What the Verizon phone records issue is (and what it isn’t)

I have found, when it comes to matters of government power and conduct regarding intelligence, surveillance, and the like, that it is best not to firmly cement my opinion until I hear what Andrew C. McCarthy (the prosecutor from New York who put away the mastermind of the 1993 World Trade Center bombing) has to say. The Verizon-court-order-phone-record kerfuffle is no exception.

Amidst the understandable concern about Verizon customers having a third ear in their conversations, McCarthy sets things straight (NRO Corner, emphasis in original):

The Washington Post publishes a wildly exaggerated report this morning about the government’s collection of telephone records for national security purposes. Mind you, I said collection of telephone records, not wiretapping of telephone conversations, a critical distinction.

I would add a distinction lost on many. McCarthy goes on to explain just how important the difference is.

Telephone record information (e.g., the numbers dialed and duration of calls) is not and has never been protected by the Fourth Amendment. The Supreme Court held as much in its 1979 Smith v. Maryland decision.

Wait, what? But there was no PATRIOT Act in 1979! How could this be?!?!

Hang on, though. It gets better…

Unlike the content of your communications, you have no expectation of privacy in your telephone activity records. If you think about it for a second, you know you don’t. If there were a mistake on your phone bill – for example, if you were charged for a long-distance call you didn’t make — you would expect to be able to call your phone company and have the problem addressed. That is because you understand that, when you make a call, this information is not secret: your phone company keeps records of whom you called and how long the call lasted. A phone record is, by nature, a record of information shared with third-parties.

Or, to put it another way, the feds basically asked Verizon for everyone’s phone bill – which, again, is a power they’ve had since the 1970s. In fact, according to McCarthy, using PATRIOT to get this data is harder than not using it.

With grand jury subpoenas, there is essentially no court supervision. When I was a prosecutor and I wanted information, I reached into my desk, pulled out a subpoena, wrote what I wanted on it, and sent an FBI agent to go get it. I did not need to go to a court. A judge would get involved only if the person, business, or institution served with the subpoena tried to get the subpoena quashed – which was very rare, especially in the case of third-party records that do not implicate constitutional privacy concerns.

By contrast, Section 215 of the Patriot Act (which I wrote in support of when it was reauthorized a few years back) requires the government to go to the FISA court for permission to get business records, including phone records. It is true that the court’s role is largely ministerial – again, because there is no expectation of privacy and no Fourth Amendment protection, there is no need for the judge to make a probable cause finding. But that does not mean making the government go to the judge is inconsequential. The representations the government makes about the need for the records must be true – if they are later found to be false, there will be hell to pay.

Moreover, requiring the government to go to a FISA judge makes it far more straightforward for Congress to conduct oversight to ensure that the Justice Department is not abusing its authority. As a practical matter, there is no way Congress could efficiently review how thousands of prosecutors conducting tens of thousands of investigations across the country are using their ordinary (but capacious) law-enforcement power in issuing countless subpoenas.

So, no need to worry, right?

Not so fast.

As McCarthy himself acknowledges, “All information collecting can be abused” (emphasis in original again). Just because the government has been able to demand and get phone bill info since 1979 doesn’t mean it should, or that, in this case, asking for everyone‘s was particularly wise.

To some extent, it reminded me of a Washington Post story on how the federal intelligence apparatus grew exponentially after 9/11. Perhaps the WaPo was trying to scare everyone about how many snoopers were out there (and, to be fair, it was disconcerting), but I also noticed massive inefficiencies, bureaucratic battles, and unending reams of data left without any analysis because the intelligence folks bit off more than they could chew.

In fact, what we’re seeing here is yet another example of how the president’s determination to avoid admitting the nation is at war with Wahhabists, Ba’athists, and Khomeinists is making it harder to limit executive action and power: it has made it politically impossible for the president to narrow searches like this. So the agencies under his control have to ask for far more than is necessary or sensible, which leads to frightened Americans, angry politicians, and an avalanche of data that turns usable intelligence into needles buried in haystacks.

Intrusive yet competent action can create interesting arguments – which can go one way or the other depending upon the situation. Intrusive and incompetent action, on the other hand, should be roundly criticized, and never repeated. The Verizon record order clearly looks like the latter from here.

Cross-posted to Bearing Drift

IRS can’t do their contracts right either

The IRS’ nefarious actions toward center-right organizations has had one unexpected consequence: it has kept attention away from the Agency’s appalling record in contract compliance.

