Terrorism: Security vs. Privacy

We all care about our personal and national security and about our individual freedom, of which our privacy is an important element. Measures that serve both are win win and thus uncontroversial, but often measures that enhance one diminish the other. How and when to use such measures (tools) involve agreement on the balance of risks between security and privacy. Striking the best balance requires public review and debate and constant monitoring as I have discussed before. https://wcoats.wordpress.com/2016/03/24/fighting-terrorists-part-ii/

Tools that enable our government to collect information on and track individuals can enhance our security by detecting and hopefully interrupting plans to carry out terrorist attacks. The existence of such capabilities, e.g., to monitor phone calls, emails, payments, and physical movements, also create the capability of collecting such information on people for other purposes, e.g. for commercial or political espionage. Governments through out the world have used such tools to monitor and suppress the “undesirable” activities of their foreign enemies and sometimes of their own citizens. Limits and safeguards on the use of such tools can mitigate the risk that they can be misused to get private information on individuals for other unwarranted purposes.

Finding the best balance between security and privacy is difficult but important for our freedom. We know or assume that we know how Russia, for example, uses surveillance tools on its own citizens. We generally believe that our own government only uses such tools to enhance our security. But the risks of and the growing actual misuse of government powers for political ends (e.g., targeted IRS audits on political enemies, illegal surveillance of a government employee’s girl friend or wife, etc.) are challenging our, perhaps, naïve faith in the honestly of our government. Hillary Clinton’s mishandling of classified email and Russian theft of U.S. government personnel records are nothing compared to the temptation to steal historical data on the activities of Donald Trump and Mrs. Clinton.

The credible rule of law is one of the critical foundations of our personal freedom. It both protects and limits the extent and domain of our privacy. The principle of “Innocent until proven guilty” is an essential element of the rule of law. It evaluates whether an act has violated the law. In a free society people are not punished for acts contemplated but not committed. Acting against people the state believes might be likely to or inclined to violate the law, for example, that it thinks are likely to commit a terrorist act, would violate this fundamental principle of a free society. An exception to this general rule would be the arrest of a person having the instruments and ingredients for making a bomb and supported by evidence that he plans to make and use the bomb.

Following the terrorist attacks in New York and Washington DC on 9/11, public sentiment shifted its balance between security and freedom in favor of security. The so-called PATRIOT act signed into law by President George W. Bush on October 26, 2001, reflected that shift by infringing on our privacy and traditional rights in ways that would not have been accepted earlier. Moreover, measures that were initially considered temporary and emergency in nature have become increasingly accepted as normal. Even after a slight curtailment of the provisions of the PATRIOT act when it was renewed in 2015 most of these measures were left in place. No one seems shocked today that the government maintains a “No Fly” list based on suspicions that certain people who have committed no crimes might be potential terrorists. Such profiling unsurprisingly results in Middle Eastern Muslims dominating the list, a racial and religious discrimination that violates existing anti discrimination laws and would not have been tolerated before 9/11.

It is not unusual today to hear people who claim to appreciate the importance of the First Amendment to the US Constitution (freedom of speech) suggest that radical Islamist websites that attempt to recruit ISIS Jihadists should be blocked. Most of my friends are too young to remember the anti-communist witch hunts of Senator Joseph McCarthy of the 1950s from which we coined the term McCarthyism. It was a time when a frightened public saw communists under every bed. Soviet spies, a legitimate target for arrest and punishment, were often confused with Marxists (communists), who espoused an economic system now rightly discredited. Those of us who still support freedom of speech believe that bad and pernicious ideas are best defeated with reasoned counter arguments. We believe that it is potentially dangerous to our freedom to allow our government to determine what we can read, hear, or see.

Edward Snowden did our country a great service by forcing a public discussion of what safeguards are needed to strike the balance desired by the public between their security and their privacy. I have written about Snowden before:  https://wcoats.wordpress.com/2013/12/24/the-year-of-edward-snowden/    I recently viewed the movie “Snowden” and the documentary about the same events called “Citizenfour” and highly recommend both. The Heritage Foundation has contributed to this discussion in the following half-day seminar. http://www.heritage.org/events/2016/10/cybersecurity I particularly recommend the opening session with Michael Hayden, who makes a number of interesting and thoughtful observations.

The level of discussion, which is to say the lack of serious discussion of these issues, in the American Presidential campaign is distressing. I am reassured that some very bright and thoughtful people are discussing them. In addition to the Heritage seminar cited above, the New American Foundation recently held an all day seminar on these issues that started off with an excellent presentation by Andrew J. Bacevich (starting at about 24 minutes into the video)


We can not remind ourselves often enough that “the price of liberty is eternal vigilance.” And, we should add, courage.

