only one.  Negligence or recklessness or malice aforethought were other types of mens rea.

E. "... was a standard requirement for criminal prosecution."

Sort of.  As the common law went along, Mens Rea did come to be thought of as a requirement for crimes, reflecting the growing influence of ancient roman law on the common law.  But things were still kind of confusing: it wasn't really clear what mens rea requirements attached to what crimes (lots of those crimes listed by Blackstone, for example, don't specifically define a mens rea), and even as things began to be defined the definitions came piecemeal, with every crime getting its own idiosyncratic mens rea ("intent to deprive another of their property" for larceny; "malice aforethought" for murder; "a blameworthy state of mind regarding consent," among other definitions, for rape).  Generally these were divided into two camps: specific intent crimes, where the criminal intended some harm; and general intent crimes, where the criminal simply intended to do the criminal act but did not necessarily intend the subsequent harm.  But even that distinction was more confusing than helpful.  Point being, "mens rea" was never simple, well defined, and easily grasped under the common law.  When arguing how intuitive and simple the common law was, you can't just say "criminal intent was a standard requirement for criminal prosecution," without heavily footnoting that sentence.

Further, I suspect some common law mens rea requirements don't quite fit what an average person might think was fair.  For example, if I intend to slap an "Alex is Dumb" sign on your back via notebook paper and tape (intend an offensive touching), miss because you suddenly duck, and accidentally slap the person beside you (doctrine of transferred intent), and their brittle bone syndrome causes a serious injury, I am guilty of a serious felony (obviously the judge or prosecutor or jury will go easy on me, but Tabarrok sneers at such safeguards).  But if I was going to put the sign on our class's doorway, it suddenly opened, and I slapped the innocent bystander, I am guilty of no crime.  Maybe Tabarrok thinks that the first slap should be a felony, maybe he thinks that the distinction between the first and the second slap makes sense, but to me "meant a harmless prank, now guilty of felony battery" sounds like the sort of legal horror story Tabarrok was telling in his post, and the distinction between "accidentally slapped a guy after trying to put dumb sign on your back" and "accidentally slapped a guy after trying to put dumb sign on door" seems meaningless.  Longwinded point being: you can get bad results for seemingly harmless conduct under the common law, too.

F. "but today [a the requirement that a mens rea accompany an actus reus] is typically no longer the case, especially under federal law."

I am pretty sure this is false or misleading.  There are two kinds of criminal codes in America: those based off of the common law and its principals and those based off of the Model Penal Code (a model code without the force of law some clevermen drafted in the 60's).  The federal criminal law is more-or-less the former.  As a result, while it does have strict liability felonies (ie, statutory rape or, as Tabarrok points out, trespass to federal parks), most federal laws require *some* sort of mens rea. Indeed, there is supreme court precedent encouraging judges to interpret ambiguous federal statutes to require a mens rea requirement.  Just so, one of the crazy laws Tabarrok lists, obstruction of correspondence, has a mens rea requirement, specifically that the crime be done " with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same."   (As a total aside, while it wasn't a crime at the common law, obstructing the delivery of the mail has been a crime since 1792,  so it's a weird one to pick as an example of how our crazy modern criminal laws are so much worse than the past).

The caveat is misdemeanors and crimes punished by mere fines, which often don't have a mens rea requirement.  For all I know, if you count them it is true that most federal criminal laws are strict liability offenses.  But Tabarrok makes a point of how easy it is to commit felonies and harps on the seriousness of many of these crimes, so I think it's fair to demand that, if he is going to claim that federal law has abandoned mens rea requirements, he make it clear that he is mostly speaking in the context of misdemeanors .  

Just as an aside, model penal code states (Texas, for example) are much better about this than common law jurisdictions.  The model penal code strictly defined four levels of mens rea (five if you count strict liability) and specified that 1. unless otherwise stated, those mens rea requirements apply to *every* element of the crime, and 2. if no mens rea is mentioned in the definition of a crime, one should generally be read into the statute (this does not apply for "violations," basically a term of art for crimes with light punishment).  Strict liability felonies exist under the model penal code, but rarely.

In other words, the model penal code does a much better job than the vaunted common law when it comes to ensuring there is a clear, broad mens rea requirement attached to every major crime.  Instead of looking to the past, Tabarrok might want to look to the MPC for a successful counterexample to federal law.


So I want to emphasize that while I probably know more about the law than Alex Tabarrok, I am not a legal historian and don't practice criminal law, so some of this may be wrong.  I also want to emphasize that Tabarrok is smarter than me and is a better economist than I am lawyer.  But, by dent of not being one, he is a much worse lawyer than I am, and I am confident that at least *some*, if not *most* of how he compares the common law to modern federal criminal law is incorrect or misleading.