Government contracts are regulated by the Federal Acquisition Regulation (FAR), which gets revised often. As it happens, according to Jeryl Bier (Weekly Standard), “Congress had passed legislation in 2008 to address high-risk contract awards” – a reference to cost-reimbursable awards, in which the government is basically on the hook for whatever the contractor says is cost incurred.

By 2011, the Congressional changes were worked into the FAR. Yet according to the IRS Inspector General (same link):

The IRS did not issue internal procurement policy guidance to implement the FAR revisions that were required by the Act.  Although the revised FAR became effective on March 17, 2011, the IRS has not issued any procurement policies and procedures to implement recent FAR changes for cost-reimbursement contracts.  Instead, the IRS has used the prior FAR and its existing internal procurement policies and procedures[.] [B]ecause no guidance had been provided, the COs (RWL note: COs is short for “contracting officers”) who we interviewed were not aware of revisions to the FAR required by the Act as they related to documentation requirements in the contract file.  One CO stated there was no communication from the Office of Procurement regarding any FAR revisions on the subject of cost-reimbursement contract documentation requirements.

Uh oh.

Sure enough, the IG looked at 49 cost-reimbursable contracts and found…

The IRS did not comply with the majority of the new FAR requirements for 46 of the 49 cost-reimbursement contracts entered into between March 17, 2011, and June 30, 2012, totaling nearly $47 million.

But the Tea Party groups are the problem. Right…..

Cross-posted to Virginia Virtucon

London Meteorological Office caught upping the temperature data – again

“The Met” – as it is known – didn’t bother to warn anyone that is had “updated” their temperature data for their HADCRUT4 and CRUTEM4 data sets, choosing instead to simply unleash them on the public.

The folks at WUWT couldn’t help but notice that the data “updated”….

…are concentrated in the last 16 years, a period that the Met Office is under scrutiny for the lack of warming in their data.

Also, some of the regional changes appear quite contrived, e.g. it looks like they found five hundredths of a degree of extra warming in the Northern Hemisphere in the last couple years.

South America they found almost a tenth of a degree of warming over the last decade;

Africa, had five hundredths of a degree of extra warming in the last few years;

and Australia/New Zealand a tenth of a degree of additional warming over the last few years.

I left out the accompanying graphs, you can find them here. The WUWT fellows also note how this is part of a pattern of “adjusting” recent temperature data upward.

For those who are keeping track (admittedly not easy given the numbers), we have now reached forty-four examples of data manipulation, errors, and other shenanigans from global warming alarmists, and that’s just from what I’ve been able to blog on this subject since Climategate broke in November of 2009, just under three and a half years ago. More to the point, they don’t seem capable of stopping.

In this case, however, it is especially important to remember that the “adjustments” come right smack in the period of the data that has given alarmists their worst headaches: the post-1996 temperature stability. It could very well be that the “solution” is to simply jack up the numbers to make the stability go away…

Has the GOP become the Tax-The-Poor Party?

In the late 1850s, a Northern performer began playing what he thought was a humorous and biting tune about the South. In less than a decade, to his shock and horror, Dixie became the unofficial anthem (and label) of the South itself. I’m wondering if Rush Limbaugh feels the same way about his 1991 April Fool’s Day rant in favor of taxing the poor…because the Republican Party appears to have made Tax-The-Poor its one consistent economic policy – to its and the nation’s peril.

Contrary to what it might seem, this realization did not hit me with John Cosgrove’s victory last night (although perhaps the inspiration to post did). Cosgrove defeated Stearns (my preferred candidate) for many reasons, some of which Brian Kirwin describes in detail here. That said, the nature of that race – namely that Stearns himself needed to run to ensure an anti-tax-hike candidate was even an available choice – is yet another symptom of the larger disease that is damaging the party: to wit, a desire to avoid reducing the size and scope of government by making poor Americans and Virginians cover its cost.

Moreover, this should not be seen as an indictment of one wing of the party, or a salvo in intra-Republican arguments. The entire party – economic and social conservatives, moderates and “RINOs”, and anyone else I may have missed – are culpable in this, including yours truly.

Admittedly, those who have supported the various GOP-backed tax increases in Virginia seem to be the worst offenders – emphasis on “seem”, because even those of us who are not in that group have shown a refusal to acknowledge the problem, let alone address it.

Think back to last year, when all of the arguments regarding the expiring tax cuts focused on the income tax rates. Obama wanted higher ones; the Republicans didn’t. Everyone quickly assumed their usual positions (such as they were) on taxes.

