Freund hört mit, or: Under US Law, Germans Have No Privacy Rights and Can be Spied on at Will

Feind_hoert_mit

I slapped together a little something (g) for Germany's Legal Times Online about the Snowden case. The editor pepped up the language a bit, but that's fine with me, it's supposed to be a popular format.

What I said is that the Fourth Amendment guarantees US citizens privacy in situations in which they have a 'reasonable expectation of privacy'. Email and (especially) phone calls certainly belong in that sphere. So if the NSA is collecting massive amounts of emails and telephone data randomly, without a specific search warrant, then it is violating the privacy rights of US citizens. According to recent revelations, the NSA has developed internal 'minimization procedures' that instruct agents to stop listening or reading if they find out that they are spying on a US citizen, similar to regulations the German Federal Constitutional Court has required in cases of spying on telephone calls or private apartments. But since the court meets in secret, we have no way of independently verifying these claims. Also, since the Obama administration has blocked all privacy lawsuits with the legal doctrine of the state secrets privilege, no American court has yet ruled on whether these programs are constitutional.

However, the situation in Germany is not very different. German spy agencies have extremely broad powers under existing law, and will gain new ones under the new Telecommunications Law which takes effect on 1 July. There is a parliamentary committee which provides general oversight of requests for surveillance and a so-called G-10 committee which rules on individual requests. They are supposed to follow strict minimization procedures and insist on adequate proof of possible wrongdoing before authorizing spying measures. However, since both of these committees operate in secret, we have no way of knowing how carefully these guidelines are respected. Plus, since there have been no German whistleblowers, we have no real insight into the scope of German programs. As the Green Party speaker Konstantin von Notz recently remarked, it is high time that Germans learned more about what their own spy agency is up to.

One thing that has really angered Germans is the fact that communication to and from and even within Germany are being spied on by the US and the UK. The official position of the US government (in the form of a Senate report) is that foreigners 'foreigners outside the United States generally are not entitled to the protections of the Fourth Amendment.' Thus, the current version of Section 702 of the Foreign Intelligence Surveillance Act provides no protection for the privacy rights of foreigners. The secret court which orders surveillance can authorize blanket data collection on all foreigners, everywhere. The only limitations kick in when it appears that an American citizen may be involved. In the words of the report itself, 'Section 702 thus enables the Government to collect information effectively and efficiently about foreign targets overseas and in a manner that protects the privacy and civil liberties of Americans'.

Of course, this wouldn't matter so much if American and the UK didn't have, and use, spying technology that can sweep up massive streams of data from everywhere and anywhere. As far as remedies for Germany, it's not clear what Germany can do, except send sternly-worded letters (g) to American officials. I'm not aware of any treaty that the US has ratified without reservation which would give Germany a basis for complaint before international tribunals. But I'm happy to be corrected in comments if I've overlooked something.


Fewer Unions, Falling Wages, Rising Inequality

I was kindly invited to give a speech at the annual conference of the German American Lawyers' Association in Freiburg. I agreed, since Freiburg is a delightful place, the annual wine festival's happening at that time, and I can probably get some study time in at the Max Planck Institute for Criminal Law. The downside? I have to talk about collective bargaining. That's the theme of the conference, and although I repeatedly told the very nice lady that wasn't really my field, she was extremely persistent.

So now I'm boning up on collective bargaining. Which turns out to be a fascinating, if depressing story. The modern era of collective bargaining in the U.S. started with the National Labor Relations Act, which was supposed to set up a fair and equitable means of managing labor disputes. However, especially since the 1970s, changes in the American workplace and a concerted anti-union effort by conservative politicians and judges have effectively deprived American workers of the right to strike (for the long version of this argument see this article on how American workers have lost the right to strike).

Here are a few charts that basically tell the story. First, union membership rates:

O-CEPRUNIONIZATIONRATE19482012-570
As the article from which this was taken puts it:

In 2012, the rate of union membership in the public sector fell by more than a full percentage point, from 37 to 35.9 percent of workers, while in the private sector it dropped from 6.9 to 6.6 percent. The combined rate of American workers now belonging to a union stands at 11.3 percent, down from 11.8 the previous year and the lowest figure ever since the bureau started collecting the data in 1983, when the rate was 20.1 percent.