Dennis Hastert and the law

Former congressman Dennis Hastert has been charged with failing to tell his bank why he was withdrawing his money (up to $3.5 million withdrawn in smaller amounts over a few years). It appears that he was being blackmailed by someone threatening to expose a sexual relationship long ago that Mr. Hastert does not want disclosed. Blackmail is a crime that I understand, but I have yet to read that the blackmailer has been charged with any crime. I assume that that is coming.

Mr. Hastert is being charged with violating our Anti Money Laundering (AML) laws.
These laws allow arresting and convicting people for moving money (as Mr. Hastert was doing) that the government thinks was the proceeds of crime (not the case with Mr. Hastert, his crime was failing to report what he planned to with his money), when they are not able to prove that there was a crime in the first place. As far as I know, paying a blackmailer (which is what Mr. Hastert apparently did) is not a crime, though demanding and receiving such money is. The United States has pushed such legislation and the new bureaucracies needed to enforce it all over the world at the cost of billions and billions of dollars (that could have been used for poverty reduction or other more pressing things) with very little if any benefit to show for it. Charging Dennis Hastert with AML violations is a rare exception. Wow, what a benefit for such intrusions into our private lives. I consider AML laws more than a costly waste of money. They are another expansion of the arbitrary power of governments that can be used for good or ill with limited oversight. They lower the standards required for convictions of the real crime, what ever it was, and to that extend diminish the rule of law as we have always understood it.

It is hard to grasp how far our government has evolved from the freedoms we were guaranteed in our constitution. Most of these incremental intrusions have been in the name of protecting us from ourselves and our neighbors. The unlawful (according to a recent court ruling) spying on its own citizens by the NSA exposed by Edward Snowden is now well known and tomorrow we will see what congress does about it. https://wcoats.wordpress.com/?s=snowden. In another example, The Washington Post and others have exposed the shocking abuse of civil forfeiture laws (modern highway robbery by the police). https://wcoats.wordpress.com/2014/09/10/the-abuse-of-civil-forfeiture/.

These are the tips of an alarming iceberg of regulations contained in tens of thousands of pages of laws and regulations from banking to buying cereal. Charles Murray, a very thoughtful and out of the box thinker and observer of our times, makes an intriguing proposal for fighting back. Like me, he is a student of the 60s when civil disobedience seemed the only weapon left to us against an abusive government: http://www.wsj.com/articles/regulation-run-amokand-how-to-fight-back-1431099256

Has our preference for security over freedom swung so far? What are some people smoking to think that government bureaucrats at homeland security, the IRS or the Veterans Administration can more efficiently meet our needs than we can arrange ourselves in the private sector? I have commented on these alarming developments many times before:
https://wcoats.wordpress.com/2014/06/22/big-brother-is-getting-bigger/ https://wcoats.wordpress.com/2013/03/08/protecting-our-civil-liberties/

A Citizen confronts the Bureaucracy

I recently concluded a contract with the National Bank of Kazakhstan to provide technical assistance in their effort to develop inflation-targeting capacity. I am working together with an American and a Czech econometrician, and thus decided it would be best to incorporate as a Limited Liability Company.

I live in Maryland and thus went to the Maryland government’s website and within half an hour had not only filled in the required application and paid the required fee, but had actually received (via email) the official, signed registration and Articles of Organization document for my company “Economic Consulting, LLC.” Sorry about the unimaginative name, I will give it more thought the next time.

Kazakhstan is a signatory of a tax treaty with the United States that requires it to deduct 20% from any payments to me under our contract unless I have provided a number of specific documents. In addition to the above Articles of Organization, I must also provide a certificate of residency for the company issued by the U.S. Treasury’s Internal Revenue Service and certified by an Apostille issued by our State Department. Rather than have 20% deducted, we agreed that the National Bank would not pay me anything until these documents were received. I was on a learning curve that I really didn’t care to be on.

Hence began what I hoped would be an equally efficient e-government interaction with the Federal government that proved to be anything but. For starters, the form 8802 to request the certificate was three complicated pages long and could not be submitted on-line. Thus the printed form and my check for $85 were sent August 27, 2014 to the IRS by U.S. mail. On September 3 my check cleared so I knew the request had been received. One worry eliminated.

A month later on October 6th I received a letter from the IRS that I assumed was the long-awaited certificate. Instead it was an acknowledgement that my request had been received on September 3rd and that the requested certificate would be sent within 30 days. And indeed in another 30 days another letter arrived, but rather than the certificate it was another letter like the last one saying that the certificate would be sent within another 30 days. Shit.

The letter provided a phone number, which I now called expecting a long wait at the end of an automated list of choices. In fact, the wait was only about 20 minutes at which point Karen answered my call. “Oh my goodness. You should not have received those letters (i.e., we should not have sent those letters). Those were the wrong letters because there was a problem with your request.” She proceeded to carefully and politely walked me through the application form to correct the one or two things I had gotten wrong. The confusion resulted from the fact that I will as always file my business expenses and income on Form C of the 1040 rather than filing separately for the LLC. Blaw, blaw, blaw.