You may well ask why Tabarrok drags the common law into this argument in the first place, since the newspaper piece he is quoting does a great job of arguing that we have too much federal criminal law without bothering to mention the common law at all.  The answer, I suspect, involves his adherence to a strain of thought that began with Hayek (I think) and has probably best been articulated by judge Richard Posner, one of the greatest living American jurists around.  These fellows value the common law as an example of emergent order, thinking it's bottom-up approach to building a legal system beats the pants off of top-down, statist attempts.  I think the general consensus among legal scholars these days is that those guys got it wrong,  but I'll blog about that another day.

So yeah, apologies to anyone who actually read all of that.

Wednesday, June 19, 2013

Finance and Personal Finance

I just presented a working paper at the Academic Forum in Quebec City.  I presented a standard empirical finance paper about whether a certain type of risk (crash risk) is priced across stocks.  Since the conference is quite general, many in the audience were not finance types.  I did my best to try to make it as intuitive, but in the end many were left thinking, "Whaaa?"

I got one comment afterwards from a professor in Hospitality Management that I wish had been given during my session, "I think the finance presentations need to do a better job of explaining why their paper is important to me."  In context, she was really talking about her own personal finance.

I think there is a really important and robust finding in Finance that addresses her question.  Personal Finance is really, really simple, and it doesn't require understanding or reading any current finance research.  Buy a diversified portfolio of stocks and bonds with as low management fees as possible.  For a 40 year old, buying 60% stocks and 40% bonds in low cost index funds gets you almost all the way there.  If you don't like risk, but less stock.  If you are younger buy more stock.  There are lots of more technical questions you could ask, like how much in corporate bonds vs. treasuries or should I buy international index or REITs or commodities.  But getting the general advice, diversify in low cost funds, gets you almost all the way there.  The more technical the question beyond that the less it matters and the less I am in the answer.  Asking, "how much of my portfolios should I put in REITs?" depends much more on information about you personally than research on the characteristics of REITs from the market perspective.

I presented some anomalies about how tail risk is priced across stocks.  I'm not confident I have addressed exactly right (there's some important things I'd still like to do), but if you believe my results, then there is a money making opportunity that's profitable compared to standard models of risk.  But even if you think, it is a profitable opportunity.  It's still not one YOU should invest in.  It would require lots of work to manage the portfolio and it would incur high transaction costs for an individual investor.  Quite possibly an investment manager or hedge fund would find the information useful and possibly profitable.  Certainly, a finance researcher is extremely interested in how risk and return are related, but its really of little use to retail investors.

One of the driving questions of Behavioral Finance is that personal finance is so simple and easy, why do so many investors ignore or fail at following the advice?  Most of finance research is geared to the (possibly too large) sector trying to discover prices, invest capital, and interpret financials.  Unless that is your full time job, just focus on getting the easy stuff right and spend the rest of your time and money on more enjoyable things.

Friday, June 14, 2013

Lt. Gen. David Morrison to Soldiers Who Condone Sexual Misconduct: "Get Out."

Instead of shaking off spring quarter and spending a day in a vegetative state, within six hours of submitting one last final paper, a friend posted this video (thanks, Rummy!). Still dizzy from finals week, yet I can't resist blogging about this gentleman, Australia's army chief Lieutenant General David Morrison. I'm glad to have a reason to start again. Inspired is the word.

                                                                                                   Video courtesy YouTube user AustralianArmyHQ

This message was filmed in response to news that 17 Australian Defence Force (ADF) soldiers recorded themselves with sexual partners and shared the material over ADF computer systems and the Internet, with a further 90 personnel implicated in the e-mail ring. This is not the first instance of this kind of behavior in the ADF or any other branch of the military.

I love this video. Judging by the positive attention it's getting, I am not the only one.

A relative recently told me that men and women don't belong in the service together (we're a tactless family) and I responded that it's a new military, but that's not it exactly. I've heard these words hundreds of time, dozens of paraphrases. Every time, I have an unsettled feeling, like the knotty reasoning would unravel if I could just sort out this single, simple thought that keeps escaping me. Lt. Gen. Morrison personifies the answer.

The idea that men and women serving side by side weakens the military? Wrong. Not right, never has been right, not for a minute. How could it have been? Those who would segregate the sexes would do so to preserve individual weakness in a subgroup of service members. There it is, the knot hacked to pieces. Lt. Gen. Morrison's strength and leadership contrast so sharply with the "traditional" debauched soldier stereotype that I wonder how I let the concept get so tangled in the first place.