Strikes have also become practically non-existent:

Since the 1970s, wages and compensation for lower-middle and working class people have stagnated or dropped (the lines represent percentile rankings of the population):

Indexed_stagnation

Men are making less in real terms than they did in 1970, and many have therefore dropped out of the labor force entirely:

Hamilton1
 ...and increases in productivity have increased corporate profits and the income of the top 1%, rather than funding a broad, prosperous middle-class:

Change-since-1979-300


How Germany will Handle the Rise of the Robots

Kevin Drum has an insightful piece predicting that artifical intelligence will be here before you think and will radically change the economy:

We've moved from computers with a trillionth of the power of a human brain to computers with a billionth of the power. Then a millionth. And now a thousandth. Along the way, computers progressed from ballistics to accounting to word processing to speech recognition, and none of that really seemed like progress toward artificial intelligence. That's because even a thousandth of the power of a human brain is—let's be honest—a bit of a joke. Sure, it's a billion times more than the first computer had, but it's still not much more than the computing power of a hamster.

This is why, even with the IT industry barreling forward relentlessly, it has never seemed like we were making any real progress on the AI front. But there's another reason as well: Every time computers break some new barrier, we decide—or maybe just finally get it through our thick skulls—that we set the bar too low. At one point, for example, we thought that playing chess at a high level would be a mark of human-level intelligence. Then, in 1997, IBM's Deep Blue supercomputer beat world champion Garry Kasparov, and suddenly we decided that playing grandmaster-level chess didn't imply high intelligence after all.

So maybe translating human languages would be a fair test? Google Translate does a passable job of that these days. Recognizing human voices and responding appropriately? Siri mostly does that, and better systems are on the near horizon. Understanding the world well enough to win a round of Jeopardy! against human competition? A few years ago IBM's Watson supercomputer beat the two best human Jeopardy! champions of all time. Driving a car? Google has already logged more than 300,000 miles in its driverless cars, and in another decade they may be commercially available.

... True artificial intelligence will very likely be here within a couple of decades. Making it small, cheap, and ubiquitous might take a decade more.

In other words, by about 2040 our robot paradise awaits.

...This isn't something that will happen overnight. It will happen slowly, as machines grow increasingly capable. We've already seen it in factories, where robots do work that used to be done by semiskilled assembly line workers. In a decade, driverless cars will start to put taxi hacks and truck drivers out of a job. And while it's easy to believe that some jobs can never be done by machines—do the elderly really want to be tended by robots?—that may not be true. Nearly 50 years ago, when MIT computer scientist Joseph Weizenbaum created a therapy simulation program named Eliza, he was astonished to discover just how addictive it was. Even though Eliza was almost laughably crude, it was endlessly patient and seemed interested in your problems. People liked talking to Eliza.

...Increasingly, then, robots will take over more and more jobs. And guess who will own all these robots? People with money, of course. As this happens, capital will become ever more powerful and labor will become ever more worthless. Those without money—most of us—will live on whatever crumbs the owners of capital allow us.

This is a grim prediction. But it's not nearly as far-fetched as it sounds. Economist Paul Krugman recently remarked that our long-standing belief in skills and education as the keys to financial success may well be outdated. In a blog post titled "Rise of the Robots," he reviewed some recent economic data and predicted that we're entering an era where the prime cause of income inequality will be something else entirely: capital vs. labor.

So, by 2040, we will have robots intelligent enough to perform hundreds of tasks that used to be performed by humans. Let me put on my heavy, black-framed armchair-sociologist glasses and predict how these developments will be received in Germany [snark]:

  • 2035: A spate of articles on American robots will all emerge at the same time in German mainstream publications with titles such as: 'A Terrifying Experiment in the "Land of Opportunity"', 'Alienation in the Post-Human Age: As American as Apple Pie', 'Turbocapitalism and the Terminator', and 'Racial Injustice, Robocop-Style'.
  • 2037: Germany's leading philosopher, Hans-Jürgen Quasselkasper, pens a 35,000-word essay in Die Zeit in which he denounces the introduction of robots as an 'assault on human dignity, the very fundamental value of our Constitutional order' and calls for strict limits on robot labor. It is hailed as a 'bold intervention' by all broadsheet newspapers, and is read in its entirety by 563 people. Pope Kevin II issues an encyclical denouncing the spread of robot labor. The Evangelical Church of Germany issues a statement setting out its 'profound concern' about robots.
  • 2041: German politicians from across the political spectrum, but especially the Greens, call for strict legislation regulating the use of robots and preserving 'humane values' in the workplace and society. The German parliament passes a law prohibiting the import of foreign-made robots into Germany.
  • 2043: To those who complain about the protectionist law passed in 2041, German politicians and elite journalists reply that Germany is 'not going to join the chorus of simple-minded people crying Halleluja! about this promising but dangerous new technology' and that 'countries who prematurely embrace these innovations without considering the risks will one day rue their short-sightedness'.
  • 2045: The European Union convenes a Working Group on Robotics and Society to draft a set of guidelines to 'harmonize the use of robots with European social values' and 'protect the dignity of the worker and patient'.
  • 2035-45: German manufacturers, realizing the staggering profit potential of robots and well-prepared to compete internationally, begin manufacturing robot nurses, robot factory workers, sexbots, robot soldiers, and robot schoolteachers for export to the rest of the world. They're about 10 years behind the U.S. but they establish their niche, and billions in profits flow to Germany.
  • 2043-47: The furor about robots dies down as German-made robots begin be used in Germany and Germans begin to realize just how profitable they are. The federal Parliament quietly revokes the 2041 law. Lobbying by German and other European high-tech firms ensures that the European Union Working Group's final recommendations are non-binding blather.
  • 2047: In Berlin, German Federal President Jimi Blue Ochsenknecht proudly opens the high-tech exposition: 'Germany: Leader in Robotic Innovation'.

[/snark]


Guns Kill More Efficiently than Anything Else

Assault-deaths-oecd-ts-all
Two news stories from yesterday: In China, a man using a knife attacked schoolchildren. 22 were injured, and none died. Another man in the USA attacked schoolchildren using Sig Sauer and Glock semi-automatic pistols, precision instruments designed to efficiently kill humans. There were almost no survivors. Apparently, every single child he targeted was killed on the scene. The local hospital turned away nurses who had come in to help, since there was no more help to give.

Even for a determined murderer, killing someone with a knife is difficult. You'll generally need to hit them several times, and if you don't hit a major artery, they are likely to survive, especially with modern medical treatment. Plus, they will defend themselves, if they're conscious. Killing someone with a bomb is also a challenge -- as recent failed bombings both in the US and in Germany (g) show, it's very hard to competently construct a large bomb.

A semi-automatic pistol is a different matter entirely. Standing well away from your victim, you can launch projectiles at 1,150 feet per second at their head and chest, pumping bullet after bullet into them until you're sure they're dead. The whole process takes seconds. There's almost nothing they can do to defend themselves. You can stay a comfortable distance away from your victims. Plus, you can pick them out specifically and target only the ones you want to kill. The gun that gives you this power is light and easily-concealed.

This is why most societies tightly regulate semi-automatic handguns. There's nothing like them for the combination of easy concealment and potent lethality. There will always be the occasional extremely rare incident in which one person decides to attack a large number of others at once, but only if he uses a semi-automatic weapon is the death toll likely to be high.

This latest American massacre will likely spur more debate about gun control in the US, but gun-control opponents there will rightly point out that tighter regulations probably won't achieve much. The genie of portable, effective killing machines is out of the bottle: the US is awash in 310 million non-military privately-held firearms, millions of which are semi-automatic handguns. There's nothing you can do to take them out of circulation -- at least nothing that is remotely politically feasible. The US will be living with this policy disaster for decades, if not centuries.

(Graph source here)


Marijuana Is Winning the War on Drugs

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The election brought good news. First, Obama's health-reform is safe:

This is the capstone of the Democratic welfare state, the final big-ticket program that's eluded liberals for nearly a century. In Joe Biden's memorable words, it's a big fucking deal. If Romney were elected along with a Republican Senate, he'd almost certainly be able to badly cripple Obamacare, even if he couldn't quite repeal it outright. If Obama wins and keeps the Senate in Democratic hands, it will become institutionalized. And like Social Security and other similar programs that started out small, it will grow over time until, eventually, America really does have universal healthcare.