Yet when Obama asked to extend the payroll tax reduction and Republicans demanded he drop it, hardly anyone in the GOP uttered a word in protest: not the economic conservatives, not the social conservatives, not the moderates, not the “RINOs”, not the squishes.

Why were we all so comfortable letting a tax cut for the poor expire?

Closing in on Virginia, just about every tax increase proposed by Republicans or enacted with Republican support involved taxing the poor, and not lightly (even the 2004 income tax hike in Virginia, whose highest rate begins at $17,000 a year, hit poor Virginians, and the higher sales tax that year certainly did). How have tax-hiking Republicans tried to fund their transportation “fixes” in the past? Higher gas taxes or higher sales taxes. How did they “fix” it this year? Higher and broader sales taxes. Who feels the effect of these regressive taxes the most? The poor.

As for those of us on the opposing side of these tax increases, how have we made our arguments? To be fair, I can’t speak for all, but I can speak for myself, and I have focused largely on the dynamic portions of the economy, and how they are slammed. I have focused on how the regional tax increases were tax-the-rich in disguised. I ripped the lack of budget discipline. I talked about misguided road priorities and dysfunctional systems.

And my posts railing about the effect of the tax hikes on the poor? Don’t bother looking, even I know they’re not there.

We are rapidly approaching a new and dangerous consensus on the size and growth of government: i.e., big is back. The only arguments we seem to be having is whether the rich should foot the bill (as the Democrats contend) or the poor should (as Republicans increasingly contend). However, turning the Republicans into the tax-the-poor party has horrific consequences.

Firstly, as I’ve hinted above, it politically institutionalizes big government. The distance between America and Europe can really be described in one policy: the Value Added Tax. Without it, the half-social-democracy-half-corporatist-democracy we have built is unsustainable within a decade. With it, the thing can wheeze forward for a generation or more – long enough for our children and grandchildren to assume that this era was the economic equivalent of the Wild West.

Moreover, it marginalizes poor Americans politically. Was there any discussion of the poor in the 2012 presidential campaign? Has there been any in the current races this year? Are we really that convinced, as Republicans, that we have nothing to offer the poor but higher tax bills? The poor have to deal with big government as much as we do – in many cases, more so. They know as well as anyone how inefficient, demoralizing, and draining of human capital it really is.

Finally, it puts us at immediate electoral disadvantage. If the Democrats talk about higher taxes for the richest 5%, while Republicans talk about taxes for the poorest 25%, we’re 20 points behind from the get-go. Not smart.

The Republican Party has much to digest from the last year, and we need to ask, as a party, what we wish to be. There can be several answers, good and bad. I humbly submit a tax-the-poor platform is just about the worst of the lot.

Cross-posted to Bearing Drift

Why the Internet Sales Tax is a mistake

One of the fundamental rules of Washington legislation is that its effect will be the exact opposite of its title. Nowhere is that more true than with the “Marketplace Fairness Act” – the hilarious-if-it-weren’t-so-tragic name given the Internet Sales Tax.

The logic behind this, if one can call it that, is that online sellers are getting an unfair advantage because they can avoid paying sales taxes on their sales to consumers. This is due to the fact that said online retailers are under no responsibility to charge the sales tax in which the buyer lives.

There’s only one problem with that: brick-and-mortar stores don’t have that responsibility either. As the editors of National Review noted (emphasis added):

Historically, sales taxes have been imposed and collected at the point of sale by tax authorities with jurisdiction in that particular location. This arrangement has the important effect of making local tax authorities directly accountable for their decisions: If a township should impose an unreasonable sales-tax hike, then the local businesses to which that matters most have an opportunity to respond, either through the political process or by the expedient of packing up and moving to a new location with more reasonable taxes. Tax competition is a salubrious thing for cities, for states, and for the country at large.

But the tax collectors do not much care for it: Taxing authorities in such high-tax locales as Philadelphia and Maryland’s D.C. suburbs resent the fact that consumers make the drive to Delaware for high-priced purchases. In most places, consumers are supposed to pay an equivalent “use tax” on out-of-state purchases, but those laws are difficult or impossible to enforce in many cases.

In other words, Delaware retailers are under no responsibility to charge the sales tax in which the buyer lives. It is up to the buyer to make up the difference. As one can imagine (and the NR editors note), enforcing this on the ground is as difficult as enforcing it online.