Most countries expect self-control from their military. In the Marine Corps, we live by the core values of honor, courage, and commitment. Not individualism, gratification, and misrepresentation. For the record, that relative I mentioned has never served in the armed forces, so I wouldn't expect them to understand the sense of identity we get from our shared values.

We're expected to behave with consideration and respect. They're not asking too much, in a global society with video phones in every pocket. Not that the expectation of getting caught should be the main reason to hold true to the values, but come on. You will get caught.

How did the expectation of good behavior become a sign of weakness? Being good is harder than being bad. We say from the beginning, "You are a Marine 24-7." High standards don't end when the door closes. They sure as hell don't end because a woman's in the room. "The standard you walk past is the standard you accept."

To anyone out there who wants to be a Marine one day, even those who've made it into the service but still don't quite understand why we need to change: We no longer live in a world with demographic exceptions to the golden rule. Figure it out, or get out. It's a lean military. Plenty of young hopefuls are ready to take your spot.

Monday, June 10, 2013

More NSA

By Robert H. 

So this guy wrote an article observing, among other things, that 1. Federal prosecutors routinely pressure criminals to plead guilty, 2. Prison conditions in America can be brutal, and 3. Since the 70's, the courts have reigned in people's ability to avoid criminal conviction due to police misconduct during the investigation of their crime. So that's all true.

What's weird is that he presents these entirely as problems facing protestors and whistle blowers
 who leak classified documents.  And I've been seeing a lot of that lately, ever since the Aaron Swartz tragedy.

To be clear, every criminal defendant in America is pressured to plead guilty by the prosecution, many face terrible prison conditions (overcrowding, sexual assault by guards, long term solitary confinement, etc), and the courts have made exceptions to the exclusionary rule that affect all of us.  If those things mean Edward Snowden can't get a fair trial in America, no one can.  And if you only speak out when the criminals you like face abuses, don't be surprised if abuses become the norm.

As a total aside, plea bargaining exists as a cost cutting measure because trials are expensive (and it works, 90+ percent of criminal cases are resolved before trial).  Anyone who says "prosecutors pressuring defendents to plea bargain are wrong and defendants should be able to go to trial without fear of harsher punishment" needs to follow that sentence with "and here is my plan to fund a vast expansion in the numbers of prosecutors, judges, support staff, and courthouses, so that we will be able to timely try the vast number of trials I'm creating."  Or maybe "and here is my plan to cut down on the numbers of citizens we arrest and accuse of crimes."  Whatevs, just please be aware of why prosecutors do it and the pressures it will cause if they can't.

Sunday, June 9, 2013

Just Why Are All These Intrusive Programs Legal?

By Robert H.

This is the only picture saved to the blog that could possibly fit
a post about constitutional issues, and I was too lazy to look on
wikimedia commons for a better one.
I've been blogging about some national security programs letting the government access  data related to our phone calls, plus some content held by foreigners outside the US (possibly, people are still wrangling over what exactly PRISM is).  Here's why they are probably legal:

1.  The Supreme Court has said you don't have a reasonable expectation of privacy in meta-data collected by third parties, like when the phone company keeps track of whom you are calling.  They've extended this to all sorts of information you've handed over to third parties.  The idea is that when you fork info over to other people, you run the risk of them ratting you out and so shouldn't be surprised if the government gets its hands on the info.

As a result, the government can constitutionally gather this information either with a subpoena to or with the consent of the third party.  The government does not need probable cause if it goes with a subpoena, since the that is thought to be less intrusive than a search (you gather the relevant documents yourself, at your leisure, selecting what you think is required, and then bring it to court).  There are some limits to how broad a subpoena can be, but the government only need bother with a subpoena in the first place if the third parties holding your data put up a fight.  If they are working with the government and handing over all the data voluntarily, there is pretty much no limit to what the government can ask for.

So, under the constitution all your meta data are belong to the government.

2.  That said, there are still often statutory protections that keep the government from gathering this stuff.  Sadly, in this case the patriot act has removed those.   The result is that the feds don't need probable cause to access third party routine business records when national security is on the line (or at least, when they say it is).

As a wrinkle on that, it does look like either the courts or the administration has imposed a reasonable suspicion standard on anyone who actually wants to access this data.  Which is nice, I guess.  A "reasonable suspicion" standard is a lower burden than probable cause -- think of it as the difference between thinking something is probably true vs having reason to think it might be true.