The ideological debate about whether the government should ensure basic, affordable health-care for all will gradually wither away in the U.S., as it has in every other advanced nation. And something else happened: Colorado and Washington state voters decided to legalize marijuana. Oregon said no. Marijuana is, however, still considered a Schedule I narcotic under the federal Controlled Substances Act. This is the designation given to drugs that have a 'high potential for abuse', no medical uses, and are unsafe even under medical supervision. Officially, therefore, marijuana is considered as dangerous as heroin or LSD. There will be some interesting legal battles if the federal government tries to crack down in states that have decided to let their people enjoy dope.

In the long run, the specter of millions of people openly smoking marijuana and not turning into dead-eyed, shambling mendicants will inevitably undercut the rationale for keeping marijuana illegal. The Governor of Colorado, for his part, warned residents against breaking out the 'Cheetos or gold fish' too quickly. (For my foreign readers, he's not referring to crazed dope fiends eating live gold fish, he's referring to snack foods -- see above -- favored by cannabis conoisseurs). It's hard to paint weed as a terrifying, insidious threat when the Governor is openly joking about it.

The bigger story, though, is the U.S. Supreme Court. With some elderly liberal judges who may retire soon, Romney would have had a chance to change the Court's ideological complexion significantly. The Court is right now considering whether police should have the right to search your home based on the fact that a police dog 'alerted' -- from outside -- to the scent of marijuana inside it. This would be just the latest in a series of decisions giving police broad powers. Radley Balko points out how it all fits together:

But imagine what will happen if the Court finds that a drug dog's alert is sufficient evidence for a search, and that a warrant is not necessary: We may start sending SWAT teams into homes based only on the results of taking drug dogs door to door.

In isolation, it might make sense to rule that it's reasonable for police to break down a door in the middle of the night for a marijuana search warrant. They need to get inside before the suspect can dispose of the evidence. It might make sense for police to use extraordinarily violent tactics in these raids, including putting guns to the heads of everyone inside, including children, because they need to secure the building quickly, and they need to ensure officer safety.

It might make sense to rule that a drug dog's sniff is not a search under the Fourth Amendment, because a sniff is relatively unintrusive. There may be nothing unreasonable about ruling that a drug dog's alert is enough to establish probable cause. After all, we all know that dogs have a finely honed sense of smell. And finally, it might make sense to rule that it is unreasonable to require prosecutors and police departments to provide a particular dog/handler team's field history, because doing so would place an undue burden on law enforcement agencies.

Taken in isolation, you could make a good argument that these are all perfectly reasonable rulings. But put them together. By this time next year, we could be facing this terrifying reality: Police could take a dog/handler team into an apartment complex or to a row of townhouses and have them sniff dozens, even hundreds of residences. That team may have a history in which less than half the dog's alerts lead to any actual recovery of narcotics. No matter. The police could then make note of all the doors at which the dog alerted, and all of those residences could look forward to middle-of-the-night visits from the local SWAT team.

A justice who has spent most of his career in lecture halls and high levels of government may not see how all of that fits together. But any decent criminal lawyer would.


The Failings of a Two-Party Duopoly, Part XXVII

The United States's extreme first-past-the post voting system makes it difficult to sustain nationally-viable third parties (unless they're founded by a charismatic and/or wealthy politician, but these always fade). This means that as soon as the two mainstream parties agree to ignore an issue for their own reasons, it pretty much disappears from the radar screen. The American criminal justice system, for instance, is a dangerous mess, but as Radley Balko points out, its obvious failings have been ignored by both parties so far:

Our broken criminal justice system wasn't discussed in the first two 2012 debates, and it's unlikely it will be addressed in the two that remain. In fact, crime hasn't been a factor in any presidential campaign since 1988, when Vice President George H. W. Bush and political strategist Lee Atwater -- along with assists from Al Gore and CNN anchor Bernard Shaw -- hit Michael Dukakis over the head with them. Since then, the only way either major party nominee has talked about crime has been to promise he'll be tougher on it than his opponent.

