Unpopular Net Neutrality Opinions

Net neutrality has benefits, and regulation has a role in ensuring its continuing existence, but there are several problems inherent in FCC telecom policy and the debate about net neutrality.

History

The new FCC chair (and Trump appointee) Ajit Pai has proposed reclassifying internet service providers as not “common carriers” under Title II of the 1934 Communications Act, thus reducing the available regulatory options for the FCC.

Net neutrality is the concept that all internet traffic should be treated identically by Internet Service Providers (like cable companies) or governments regardless of content, protocol, users, destination, sources, etc. It means that loading a webpage from this blog would not cost you more than loading a webpage from a large company, assuming the content size is similar.

The FCC has broadly promoted net neutrality in the past. Around 2008, the FCC blocked Comcast from slowing the speed of its users who were utilizing BitTorrent to download videos. Comcast appealed and won, with an appellate court ruling that the FCC did not have the anciliatory jurisdiction over Comcast’s network (Comcast v FCC). The FCC next tried to issue an Open Internet Order in 2010, but in Verizon v FCC, that order was largely vacated, as the same appellate court ruled that the FCC could not regulate ISPs unless it classified them as common carriers under Title II of the 1934 Communications Act. In 2015, the FCC classified ISPs as common carriers under Title II and enforced net neutrality rules.

Problems with Title II

A big problem with Title II is that it was written in 1934, 21 years before Tim Berners-Lee, the inventor of the world wide web, was born. In fact, the vast majority of Title II is so useless that when Tom Wheeler proposed ISPs be classified as common carrier, he said that of the 61 Title II sections, the FCC would forebear from applying the entire title except six sections (201, 202, 208, 222, 254, and 255).

One question I cannot answer without more specific legal expertise is whether Wheeler’s rule only allows the application of those sections, or if in the future the FCC can unilaterally decide to apply other sections of Title II, now that ISPs are seen as common carriers. For example, Section 224 of Title II relates to pole attachments. Can the future FCC regulate broadband providers’ pole attachments if they wanted to under Wheeler’s rule? If not, they can certainly write a new rule that applies all of Title II by a vote of the commission.

Perhaps a better solution would be for Congress to pass a new law allowing the FCC to regulate net neutrality, but bar the FCC from regulating ISPs under Title II otherwise. This would narrow the FCC’s focus officially to what consumers care about. Of course, that would require Congress to actually act correctly, which I don’t have much faith in.

Is Title II regulation overwhelming and innovation killing? Ajit Pai has argued so. The New York Times editorial board disagrees, but their argument seems quite lacking.  They dismiss Pai’s claim that broadband capital investment declined since Title II classification as “alternative facts”, but a simple Google search reveals why they found numbers that conflict with Pai. The source, the Free State Foundation, calculated a trend line of broadband capital expenditures since 2003. They calculated the expected expenditures after the Title II regulation as compared with the actual. So while capital expenditures actually increased after the regulation, they increased less than the trend line indicates they should have.

Is it misleading for Pai to say capital expenditures decreased? Yes, or at the very least it’s imprecise. Is it misleading for Title II proponents to say there has been no effect? Probably, although trend lines are tricky. Additionally, the Times argues that the pattern of increased consolidation in the telecoms industry is a symptom of a healthy economic sector. This is a non sequitur. Mergers and acquisitions could be symptoms of profitable or unprofitable companies, depending on who is buying who, but ultimately to me it seems more indicative that economies of scale exist. One possible explanation for recent increase in economies of scale could be an increased regulatory burden. I don’t know if that’s the case, but to suggest that Charter’s purchase of Time Warner is a symptom of a healthy telecoms sector is the Times projecting their own political views onto market actions.

Problems with Net Neutrality

Ajit Pai has argued (in this Reason interview) that ISPs were not favoring some internet traffic over others. This seems incorrect. Comcast v. FCC was specifically about Comcast reducing the speed of some types of traffic. John Oliver points out that Google Wallet was not allowed to function on phones on the networks of AT&T, Verizon, and Sprint since it competed with a joint electronic wallet venture of those companies. On the other hand, Google Wallet still out-competed the networks’ own payment system despite being banned on those platforms. Consumer response was so positive on other networks that the consumers demanded it on AT&T and Verizon. Eventually the joint venture folded and got absorbed by Google Wallet/Android Pay.

Moreover, a few phone networks have run afoul of net neutrality rules by giving consumers free data for certain services, e.g. T-Mobile allowing streaming music to not count against a customers’ data cap. If the service provided by the content producer is so profitable that it can afford to pay for its own bandwidth, is it wrong to give that bandwidth to customers free of charge?