Yet does the “Marketplace Fairness Act” address this? Of course not, because it’s not about the marketplace or fairness; it’s about sticking it to online retailers and letting states gobble up more revenue without any political consequences. Thus, a perceived disadvantage to brick-and-mortar stores would be replaced by an actual disadvantage to online retailers.

So, with the “fairness” argument having crashed and burned, let’s look at the actual effects of this tax turkey:

• Taxes will go up: Of course, that’s a supposed feature rather than a bug, but too many people are trying to get away with the claim that this is merely enforcing an existing tax. That may work for the lawyers, but economists know better: a tax unenforced is effectively a tax that doesn’t exist. As such, the economic consequences will be just as one would expect from a tax hike: sales will fall and tax avoidance will rise.
• Online retailers will face higher costs: Don’t tell me that the federal government will clear everything up with free software for retailers to calculate the myriad tax rates for myriad jurisdictions. What happens when the software errors occur? Or localities change their tax rates and “updates” need to go out? Will the federal government subsidize this software forever? Moreover, why is it that the solution to a burdensome regulation should be increasing retailers’ dependence upon Washington, DC? Haven’t we seen the damage done by corporatism often enough without having to see its damage online?
• Political accountability and transparency will suffer: Everyone in Washington who votes for this will swear up and down that they didn’t vote for a tax hike. Every legislator and local official who reaps the revenue windfall will swear up and down that this was Washington’s doing and they’re just along for the ride. Accountability and transparency in government? That’s so 20th century…

In short, the bill damages both the marketplace and fairness. No wonder Congress is calling it the “Marketplace Fairness Act.”

The Hollande endorsement, one year later

A year ago last Monday, I made my first ever left-wing endorsement for national leadership when I backed Francois Hollande for President of France. I did so for a particular reason – to stop, or at least slow down, the Fiscal Union agreement. Sadly, Hollande basically agreed to cosmetic changes in the FU, and even went forward with his own Fauxsterity debacle for his country. Despite that, I must say the ascension of M Hollande to the presidential office has been far more beneficial than even I expected – albeit for reasons that had nothing to do with his own policy ambitions.

For starters, his attempt to wring the prosperous for enough revenues to keep his government afloat has managed to jolt the business community in France out of its corporatist slumber (Reuters). Economic arguments that are more the norm in Britain and the US were usually swept under the Gaullist rug – until now. France will be infinitely better off now that economic policy will truly be debated, for the first time in decades.

Moreover, while Hollande didn’t push much on the FU, he has shattered the “Merkozy” relationship between Paris and Berlin. The unexpected result has been a slow-motion German reassessment of its place in Europe. At the top, Angela Merkel is finding David Cameron – of all people – more of a kindred spirit on European matters than her French neighbor. More importantly, euro-skepticism in Germany is finding its voice at last, with a new anti-euro party already reaching the support level needed to enter parliament…despite being in existence for less than a month (Reuters).

In short, while Hollande did not stop or slow the FU as I specifically wished, he did break one of the key bonds that gave the disastrous EU the strength it had. The end of that bond has already had repercussions for national sovereignty (none of them bad, that I can see). All in all, I think the endorsement was still a good call.

Germany elite’s euro solution: tax the (other) rich

Some of the closest advisers to German Chancellor Angela Merkel – who is desperate top avoid hitting up her taxpayers again to prop up the euro – have found a solution: soak the European rich outside Germany (Ambrose Evans-Pritchard, Telegraph):

Senior advisers to Chancellor Angela Merkel are pushing for better-off households to pay towards the cost of any future bail-outs for the weaker members of the single currency.

The proposals, from members of Germany’s council of economic experts, raise the prospect of taxes being imposed on property in a country like Spain if its government was forced to seek a bail-out.

The council, known as the “Five Wise Men”, is often used to test new policies that are later adopted officially.

The German suggestion is the latest sign that Berlin is intent on imposing even tougher rules on weaker southern euro members in exchange for using its economic might to support their finances.

. . .

Senior figures in Germany are now arguing that some richer home owners in countries like Spain, Portugal and Greece have so far avoided paying their fair share to rescue the euro, leaving Germany paying too much.

Taxes on property or other assets would mark a significant change in Europe’s approach to funding bail-outs for eurozone members. Until now, the cost of rescue packages for countries like Ireland, Greece and Portugal has fallen largely on people who invest money in either those countries’ bonds or – in the case of Cyprus – bank accounts.