Even during Supreme Court hearings, the topic only comes up when partisans promise a nominee will crack down on those technicalities crime hawks (mistakenly) believe have turned prison gates into revolving doors. When the Senate was considering Sonia Sotomayor, for example, Sen. Chuck Schumer (D-N.Y.) complemented her judicial history by noting she had "ruled for the government in 83% of immigration cases, in 92% of criminal cases." Former prosecutor Sen. Amy Klobuchar (D-Minn.) then praised Sotomayor for those occasions in which she had excused police officers who had violated the Fourth Amendment. Vice President Joe Biden told a gathering of law enforcement organizations that Sotomayor "has got your back," an incredibly inappropriate thing to say (even for Biden). Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers, or the American Civil Liberties Union.

...

There's an important debate to be had about privatizing prisons, and whether it's wise to have a government-created industry with a bottom line dependent on keeping as many people locked up for as long as possible. There's the vastly under-reported national scandal of corrupt crime labs and corrupted forensic evidence. The latest incident involves a crime lab technician in Massachusetts who may have faked thousands of drug tests.

We're in a 30-year trend toward police militarization, a phenomenon that has been driven by federal incentives. And we're expanding the use of solitary confinement (even for children).

Politicians are risk-averse creatures of habit. For decades they've been trained to mutter the same soundbites about crime. Polls show America's opinions on many of these issues are shifting, but few people actually vote on them. And the people most affected when the crime policy pendulum swings too far toward government power aren't large enough in number or stature to force a debate.

This also goes for the international war on drugs:

It’s a social policy that, many experts agree, has failed miserably since it was introduced more than forty years ago, tearing apart families and communities across the United States, consuming tens of thousands of lives abroad, and squandering huge sums of money. Yet hardly any national politician is willing to challenge it, and it’s been completely ignored during the 2012 presidential campaign. >I’m speaking of the war on drugs.

Since 1971, when Richard Nixon declared drug abuse “public enemy number one” and stated his intention of waging a “new, all-out offensive” against it, the government has spent an estimated trillion dollars on the war. Much of that money has gone to street-level drug arrests, undercover raids, intelligence taskforces, highway patrols, and—most costly of all—prison beds. Of the 2.3 million people in prison in the United States today, nearly half a million are there for drug offenses, many of them of the low-level, non-violent variety. In 2010, 1.64 million people were arrested for drug violations—80 percent of them for possession.

In Latin America, the war on drugs has sown misery across a vast swath of territory stretching from the coca fields of Peru to Mexico’s border with the United States. Billions have been spent on crop eradication, commando units, military training, unmanned surveillance drones, and helicopters. The result has been endless bloodshed, widespread corruption, and political instability. In Mexico alone, an estimated 50,000 people have been killed in drug-related violence in the nearly six years since Mexican President Felipe Calderón (encouraged by Washington) declared war on his nation’s drug cartels. One result of the crackdown has been to push traffickers into Central America, where they now terrorize Guatemalans and Hondurans. All the while, drugs continue to flow unabated into the United States. In 1981, a pure gram of cocaine cost $669 (adjusted for inflation); today, it goes for $177.


Who Will Pay for Merkel's Greece Visit?

The Euro crisis has laid bare so many psychological undercurrents in German society it's hard to keep track of them all. For one thing, it has unleashed a wave of anti-German sentiment, which is allowing Germans to experience precisely the same kinds of cognitive distortions and biases they themselves exemplified during the Bush Presidency.

Case in point: just a few years ago -- 2006, to be precise -- the German press reported that security for a visit by George W. Bush was going to cost 20 million euro (g). Obediently taking their cue from the press, many Germans complained to me about this outrageous expense, implying that it was all Bush's fault for being such a horribly unpopular man. I hope I responded more with bemusement than irritation. After all, if Germany didn't want to spend that money, they didn't have to invite Bush. Since they did, and since the host country is responsible for the safety of visitors, there seemed to be nothing to complain about. That's life in the big city, people!

Now, Chancellor Merkel is (very properly) visiting Greece, and and the government there has (very properly) called up a whopping 7000 police officers (g) to try to ensure her safety -- in addition to closing off large parts of the government district to protests and shutting down six metro stations (g).