The economics here is complicated. In a perfectly competitive market, content producers could only charge for the marginal cost of producing more content while ISPs could only charge the marginal cost of additional bandwidth. Consumers would pay each company for their respective consumption of their products.

But we don’t have a competitive market, either for content producers (only HBO has Game of Thrones, only Netflix has Stranger Things) and especially not for ISPs. Since cable ISPs are state granted monopolies, there is a solid argument for regulating them, as they have leverage over content producers. That argument does disappear though when there is competition, such as there is for wireless broadband.

It is also worth pointing out that the importance of “neutrality” towards content is only narrowly valid. For example, bandwidth at certain times is more valuable. The Economist has suggested electric power be charged at different rates when used at different times. Similar arguments could be used for internet usage. It is also undeniable that some internet traffic really is more important, and consumers would be willing to pay more to have their bank notifications or business calls come through faster than YouTube videos, which they might be ok with allowing to buffer. Certainly we would want consumers making this decision and not ISPs, especially when there is little ISP competition for most end users. Additionally, such prioritization could be done by software on the consumer/LAN side of the router, and ISPs should likely just be dumb pipes that deliver what we tell them to.

Finally, we should be cautious about locking in rules even if they make sense today. Markets change over time, and there is a possibility that past rules will restrict innovation in the future. Since competition itself can defend against bad ISP behavior (perhaps even better than the FCC), having the FCC focus on increasing competition seems at least as vital as net neutrality. Interestingly, this is what Ajit Pai has argued for (see Reason interview above).

Conclusion

Today it seems likely that a policy of net neutrality by cable ISPs is more beneficial than not. It also seems likely that to protect that idea today, some form of regulation is needed on cable companies that are state granted monopolies in a given area. Such regulation is not as clearly necessary in wireless providers, and we should always be reviewing the importance of FCC regulations in order to avoid a curtailment of innovation. Additionally, any regulation should come from new Congressional legislation, not a law written 80 years ago. However, the benefits of net neutrality should not be taken as given. Variations in the consumer value of content priority as well as bandwidth scarcity during peak hours are perfectly acceptable ways to prioritize internet traffic. The problem arises when monopoly ISPs are doing the prioritizing rather than consumers.

 


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A Few Thoughts on Bitcoin

I have been aware of Bitcoin’s existence for a while, and while I was excited about it a few years ago, it had somewhat dropped off my radar. Perhaps because over the past few months, Bitcoin has seen a big increase in value, I started to revisit it and analyze it as a technology. My experience has been nothing short of breathtaking.

A few years ago, Bitcoin was pretty cool. I even wrote a paper about it, discussing the huge potential of the technology and decentralized, autonomous transactions could totally upend the banking industry. But back when I first got into Bitcoin, I was also interested in Austrian Economics, which I’m largely over now. Their focus on control of the money supply and dire warnings about the Federal Reserve weren’t really borne out by the rather mundane economic growth of the last few years.

Nonetheless, the Bitcoin community has been working on without me, and it has paid off: you can now use Bitcoin to purchase from all sorts of retailers, including Dell, Overstock.com, Newegg, and more. You can also buy all sorts of internet specific services, which to me seems like the clearest use case. These include Steam credit, VPNs, cloud hosting, and even Reddit gold.

The price has jumped up to over $1000 at the end of April 2017 (that’s over $18 billion in total market value of all Bitcoins), and it was briefly even higher a month ago on speculation the SEC would allow for a Bitcoin ETF. The ETF was rejected, but the potential of the currency remains. And technologically, Bitcoin is far more impressive than it was, most notably with a concept called the Lightning Network.

This technology would allow for instantaneous Bitcoin transactions (without having to accept risky zero confirmation transactions). These transactions would have the full security of the Bitcoin network, and would also likely allow massive scaling of the Bitcoin payment network. Drivechain is another project with great potential to scale Bitcoin and allow for applications to be built on top of the Bitcoin blockchain. It would create a two-way peg, enforced by miners, that allowed tokens to be converted from Bitcoin to other sidechains and back again. This would allow experimentation of tons of new applications without risk to the original Bitcoin blockchain.

Hivemind is particularly exciting as a decentralized prediction market that is not subject to a central group creating markets; anyone can create and market and rely on a consensus algorithm to declare outcomes. If attached to the Bitcoin blockchain, it also wouldn’t suffer from cannibalization that Ethereum blockchains like Augur can suffer from.

Mimblewimble is another interesting sidechain idea. It combines concepts of confidential transactions with (I think) homomorphic encryption to allow for completely unknowable transaction amounts and untraceable transaction histories. It would also do this while keeping the required data to run the blockchain fairly low (the Bitcoin blockchain grows over time). It would have to be implemented as a sidechain, but any transactions that occur there would be completely untraceable.