Karen gave me her personal business fax number (yes the U.S. government still uses faxes) and said that she would process it right away. As I no longer have a fax machine, I walked down the street to a neighbor’s with a fax and sent it off receiving the normal confirmation that it had been received. Ten days passed. Calling that number had been so successful the last time that I tried it again. After a one-hour wait on hold Ms. Douglas answered my call and assured me that my fax had never been received. A short, pointless discussion followed about the earlier fax and I finally agreed to send it again, this time to her fax number. I needed the exercise anyway. She promised to call me to confirm its receipt, which in fact she did saying that it was now fine and she would process it immediately and I should receive the certificate within ten days. I was excited by the progress, but reflect nostalgically on the 30-minute start to finish, all on-line, incorporation of my company in Maryland.

Ten days passed and it hadn’t arrived so a called again, this time with only a 15 minute wait (note to self: Monday at noon is a good time to call the IRS). Jane informed me that the document had been processed by Ms. Douglas and printed and would now be ship to the Utah center for mailing to me and should arrive within ten days!!! They don’t do this every day, she explained politely. You can’t make this stuff up. I took a deep breath and struggled to keep my voice under control. I reminisced nostalgically about the 30-minute start-to-finish (including delivery to my desk) incorporation of my little company in Maryland.

Jane quickly agreed with me that it would be nice for the Federal Government to catch up with the twentieth century (I meant the 21st century—but would settle for the 20th). Unfortunately, unlike the private sector, which is continually looking for ways to do things better for less, Jane and her boss have no incentive to do anything about the ridiculous process she described to me. The state of Maryland, which seems better organized and better managed, does at least feel a bit of competitive pressure from Virginia and other states, lacking at the Federal level. I am not about to move to Mexico or some other country over this.

The certificate—a one liner confirming my address – finally arrived on December 3, 98 days after my request. Now I can learn about how to get an Apostille and hopefully get paid. I assure you that I have not made any of this up. Please pray for me.

P.S. The State Department office of Authentication informed me by phone with no wait at all that I could not get an appointment (at which time the Apostille could be given while I waited) for 15 days, but that I could drop it off and it would be ready within three days. Sounds encouraging but I am not holding my breath.

P.P.S. As instructed, this morning (December 4) I drove into town to “drop off” my document to be authenticated and was informed that the drop off is only from 8:00-9:00 am — I was too late. Back tomorrow!!!

Big Brother is getting bigger

Americans are forever debating the best boundary between the domain of government authority and our personal authority. It is an important discussion, which should continue forever. Many but not all of the issues discussed have to do with the balance between security (protecting us from attack, disease, hunger, etc.) and liberty (leaving us free to hold our own religious and political beliefs, and set our own personal goals, make our own decisions, etc.). Many of the considerations in these discussions revolve around the relative advantage and efficiency of the government, or entrepreneurs, or ourselves —which can do something better (set standards, build bridges, build rockets, develop and implement more efficient sources of energy, cure cancer, develop better telephones, put on a play, etc). An important class of considerations concerns the risks of granting the government powers that can potentially be abused. Edward Snowden has certainly made us think about some of these risks. I urge you to reread my earlier blog on this subject: https://wcoats.wordpress.com/2013/03/08/protecting-our-civil-liberties/.

Four recent examples of the government’s abuse of power suggest that it is sliding into increasingly dangerous habits. I optimistically count on the good sense of you all to push the pendulum in the other direction.

The Common Core. The effectiveness of any undertaking should be measured by its output – its result. In the critically important area of education, data on what we spend on education tells us nothing about whether the money was well spent. Expenditures measure inputs not outputs. In order to determine whether children have learned what we think they should have learned, we test them. Some tests are better than others, of course, but there is value (at the very least to parents trying to decide where to live) in being able to measure the quality of teaching in one area with that in another, and common, standard tests are one of the ways of doing so. Different localities may have different ideas about what they want their kids to learn, but otherwise it is helpful to be able to compare how much kids learn on average in different schools, communities, and states. It would also be of concern if the skills and knowledge one area aims for are very different from those sought in another area of the same country, as there are a core of values and shared knowledge necessary to preserving a peaceful, flourishing society within a nation, to preserving a shared sense of nationhood. For an immigrant nation like the United States, this is especially important.