Oddly enough, I have yet to see any hand-wringing articles in the German press about how financially-strapped Greece is going to pay for this.

Continue reading "Who Will Pay for Merkel's Greece Visit?" »


Circumcision: A Thought Experiment

There have been lots of interesting comments on my circumcision piece here and at the various other places it's been posted, and I'm working on a longer reply.

But for now, I'd like to throw out what you might call a Gedankenexperiment, although I'm no Einstein.

It's as follows:

  1. Many German commentators on the circumcision decision call male circumcision 'mutilation' or 'assault' or 'a barbaric custom that permanently deforms'. I hardly have to provide links, do I?
  2. Yet, the parents of the Muslim boy in question voluntarily had their own son mutilated and deformed.
  3. Any parent who insists on having their own child be deformed and mutilated by means of a criminal assault is incapable of acting in their own child's best interests and should have their parental rights terminated -- right? Imagine a parent who, for instance, encouraged their young child to participate in knife fights, or who threw their child down a hill to 'toughen them up'. At the very least, there should be a thorough investigation into their fitness to raise all of their children.
  4. Yet there has been no attempt to track down the parents of this 4-year-old Muslim boy and investigate their fitness as parents. Nor has there been a nationwide policy of questioning the parental fitness of Muslim and Jewish parents who have their male children circumcised.

The Gedankenexperiment is simple: why is this so?

Answer in comments, if you're inclined. My proposed answers are below the fold:

Continue reading "Circumcision: A Thought Experiment" »


Extra: The Berlin Boys' Neoliberal Diktats are Crushing Spain!

The New York Times reports on the disaster that is overtaking Spain:

[Eating garbage is] becoming increasingly commonplace here, with an unemployment rate over 50 percent among young people and more and more households having adults without jobs. So pervasive is the problem of scavenging that one Spanish city has resorted to installing locks on supermarket trash bins as a public health precaution.

A report this year by a Catholic charity, Caritas, said that it had fed nearly one million hungry Spaniards in 2010, more than twice as many as in 2007. That number rose again in 2011 by 65,000.

As Spain tries desperately to meet its budget targets, it has been forced to embark on the same path as Greece, introducing one austerity measure after another, cutting jobs, salaries, pensions and benefits, even as the economy continues to shrink.

Most recently, the government raised the value-added tax three percentage points, to 21 percent, on most goods, and two percentage points on many food items, making life just that much harder for those on the edge. Little relief is in sight as the country’s regional governments, facing their own budget crisis, are chipping away at a range of previously free services, including school lunches for low-income families.

For a growing number, the food in garbage bins helps make ends meet.

Not to worry, though -- the Spanish government is coming to the rescue with even more austerity:

Recession-hit Spaniards will this week be told to swallow yet more austerity as the government prepares a fresh round of reforms and another budget filled with spending cuts and tax increases that will allow it to seek a bailout from eurozone partners.

Pension freezes are also expected to form part of a raft measures to prepare the way for the European Central Bank (ECB) to give Spain support to control borrowing costs that will eat up a large chunk of next year's budget.

The budget is to be announced on Thursday, alongside the reform programme. Neither seemed likely to contain measures to immediately ease Spain's chronic 25% unemployment, which some analysts expect will rise to 26.5% next year.

I've said it before and I'll say it again: If it were the United States or the IMF or the World Bank imposing these policies on Spain, the German press would be aflame with proudly one-sided articles like this one (g) from 1983 (the neoliberal policies imposed by the 'Chicago Boys' on Chile have led to ruin and misery) or this one (g) from 2009 (the IMF and World Bank are forcing policy changes on developing countries by means of debt and poverty) and we'd see websites like this one (g) (advocating debt forgiveness for developing nations).

When international institutions impose those dreaded 'neoliberal' policies, the mainstream German press knows just who is to blame, and righteously thumps the tub, writing articles that read like attac press releases. When Germany does the same thing, the issue suddenly appears in fifty shades of grey, so to speak, and we are reminded that the nations affected have been 'living beyond their means' and that there is 'no alternative' but for them to get their house in order, no matter how painful that might be.

An instructive contrast!