And there are even more cool projects: Namecoin, JoinMarket, the Elements Project, and of course other cryptocurrencies like Ethereum, Monero, and Zcash. This really makes the future of Bitcoin and cryptocurrencies seem pretty bright.

However, we’ve skipped a big point, which is that most of these cool innovations for Bitcoin can’t be done with Bitcoin’s present architecture. Moreover, the current number of Bitcoin transactions per block has just about maxed out at ~1800. This has resulted in something called the Scaling Debate, which centers about the best way to scale the Bitcoin blockchain. Upgrades to the blockchain must be done through consensus where miners mine new types of blocks, institutions running nodes approve of those new blocks, and users continue to create transactions that are included in new blocks (or else find another cryptocurrency). Before any of that can happen, developers have to write the code that miners, validation nodes, and users will run.

Right now, there is a big political fight that could very briefly be described as between users who support the most common implementation of the Bitcoin wallet and node (known as Bitcoin Core) and those who generally oppose that implementation and the loose group of developers behind it. I certainly am not here to take sides, and in fact it would probably have some long term benefits if both groups could go their separate ways and have the market decide which blockchain consensus rules are better. However, there is not much incentive to do that, as there are network effects in Bitcoin and any chain split would reduce the value of the entire ecosystem. The network effects would likely mean any two-chain system would quickly collapse to one chain or the other. No one wants to be on the losing side, yet no side can convince the other, and so there has been political infighting and digging in, resulting in the current stalemate.

There will eventually be a conclusion to this stalemate; there is too much money on the line to avoid it. Either the sides will figure out a compromise, the users or the miners will trigger a fork of the chain in some way and force the issue, or eventually a couple years down the road another cryptocurrency will overtake Bitcoin as the most prominent store of value and widely used blockchain. A compromise would obviously be the least costly, a chain split would be more expensive, but could possibly solve the disagreement more completely than a compromise, while another cryptocurrency winning would be by far the most expensive and damaging outcome. All development and code security that went into Bitcoin would have to be redone on any new crytocurrency. Nonetheless, Litecoin just this week seems to have approved of Segregated Witness, the code piece that is currently causing the Bitcoin stalemate. If Bitcoin’s stalemate continues for years, Litecoin is going to start looking pretty great.

Obviously it’s disappointing that even a system built on trustless transactions can’t avoid the pettiness of human politics, but it’s a good case study demonstrating just how pervasive and pernicious human political fights are. Ultimately, because cryptocurrencies are built in a competitive market, politics cannot derail this technology forever. And when the technology does win out, the impact on the word will be revolutionary. I just hope it’s sooner rather than later.

 


Bitcoin featured picture is a public domain image.

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What is Postlibertarianism? v1.0

When I started blogging here about 18 months ago, I knew that I was having trouble identifying myself as exactly “libertarian”, despite that being my primary blogging perspective for years before that. I’ve mapped out important parts of this “new” position in previous posts, but now I think it would make sense to put everything in one place. Continue reading What is Postlibertarianism? v1.0

Links 2017-02-25

How about this for a defense of free speech? Popehat’s Marc Randazza offers the argument for legalizing child pornography. The article makes a good point that abusing children is quite a distinction from possessing indecent photos of children. Moreover, obscenity can already be banned by the state without a need for an additional legal category. He also makes a good case that the slippery slope is in fact already happening, where parents’ baby pictures are technically child porn, and so are teenagers’ sexting. Very few people are willing to make any sort of case for state overreach in this area, so it makes sense that there would be evidence of overreach. It’s definitely an interesting read.

Also from Popehat, skepticism is an important tool to have when reading the news now, and this is a guide to reading the news like a search warrant application.

This is a cool voting simulation discussion. Each chart displays political candidates as fixed points on a two dimensional voting plane. The shaded areas indicate which candidate would win for every conceivable voter population makeup, and they change based on the five voting systems simulated. Notice that in a plurality voting system, in almost every possible candidate geography, the middle or moderate candidate loses out. Interestingly, this is also true of the the second most popular vote type, Instant Runoff Voting (noted as Hare in the link). The conclusion:

The following images visually demonstrate how Plurality penalizes centrist candidates and Borda favours them; how Approval and Condorcet yield nearly identical results; and how the Hare method yields extremely strange behaviour. Alarmingly, the Hare method (also known as “IRV”) is gaining momentum as the most popular type of election-method reform in the United States (in Berkeley, Oakland, and just last November in San Francisco, for example).