3.  In the case of PRISM, Courts have held that the executive has inherent power to search the contents of communications (IE, wiretap) if his purpose is gathering foreign intelligence.  Even better (from their perspective), the executive can pretty much spy like a fool on foreigners outside the US.

So that is that.

Corporations are Obviously People

By Robert H.

One good thing that should come out of the news that the government is massively invading our privacy: it will put to rest all the misguided attacks on corporate personhood we've heard lately.

Here's the story: the Supreme Court struck down a campaign finance law, partially relying on the corporate personhood doctrine (I mean very partially)-- the idea that for some purposes corporations are persons and some rights apply to them, in this case the right to free speech.  Rather than going after the specific extension of corporate personhood to speech issues (which I think had been made before this ruling), or some of the flaws in the decision completely unrelated to corporate person-hood, some critics (Examples here or here or here) decided that "the evil supreme court thinks corporations are people" was a good sound bite, and so people started saying they were opposed to the doctrine of corporate personhood.  This has led, as that last link reveals, to a movement, backed by actual congressmen, to amend the constitution and strip all rights from corporations.  Which is sort of terrifying.

See, pretty much no one is actually opposed to corporate personhood, as we learned this week.  I haven't read a single blogger or commentator say, "Of course the government can create huge secretive programs to take private information from google and apple and etc.  The government is searching the records of corporations, and corporations have no rights because they aren't persons."  Instead, people are reflexively assuming that fourth and fourteenth amendment rights against unreasonable searches and seizures are the proper starting points here, even if they go on to argue that gaps in fourth amendment doctrine makes what the government is doing narrowly legal.  This information is private.  It's personal and it's sitting behind closed doors and the people holding on to it are making every effort to keep it from getting out -- and thank God for that.  And the government should get free access to it because a corporation rather than a sole proprietorship is holding on to the stuff? Am I going to march in here and tell you that the government gets to burst down any door it wants, rifle through any file it wants, upend any trash can it wants, copy any hardrive it wants, so long as the ink on the door says "Inc."?

Of course I am not.  The idea that corporations have rights and should be, for some purposes, treated like persons is not controversial.  No one wants to live in a world where the government can seize corporate property without due process, search corporate records at will, convict corporations without trial, etc.  For some purposes, we obviously want to treat corporations as persons (and that specific word, "persons," is important and necessary since the 14th amendment, the one that keeps states from violating your rights, protects "persons."  It would be nice but impossible to use a less emotive term).  At the end of the day, if the government steals corporate property it is, ultimately, stealing from people.  Of course, for other purposes, we obviously don't want to give corporations rights (right to vote, say).  And there's probably a middle ground we need to argue about (Corporations have a right to free speech but no fifth amendment right to not be compelled to testify against themselves, for example, both of which I think can be questioned).  If you agree with those three points  -- and I hope you do -- you more-or-less agree with the doctrine of corporate person-hood.  Hooray you.  Now go argue against Citizens United on the grounds that the law in question was a narrow, content neutral restriction appropriately limited to serve the government's interest in protecting candidates from implicit bribery, or something.

Still Banging my Drum

By Robert H.

Kevin Drum asks and answers a question.

[I]t's possible, even likely, that these professionals aren't abusing the data they've collected. Not yet, anyway. But does Obama really think that a government that collects this kind of stuff won't abuse it eventually? That's vanishingly unlikely.

Drum wants to know what Obama really
thinks and when he really thought it.

 That strikes me as an odd assertion for three reasons:

1. You'd think, with that degree of certainty, that Drum is thinking about some particular examples.  But I know a lot of history and I can't think of any.  There have been lots and lots and lots of governments that collected information on their people *and* abused that information, but normally they go hand and hand.  It's not like the communists in Russia created the Cheka, it gathered lots of information about people, and over time its resolve weakened and it started using the info to aid in torturing and imprisoning innocent Russians.  It tortured and imprisoned them right out of the gate.  Just so, it's not like the FBI got the power to wire tap and then used it responsibly for decades before ultimately backsliding.  It was bugging political dissidents from early in its history.

On the flip side, you can think of intelligence gathering operations that have been going on for a while without any abuse scandals.  Just off the top of my head, ECHELON has been targeting foreigners since before PRISM was a glint in some spook's eye, and as far as I know it has never been credibly accused of abusing its power to go after Americans.

