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.

Matt Yglesias Wisely Calls For A New Policy That Already Exists

Matt Yglesias thinks that straight up handing money to disaster relief victims subsidizes dumb behavior, and instead that money should be accessed as a low interest loan.  This doesn't remove the subsidy,  but it solves the "we are paying people to live in dumb, flood prone places" problem.  If we loan them money then we aren't paying them, they're paying us, albeit at a subsidized interest rate.

The problem is we already do this.  I worked in disaster relief.  These are the steps:

1. Fema comes and gives you some "don't die on the side of the road" help.  Food, shelter, etc.
2. The SBA comes and checks out your damaged home/small business.  If a vacation home was damaged, you are out of luck.
3. If you can afford a loan at market rates, they offer you a loan at market rates.  That's the only relief you get.  The loan is collateralized by the best collateral available, normally the repaired property.
4. If you can only afford a low interest loan, you get a low interest loan.  Again, collateral is taken.
5. If the SBA decides you can't afford even a super low interest loan (interest around 3 percent), you get your big bags of free money from FEMA.  I assume.  I didn't work for FEMA.
6. Eventually, the insurance company will decide how much they are going to pay you.  Duplicated proceeds (IE, the SBA gave you a loan to rebuild your porch and you just got the same amount from the insurance company) are assigned to the government.

It's true that this still encourages bad behavior, but steps are taken even there:

1. If your home (or business?  I forget) was very badly damaged, the SBA will let you use your loan to move to a non-flood zone rather than rebuilding.
2. If your home or business was damaged by rising water or is in a flood zone, you must purchase flood insurance after you repair it (of course, flood insurance is itself subsidized).
3. If you want extra funds to make improvements that the SBA's appraisers think will make the home more disaster resistant (stilts, say), you get that.

Now Yglesias's system is different from what we have in place, and may have more merit .  He wants to have *states* borrow the money, not individuals, and to do this by giving states access to a fund that doesn't require jumping through congressional hoops every disaster to get its funding.  This would shift the subsidizing of people who can't afford loans from areas of the country not prone to disasters to areas of the individual state not prone to disasters, which is a good or bad idea, depending on how you like federalism.  But his basic insight -- we should loan rather than give disaster relief funds and should be sensitive to the fact that we are encouraging bad behavior -- is one congress has already taken on board.

The Fish Call Cliff

Rule of thumb: anyone trying to simultaneously make you scared of both

 1. the fiscal cliff and 2.  not getting the deficit fixed in the next few years

has a bad underlying model of how the economy works.  The "fiscal cliff" is a bunch of tax hikes and spending cuts that get rid of the deficit real fast.  Since the "fiscal cliff" is just sharp deficit reduction, if going off the fiscal cliff is a bad idea right now, by definition sharp deficit reduction is a bad idea right now.

You should also be wary of people who oppose stimulus but support the fiscal cliff. If cutting a lot of government spending and raising taxes is a bad idea right now because it will hurt the economy, maybe lowing taxes and raising spending is a good idea because it will stimulate the economy?  As near as I can tell, if the fiscal cliff is a bad idea it's a bad idea for pretty Keynesian reasons.

That said, it is possible to be worried about both the deficit and the fiscal cliff, but you should expect those people to talk about the deficit as a long term problem we have some time to fix.  If we have to fix it now now now, then the fiscal cliff does that.  If we have some time and if we want to keep spending up and taxes low now to stimulate the economy, then the fiscal cliff is too abrupt and should be avoided.