The Electronic Frontier Foundation has a Surveillance Self Defense page that details basic internet security concepts as well as tutorials on how to use several important security software apps, like PGP, OTR, Signal, Tor, etc. Absolutely the best introduction for anyone first learning about security.

Scott Alexander had an interesting review of Eichmann in Jerusalem, which talked about the trial of a former Nazi official in Israel some decades after the Holocaust. Eichmann’s reasoning is bizarre in that he seemed to try and get the audience to sympathize with his hard work and lack of luck while in the Nazi bureaucracy. There are also interesting discussion of the varying success of societies resisting the Nazi regime.

Scott also reposted his Anti-libertarian FAQ, which is still one of the better arguments against extreme libertarianism, detailing the shortcomings of an anarcho-capitalist or minimalist state. It is one of the reasons this blog is postlibertarian, and not libertarian-all-the-way.

Bryan Caplan on limited government as insurance, and his related point that one way to limit government is to have an additional veto chamber legislation must pass through. To be effective, the chamber would have to be populated by government policy skeptics–i.e. libertarians.

Has Trump actually done a ton of things? Well, if you take a look at the VIX volatility index, market volatility is at a relative low at present compared to the last 3 months, pretty low of the last 6 months, and right around its lowest level of the last 5 years. Marginal Revolution muses on explanations for this phenomenon.

This Politico article discusses Curtis Yarvin, a.k.a. the well known Neo-reactionary Mencius Moldbug. Yarvin disputes having any connection with Steve Bannon, but this would actually make me less nervous about Bannon as a person if it were true.

There was a big nomination fight for Betsy DeVos. I didn’t get it at all, as school choice is a pretty good idea, adding some very limited market accountability to public schooling. Reason does a good job explaining the benefits of school choice here.

Supply chains are more efficient because they are international. Additionally, supply chains must be international if they want to compete.  This is undeniable. Here we have another article on international supply chains. Trying to create protectionism in international trade is trying to centrally plan complex international supply chains. Central planning doesn’t work.

Bryan Caplan and Ed Dolan of the Niskanen Center had a long discussion of the Universal Basic Income. Ed Dolan’s blog has the whole back and forth, but it’s not the greatest formatting. If you want to see it all with individual links, here is the list. 

Caplan also debated Will Wilkinson at ISFLC about the UBI, and here is his opening statement. Overall, I find Caplan somewhat more convincing, because we just don’t know how many people will reduce their labor output once they can get a UBI. I would like to see federal funding where a state can only take the money if they do a randomized control trial when implementing the program for several years.

Jeffrey Tucker’s old article on Libertarian Brutalism is fascinating to think about nowadays. He divides libertarianism into both a freedom to cooperate and a freedom to say “screw you and leave me alone”. The first type says that the civil rights movement succeeded because people rebelled against the restrictions the state put on people, and while they are wary of using state power to fight prejudice, prejudice itself is obviously wrong. The second says that state imposition of ideas is wrong in every context, and if people want the freedom to discriminate, they ought to do it.

Related: Richard Spencer showed up at ISFLC, and Jeffrey Tucker was seen on camera telling him fascists weren’t welcome at an anti-fascist conference. I’m pretty much ok with this. No one was punched, no physical altercations took place, and many libertarians seemed to express their will to not associate with unsavory people. Bleeding Heart Libertarians covers the incident with the important point that it is no longer a thought experiment of what we should do when Nazis show up to protest our events.

Another simple argument about immigration restrictions: SpaceX can’t hire foreigners because their technology is classified as weaponry. Therefore, they can’t hire the best people to come to the United States and make our private space program better than other countries’ public ones. That’s pretty disappointing if you are even vaguely interested in space travel, free markets, or even American exceptionalism.

I’m not sure what’s going on with Bitcoin. Apparently it’s being pushed higher on the talk of a possible Bitcoin ETF in the works? Either way, I had become really disinterested in Bitcoin at the beginning of last year as the community fight about block size had totally lost me. Yet, now it seems the network is no longer under heavy load. All my recent transactions have gone through pretty quickly. Of course, there are still apparently even tech writers who have no clue what Bitcoin is or why it is useful. Remember, if you like what we do here, you can donate to Postlibertarian with the Bitcoin address at the bottom of the sidebar!


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Flynn and the Deep State

I was listening to the most recent Reason podcast with Nick Gillespie interviewing Eli Lake about Michael Flynn’s ouster as National Security Adviser. I had a couple thoughts on it.