2. I think it's just obviously wrong.  As I tried to make clear in my last post, simply keeping the government from gathering information is our first and weakest line of defense when it comes to keeping the government from abusing that information, so the government getting the information does not mean that the war is lost and abuses are right around the corner.   In America, even when the government can collect info in secret, most of the things it does to us -- tax us, seize our property, imprison us -- happen openly and can be challenged in court, where secret information gathered without due process can be disallowed (the exclusionary rule) or, at least, exposed.  The scary stuff is the supreme court making loop holes in the exclusionary rule or congress letting people be convicted with secret evidence or the states secret privilege letting abusive government actors avoid court.  The least scary stuff is the mere fact that the government is gathering information (duh, of course they are.  They have been for decades).  I'll say it again: the government gathering secrets is not as scary as the government using secrets, which is not as scary as the government using secrets in secret.

3.  The government is probably not doing anything illegal with these programs.   So I think it is a bit brazen to claim that illegal or unconstitutional abuses are a natural follow up.


So yeah, my point is A. If you don't think the government is abusing these programs, it's not inevitable that it will, B. The news of this week shouldn't adjust anyone's priorities.  The government gathering information is not nearly as scary as lots of the assaults on due process we already knew were happening. The key to surviving the information age with our liberties intact is not going to be locking down the flow of information to the government (or to anywhere else, for that matter.  Remember, the government isn't even invading our privacy with these programs, it's invading the privacy of companies we merrily gave access to our private information without a second thought.  Privacy is dying at our hands, not government's, and it's futile to imagine a world where we freely distribute and share our secrets but the government politely looks the otherway).  Rather, preserving our liberties will depend on 1. Maintaining (and expanding) a robust exclusionary rule for private information gathered without probable cause, while also expanding the definition of privacy to be more along the lines of "the stuff we work really hard to keep secret" as opposed to "the stuff, if there is any, we can actually keep secret," and 2. maintaining (and expanding) our ability to challenge government takings and restraints on speech in open court.

Big Brother Imprisoning You is Worse than Big Brother Watching You

By Robert H.

So this week we learned the government is gathering a lot of info about you without the usual procedures you jump through to get a search warrant (see links below), and people are freaking out.  But this ignores an important fact: search warrants themselves are really easy to get.  Search warrants aren't important because they make it hard for the police to search your house; they are important because they make it hard for the police to send you to jail.

Let's look at two attempts by the government to get information about you:

1. A cop goes to a judge and says a reliable informant he trusts promised you were a drug dealer.  He asks for a warrant to search your home.  The judge, inevitably, grants it.

2. A cop avers to the US foreign intelligence surveillance court that he needs meta data Verizon has about your calls, or searches through PRISM data in a way designed to avoid returning data about American citizens but which, in this instance, does return information about you.

To me, the procedure in one does not look much more rigorous than two, at least in terms of judicial oversight.  A cop trying to get an abusive search warrant just has to make up the existence of a reliable informant and, bam, a warrant is issued based on the testimony of "reliable informant" Lies McFartWhistle.

Lies McFartWhistle seen here (Lady McFartWhistle not pictured).

But now compare these two situations:

1. A cop made up the existence of a "reliable informant" to get a search warrant to your house, where he found drugs.  This comes out at trial after the warrant is examined and the cop questioned by the defense, the Court rules both that there was no probable cause for the search and that the officer did not act in good faith, and all the evidence springing from the search is ruled inadmissible.  Cops can't tell the jury they found drugs in your place; you go free.

2. A cop lies to get an FISC warrant and gathers data demonstrating you are a terrorist.  This data is then presented against you at trial. Because FISC warrants are secret, you cannot see the warrant or explore the reasons it was granted.  You go to jail.

Get my point?  It's very terrible when the government learns your private information and all, but it is really REALLY terrible when the government uses that private information to convict you of a crime.  Because of that, our number one safeguard against government intrusion into our privacy isn't magistrates issuing warrants -- they do so based on perfunctory and routine affidavits -- it is judges excluding evidence that wasn't gathered with probable cause.

In other words, the most important thing when it comes to the government invading your privacy isn't stopping the invasion itself, it is keeping the government from using the information they got to hurt you.  And that is why the use of secret evidence and secret warrants in criminal trials are and always have been the biggest threat to our way of life and to our privacy that has emerged in the war on terror.  And that's even if you include "terrorism" as something that has emerged in the war on terror.

So the new abuses that are being reported are bad, but you shouldn't take your eye off the ball: the real victims aren't we whose cell phone meta data is insecure, it is the terrorist being convicted or the immigrant being deported based on secret evidence approved by secret means.  It's not the government gathering secrets we should fear; it's the government using them.