Anyone who’s stuck “underwater” or is “land rich and cash poor” can only marvel at the breathtaking arrogance of the “Wise Men.” The editors of the Telegraph explain how backwards thinking has led to this:

Their starting point is “What is necessary to save the euro?” From there, they end up advocating policies of quite startling brutality. Yet the very differences in housing wealth between nations illustrate, once again, the folly of locking disparate economies into a shared currency. Those in Brussels and Berlin must ask instead: “What is necessary to restore prosperity to our benighted continent?” The answer is to recognise (UK sp) that the euro, in its current form, is bringing ruin to all too many of the nations trapped inside it.

The simple fact is that German exporters are calling the political tune. The euro has been weaker than the old Deutschmark, which has been good for those exporters, but not so good for consumers. The corporatist mindset of the German elite ensures that the exporters get their way. Thus, they start with “What is necessary to save the euro?”

As it happens, the German people can at last have their voice heard on this with the rise of Alternative for Germany – the first Euroskeptic party Germany has seen since long before the common currency was inflicted upon them.

The Fauxsterity Chronicles: Greece

At first read, the Examiner headline gives the impression that Greece is finally getting the message about what needs to be done – “Greek Workers to be Fired.” Here are the details:

The civil service redundancies, with a target of 15,000 by the end of next year will target “disciplinary cases and cases of demonstrated incapacity, absenteeism, and poor performance, or that result from closure or mergers of government entities”.

The sackings will overturn a Greek constitutional guarantee of jobs for life for civil servants, aimed at protecting public sector workers from unfair dismissal due to their political affiliations.

The special protections and widespread political cronyism or corruption led to the Greek civil service becoming bloated, with 700,000 officials in a country of less than 11 million people.

“It’s still a taboo to dismiss people from the public sector. There have been no forced dismissals of employees whose positions are eliminated or who for some reason do not perform,” said Mr Thomsen.

Note that “Mr. Thomsen” refers to Paul Thomsen, who speaks for the International Monetary Fund on the Greek file – and who, at first, looks like he finally drove the important message home.

Well…not so fast (Boston Globe, emphasis added):

(Greek PM Antonis) Samaras said 15,000 civil servants would be removed by the end of 2014, with 4,000 of them by the end of this year. New young employees will be hired in their place.

. . .

Minister for Administrative Reform Antonis Manitakis said Greece’s creditors had long been pressing for 15,000 public sector workers to be sacked without being replaced, but the agreement to hire new workers in their stead followed the higher-than-anticipated number of retirements — more than 180,000 of which are expected between 2010-2015.

On one level, this is just maddening; on another level, it is revealing. The IMF, European Central Bank, and European Union – by agreeing to this – have made it abundantly clear that this was never about genuine economic reform. Governments in Europe can be just as big, bloated, and burdensome on the private sector as they wish. They just have to make sure the accounting isn’t out of whack.

This is classic big-government-on-the-cheap – or, as I now prefer, Fauxsterity – and the “troika” just endorsed it.

In other words, Europe will never fix itself, because Brussels doesn’t want that. So it will be more tax increases and chicanery like this, until it all comes crashing down…

…after German voters are duped into thinking all is well on Election Day, of course.

The Prez’s budget: higher taxes and higher spending

You read that right: the president’s ten-year budget plan calls for higher spending over the next ten years.

Patrick Brennan (Corner) provides the details on the tax side, and finds that the total tax increase actually comes to just over $1 trillion.

That means less than of the “$1.8 trillion in additional deficit reduction” is actually spending “cuts” (about $800B). Why did I put “cuts” in quotes? Because the president’s budget also cancels the sequester, meaning that $1.2T in cuts are “replaced.”

Thus, actual deficit reduction is roughly $600B, and with the $1T in tax hikes, spending actually rises by $400 billion over the next decade under the president’s budget.

Maddening.

House passes amended Plan ’13 From Outer Space (UPDATED: Senate does too)

The House of Delegates approved McDonnell’s changes to HB 2313 (a.k.a. Plan ’13 From Outer Space), by a 64-35 vote. The roll is not up yet, but taxes will go up, including automatically for regions in the future that hit certain population and traffic levels.

I am deeply disappointed. This bill (and I assume the State Senate will grease the skids for this debacle UPDATE: which the State Senate has also passed with the Governor’s changes) will damage the state’s economy, political transparency, and accountability…while doing nothing about its over-centralized and dysfunctional transportation system.

It’s a sad day for Virginia.