  1. Flynn talking to the Russians about sanctions as lame duck Obama imposes sanctions. This just isn’t that scary to me. Maybe it’s a violation of the Logan Act, but maybe that’s another reason the Logan Act is dumb, not a reason Flynn is bad.
  2. Flynn lying to Mike Pence about what was discussed. This seems pretty bad. However, they must have had transcripts of the conversations, so who knew what and when? Did the President know they had discussed sanctions when Pence told the press they had not? Did Pence know? Flynn took the fall, but he may not have been the real problem. Certainly at some point the President found out and waited until the story was public before sacking Flynn.
  3. Intelligence agencies using information they gathered while spying to conduct political activity and attack political enemies. Really, really bad. This is basically the worst case scenario for how mass surveillance can be misused. Yes, in this case, the spying was done on a line most people would know is tapped, but these intelligence agencies are operating without oversight. Sure, it was nice of them to leak information that Trump was keeping from the public, but what’s to stop them from leaking information on the personal activities of political enemies of the FBI, NSA, and others? Was their interest in the public good or their own political objectives? It seems that a better system where whistleblowers could reach out to (as an example) members of Congress without retribution would be much better, assuring only information relevant to public discourse is released.

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Only One President Has Defied the Courts

It’s not Trump.

Or, I should say, it’s not Trump yet. However, given this administration’s…broad view of executive power, it’s worth looking at how past presidents have interacted with a court system that opposed them. Most presidents, as you would expect, reacted to an unfavorable court ruling by obeying the courts’ directive, with only a few real exceptions.

From history class, I recalled that Chief Justice John Marshall had ruled against Andrew Jackson’s interest in dealing with the Native American populations. But upon further inspection, it appears that despite the famous quote of Jackson’s “John Marshall has made his decision; now let him enforce it!”, the ruling in Worcester v Georgia was actually not a constitutional crisis. The quote itself seems apocryphal.

Marshall ruled that Georgia did not have the ability to regulate the interaction between Georgians and the Cherokee; instead, only the federal government has that power. Georgia complied and they freed the plaintiff, Worcester, eventually, but Andrew Jackson had nothing to enforce, since the federal government was not a party to the suit. Moreover, the Indian Removal Act had already been passed, and so the removal of native tribes on the Trail of Tears continued, with Marshall’s ruling changing nothing.

In 1942, German sabateurs were captured on American soil. President Franklin Delano Roosevelt issued an executive order declaring they would be tried by a military tribunal, and they appealed that the President could not try them under a military tribunal, and they petitioned for a writ of habeas corpus under the 1866 decision Ex parte Milligan which stated that civilians in the U.S. could not be denied habeas corpus and their right to trial. In Ex parte Quirin, the Supreme Court ruled against the Germans, siding with the President. Pretty straightforward, except according to Newt Gingrich (couldn’t find it anywhere else), Roosevelt threatened the Court that he would ignore their ruling and refuse to issue a writ of habeas corpus if the justices decided against him. So not a constitutional crisis, just the threat of one.

In 1952 there was a famous case of Truman seizing control of steel mills during the Korean War. In Youngstown Sheet & Tube Co. v. Sawyerthe Supreme Court ruled against Truman, stating that the powers the president claimed to have under the Taft-Hartley Act were not present. One of the concurring opinions was that of Justice Robert Jackson who divided presidential power into three categories: (1) Powers explicitly granted or implied by Congress, (2) Powers that Congress has not stated a position on, and (3) Powers that Congress has explicitly or implicitly rejected from giving to the president. This has become the standard way of analyzing presidential versus congressional power. Of course, at the conclusion of the case, Truman immediately returned control of the steel mills to their owners. Again, the Court’s decision was respected.

Perhaps the most famous case of executive action gone overboard is the Watergate scandal. A special prosecutor obtained a subpoena ordering Nixon to turn over certain conversations he had recorded. Nixon argued that the special prosecutor had not proven the tapes were important to the investigation, that the courts did not have jurisdiction over this “internal” executive branch matter, and that the President has absolute executive privilege of communications between high government officials. The Supreme Court ruled unanimously against him on all three counts. However, in United States v Nixon, Nixon did comply and turn over the tapes, despite it likely ending his presidency. This was a major moment, as I detailed in “Against Trump“, several months ago. If he had refused, would the court have been able to hold him in contempt and have U.S. Marshals arrest him? Technically, the marshals are part of the Justice Department, so that seems problematic, as the Justice Department answers to the President. Regardless, we have gone through almost all the famous cases, and the President has basically never gone against an explicit court decision.

Going further back than any of these presidents, it’s possible that Jefferson was the first to have actually defied the courts. In 1807, Thomas Jefferson signed the Embargo Act which was meant to punish Britain and France during the Napoleonic Wars for their attacks on American shipping. It was a pretty miserable failure, and apparently in Gilchrist vs Collector of Charleston, Justice William Johnson ruled against the government’s authority (although this was a congressional action, not just executive action). The New Yorker says that despite this ruling, the policy remained in place until 1809, but it was so early on in American history that I’m having trouble finding any sources to validate that claim.