These are the considerations that led Bill Gates to finance the development of the common core of knowledge expected for each grade level and the standard examinations to test their achievement. I strongly support the desirability and value of this goal. But what is the role and scope for experimentation in approaches to effectively teaching what we think our kids need to learn? Though it is a little disturbing to use our kids as guinea pigs, it is better to do so one school or school district at a time rather than experiment with the entire nation (which eliminates the possibility of comparisons between approaches). Many educational fads have proven to be misguided and have done great damage (look-see reading methods, the elimination of groups of different ability within one class, etc.) More over, it is essential that parents have a choice of what school and approach to send their kids to. Such School Choice and the variety of approaches offered allow limited experimentation while preserving social peace (each family is free to make their own choices) at the same time. Still, there is a minimum standard core of values and knowledge we rightly expect every child (our future citizens and voters) to have if we are to preserve the values on which the country was founded and has so successfully operated for over two hundred years.

These somewhat conflicting objectives cannot be resolved easily. There is a balance between individual choices and the minimum common values needed to live peacefully together. The search for the best balance is facilitated by keeping most education decisions local and close to the families for which it is most important. We are suffering from Ronald Reagan’s failure to deliver on his promise to abolish the Department of Education (a department of the federal government, which has no constitutional role in education). I think that a Common Core of educational achievements is desirable but that they must be voluntarily adopted by each school district and state. The process of discussion between districts and states will improve the standards that most choose to adopt.

If you think that the federal government leaves this choice to the states (where it has constitutionally been placed), think again. The federal government both penalizes and rewards (subsidizes) states in order to pressure them into adopting the standards promoted by the federal government. It should not.

Lois Lerner’s missing emails

It is not surprising that government officials and bureaucrats sometimes let their own political, religious, or cultural views influence their performance of their official duties. After all, they are human like the rest of us. Thus where we have given a responsibility to government, and collecting taxes is a proper and necessary function of government, it is important to impose strong checks and balances against the abuse of such powers. The misuse of the IRS to punish political enemies is a disturbing abuse of government power, reminiscent of Richard Nixon’s enemies list. But such things happen from time to time under every administration. What is much more disturbing is the failure of this administration to take all reasonable measures to punish those responsible. The missing IRS emails subpoenaed by Congress (like all government agencies, the IRS had contracted a company to back up its emails) are reminiscent of the missing 18 minutes of Nixon’s White House tapes. Ms. Lerner and others involved should be in jail.

The Redskin’s name

I am not a Native American and thus have no idea why some of them consider the name of our football team, “The Washington Redskins”, offensive. Negro’s (aka African-Americans) are regularly referred to as “blacks” without apparent offense. In my opinion, ethnic groups should be free to inform the rest of us what they prefer to be called, and out of respect I am happy to oblige (though it is a bit annoying when they change their preferred designation every decade or so). But this should be none of the government’s business. Social conventions of good manners should be communicated to the government, not the other way around. But our government seems to be imposing its views on such private matters more and more these days. Upon visiting ground zero (the monuments constructed where the Twin Towers used to stand in New York City) a few weeks ago, I was very offended by a sign with a details list of how to behave while in the area. I didn’t object to the substance of the behavior demanded, but to the presumption of the government of the need to do so.

Last week the U.S. Patent and Trademark Office canceled the Washington Redskins’ trademark on the grounds that federal trademark law does not permit registration of trademarks that “may disparage” individuals or groups. In its announcement the Office stated: “that these registrations must be canceled because they were disparaging to Native Americans.” We will need to pay more attention in the future to the social/religious views of those we elect to office in the expectation that they will be increasingly imposing those views on society. This is not where we should want to go. “The-patent-office-goes-out-of-bounds-in-redskins-trademark-case”

Operation Choke Point

Imposing the government’s views on how we should behave takes a frightening leap forward with Operation Choke Point. As reported in The Economist: “a scathing report released on May 29th by a congressional committee… claims the operation was designed to strangle legitimate businesses that the government objects to for ideological reasons, such as payday lenders or gun dealers. The method is to deny them access to banks and payment systems, by prosecuting payment firms that abet suspect transactions…. The congressional report raises an even more vexing question: whether Operation Choke Point ‘inappropriately demands that bankers act as the moral arbiters and policemen of the commercial world’. The banks’ own legal travails suggest they are not obvious candidates for the job.” “Anti-fraud push accused of turning bankers into unaccountable cops”

I find this totally unjustified intrusion into private affairs deeply disturbing. We should push back hard. I would not be surprised, and would be quite pleased to see the rest of the world push back against similar U.S. bullying of foreign banks via its Foreign Account Tax Compliance Act (FATCA) and long running Anti Money Laundering (AML) campaign. Via FATCA and in total disregard for the laws of other countries, the U.S. is extorting foreign banks to share private depositor information and undertake costly vetting not only of their customers but of their customers’ customers. “Big-banks-are-cutting-customers-and-retreating-markets” This is imposing large costs on banks, which are increasingly refusing to deal with American customers rather than incur those costs. To the extent this concerns compliance with tax obligations, the United States needs to fix its impossible and dysfunctional income tax codes (individual and corporate) rather than bully the rest of the world. “The principles of tax reform” This is not a promising trend.