But we can do better than an alleged delayed repeal of an unconstitutional act of Congress from 200 years ago! The best example of defiance on record belongs to Abraham Lincoln in the aftermath of Ex parte Merryman, and it is quite unrepentant.

In 1861, Chief Justice Taney (in the capacity of a Circuit Court) ruled that President Abraham Lincoln had unconstitutionally suspended the right to the writ of habeas corpus during the Civil War. The court ruled only Congress has that power. Lincoln and the army defied the order. Their argument was hilariously reminiscent of Trump, stating that Taney had not actually ordered them to release Merryman. Of course, they didn’t stop there as several newspaper owners and editors were also detained by the federal government, as well as eventually the Baltimore police chief, the Baltimore mayor, and even 30 members of the state legislature! A Maryland state judge was not only arrested, but beaten unconscious by federal troops, and then held without being charged for six months.

Even after the judge’s ruling, Congress did not vote to authorize Lincoln’s suspension of habeas corpus, until two years later, in the 1863 Habeas Corpus Suspension Act.

So what are the takeaways? One is that it’s fairly common for presidents to claim they have more power than they do. Obama, for example, lost in the Supreme Court more often than any modern president. It is, however, highly uncommon for presidents to actually defy the courts and continue to use their claimed powers when the courts have ruled against them. If Trump were to do so, by my estimate he would be the only person to do so not during a civil war.

Another interesting point is that in terms of abuse of power and constitutional crises, Trump has done nothing in comparison to Lincoln. Certainly President Lincoln faced extenuating circumstances and a secession crisis that may have made further constitutional crises seem minuscule in comparison. Nonetheless, it seems clear in hindsight that suspending habeas corpus did not improve support for the Union in Maryland, nor was jailing critical members of the press really necessary for victory. Interestingly, according to author Marc Neely, Lincoln was able to get away with these civil liberties abuses because they were largely aimed at three groups with little political power: residents of southern states who had been stuck on the wrong side of the border when war broke out, residents of border states where Lincoln had little political backing anyway, and foreigners.

Of course, if anyone was justified in taking extreme actions on civil liberties, it would be the president during the civil war, but unfortunately, every executive targets politically vulnerable groups and justifies it under national security reasoning (AdamsWilsonFDR, NixonGeorge W. Bush). And as you’d expect, Lincoln’s actions have become a precedent for other abuses. This essay from the Heritage Foundation in 2004 cites Lincoln’s actions in justifying President Bush’s holding of “enemy combatants” without a trial, equating the war on terror with the dangers of the Civil War. Trump has used related rhetoric words to describe threats from immigration. Were he to ignore a court order in the future, it’s virtually certain to be under national security justifications.

Finally, regardless of Lincoln’s accomplishments, we should be very concerned with any presidents who cite Lincoln’s extreme wartime actions as justification for their policies. Lincoln’s circumstances were extreme, and even then I would argue his defiance of court rulings was questionable. Any test for when it is acceptable to suspend civil liberties should be equally extreme in rigor. For example, unless states have actually seceded and there currently exists a newly elected second president of those seceded states, Congress should not even consider curtailing civil liberties, much less the President alone. Nonetheless, the long history of executive overreach by American presidents is likely to continue under Trump. We can only hope it never reaches the unprecedented event of peacetime court defiance.


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Encrypted Communication Apps

I have discussed this idea in the past, but normally I’ve only gotten excitement about encrypted communication from my fellow libertarians and netsec friends. But with the current Presidential situation, there seems to be more interest in communicating without being overheard by the government, even among my government-loving left-wing friends. And this is excellent! Even if you don’t need privacy, by communicating securely all the time, you make it less notable when you do have to communicate securely, and you create more encrypted traffic that other government targets of surveillance can blend into.

First, let’s go over a very quick summary of encryption. If you’re already familiar with encryption, skip down past this section and the pictures to the list.

Public Key Encryption in 5 Minutes

An encryption algorithm takes information, like text, numbers, picture data (it’s all just 0s and 1s to computers) and outputs different text on the other side. A good encryption algorithm will output text that looks randomly generated so that no information can be gained about the source text. That output is then sent out in the clear (over the internet, where people might be spying) to the recipient. The recipient then reverses the process, decrypting the message and getting the original text, numbers, picture data, etc. However, if an algorithm always created the same output data from the same inputs, bad guys could figure out what you were saying pretty quickly. This introduces the idea of keys. A key is a number the algorithm uses to change the output in a predictable way. If both the sender and the recipient have a secret key, they can use their keys and the algorithm to send messages that only they can read (without the right key, the algorithm won’t reverse the encryption):

Symmetric key encryption. Public domain image.

But we can do better! In our previous scenario, we need to somehow communicate the secret key separately from our message. That’s a problem, since we likely are using encryption precisely because we can’t communicate openly. The solution is something called public key encryption. In this system, each person has two keys, one public and one private. To send someone a message, you can encrypt the message with their public key, and then send it to them. Then only they alone can decrypt the message with their private key.

Public key cryptography. Public domain image.

The reality of the mathematics is slightly more complicated, but for our purposes, what matters is how the public and private keys exist in each messaging app. Messing with these keys is difficult and confusing for users, but loss of the private key means communication is unsecured. Therefore, when using encrypted messaging, it’s important to be aware of how the app uses and manages the keys.

The Best Apps

The following is my ranked order of preferred secure communication:

1. Signal. This the gold standard encrypted communication app. It’s open source, free, has group chat, works on mobile and desktop, and of course is end-to-end encrypted. It even has encrypted voice calls. The one significant drawback is that it requires a phone number. It uses your phone number to distribute your public key to everyone that needs to contact you.  Because of this, it offers excellent encryption (requiring no security knowledge!), but no anonymity. If you want that, check the next entry.

2. PGP Encrypted email. So this one is a bit complicated. OpenPGP (stands for Pretty Good Privacy) is an open protocol for sending encrypted messages. Unlike the other apps on this list, PGP isn’t an app and therefore requires you to produce and manage your own keys. The tools you can find at the link will allow you to produce a private and public key pair. To send a message to someone else, you will have to obtain that person’s public key from them, use the software to encrypt the message with their public key, and then send it to them. Because it is so much work, I have this method second on the list, but there is no better way to communicate securely and anonymously. To better distribute your public key, I recommend keybase.io (use that link to send use encrypted emails!). The good thing about PGP is that it can be used with any email, or really any other method of insecure communication. Additionally, it’s open source, free, and very encrypted. 

Both Signal and PGP are very secure methods of communication. The following apps are good, but they are not open source and thus are not as provably secure. They are still better than just using unencrypted methods like SMS text, email, etc.

3. Whatsapp. WhatsApp is pretty good. It’s free, widely used, implements Signal protocol (and requires a phone number), works on mobile and desktop, has group chat and encrypted phone calls, and is encrypted by default. Moxie Marlinspike, the guy who made Signal, the number one app on this list, actually implemented the same Signal protocol on WhatsApp. That’s great, but unfortunately, WhatsApp isn’t open source, so while Moxie vouches for WhatsApp now, we don’t know what could happen in the future. WhatsApp could push out an update that does sneaky, but bad things, like turning off defaults. It’s also important to acknowledge that WhatsApp’s implementation already isn’t perfect, but it’s not broken. If you use WhatsApp, it’s important to make sure the notifications are turned on for key changes. Otherwise, it’s an excellent, widely used texting substitute.

4. Threema. Threema has an advantage in that it isn’t based in U.S., and it’s more security focused than Whatsapp. Threema is fairly feature rich, including group chat, but it isn’t free, it’s limited to mobile, and it isn’t open source. Threema uses the open source library NaCl, and they have a validation procedure which provides some comfort, although I haven’t looked at it in depth and can’t tell if it proves the cryptography was done perfectly. This paper seems to indicate that there’s nothing obviously wrong with their implementation. Nonetheless, it cannot be higher on this list while still being closed source.

5. FB Messenger secret conversations. Facebook Messenger is a free app and when using its secret conversations options, the Signal protocol is used. The app is also widely used but it takes effort to switch the conversations to secret. An encrypted app that isn’t encrypted by default doesn’t do much good. FB Messenger does let you look at your keys, but it isn’t as easy to check as it is in WhatsApp, and since it isn’t open source, keys could be managed wrong or defaults changed without us knowing. It also doesn’t have other features like group chat or desktop versions.

6. iMessage. Apple has done a good job with an excellent secure protocol for iMessage. It’s also feature rich, with group chat and more, but it’s only “free” if you are willing to shell out for Apple products. While Apple does a good job documenting their protocols, iMessage is not open source, which means we can’t verify how the protocol was implemented. Moreover, we cannot view our own keys on the app, so we don’t know if they change, and we don’t know how Apple manages those keys. It is therefore possible that Apple could either loop government spying into their system (by encrypting all messages with an extra master key) or simply turn over specific keys to the government. The amount you are willing to use iMessage to communicate securely should be determined by the amount you trust Apple can withstand government attempts to access their security system, both legal and technological.

Things I have specifically not listed on purpose:

  1. Don’t use SMS. It’s not encrypted and insecure. It would be good to not even use it for 2-factor authentication if you have a better option.
  2. Don’t use email. It’s not encrypted and insecure.
  3. Don’t use Telegram. They created their own “homemade” crypto library which you should NEVER EVER DO. Their protocol is insecure and their encryption is not on by default. In fact, there are at least two known vulnerabilities.

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The Obama Presidency Was Bad

We’re already caught up in how terrible the Trump presidency is, but over the next four years, it will be important to remember just how bad the Obama presidency was. When overcome with frustration at the current administration, I would urge readers to come back to this post and remember that the last president was also quite terrible. In his farewell speech, Obama tried to make the argument for his presidency’s accomplishments, but many of them were simply court cases that were decided while he was president, or decisions that were nice but had little real policy impact.

There have been plenty of reflections on the Obama presidency, but I think a high level overview of everything Obama did would put in perspective just how awful he’s been, especially as we experience the incompetency and horrible policy decisions of the current administration. I’ve done this by letter grades A through F.

The A’s

Iran Nuclear Deal

So…there was only one thing I could give an A to. Even this A is very hesitant. We did give up a lot for this deal–the Iranian government is pretty awful and by unfreezing their assets, they got access to very large amounts of money. However, I don’t think there was much else to do. Unless Republicans actually wanted to declare war on Iran, this seems like the only way to stop them from developing a nuclear weapon.  Iran’s nuclear program will be prohibited from refining any uranium for 15 years, and this was accomplished without any military intervention whatsoever. That’s pretty excellent. Moreover, the average citizens of Iran matter as well and it is somewhat unfair to punish them with high inflation and economic hardship because their authoritarian government is irresponsible.  Cato expands more here.

The B’s

Trade

One of the most important accomplishments is that Obama’s administration worked to pass several free trade agreements with Korea, Colombia, and Panama. He also tried to complete the Trans-Pacific Partnership and the Transatlantic Free Trade Area, although he could have really pushed harder on these initiatives. Obama didn’t do a great job making the case for free trade and his signature deal was ultimately a failure; honestly, a B is generous here, and is more of a function of the importance of free trade more so than Obama’s actual impact. Also worth noting is that his rhetoric while campaigning was pretty vigorously anti-trade, so he should be commended for changing his mind on this.

Gay Rights

Obama ended Don’t Ask, Don’t Tell, but was still on the record as anti-gay marriage as late as 2012. Sure, public opinion on gay marriage shifted rapidly, but Obama basically waited until it was 50-50 to switch to the right side on this; the Libertarian Party has been on board with gay marriage since the 70s. He should also be applauded for essentially not getting in the way of the court case. I know that’s a low bar, but he could have fought it and tried to keep the DOMA. The other issue is that while this is excellent, the impact of gay marriage legalization is somewhat limited to people who can take advantage of it.

Cuba

The Cuban embargo was imposed over 50 years ago in a bid to quickly end Castro’s dictatorship on the island. It failed. 25 years after the Soviet Union had disintegrated, a president finally spent some political capital to remove an outdated institution. Trade embargoes harm populations, and trade embargoes on a country that has been crushed by horrific socialist economic policies are even more harmful. The president cannot remove the embargo, but everything he can do without Congress, Obama has done on this issue. Trade can bring countries together, and Obama took steps to build those bridges. If he had actually gotten the embargo lifted, this would be an A.

The C’s

Marijuana Legalization

And that’s it for the entirely positive! Marijuana’s big progress had basically nothing to do with Obama, and Obama actually started out fighting it, performing more federal raids on state legal marijuana dispensaries in his first term than Bush. Eventually the administration did make the decision not to continue attempts to enforce marijuana laws with federal police forces. While kind of obvious and not very impressive, this may turn out to be something we remember fondly during the long night of the Jeff Sessions era.

Healthcare

As an incredibly brief overview, the ACA is flawed because it does nothing to address the fundamental problem with the healthcare system: a lack of market forces.  The laws of supply and demand create incentives for lower cost and higher quality care. Plastic surgery and lasik are not covered by insurance and thus must compete on price and quality and over time these areas have seen remarkable improvement with prices remaining the same or even dropping.

Our insurance system insulates both consumers and providers of healthcare from the market prices; consumers don’t pay for care, they don’t pay different prices at different places, and they often don’t even buy the insurance that does pay for care. Instead their employers pay for the thing that pays for their healthcare. And sometimes, if you go to a hospital, the insurance doesn’t really pay for care either, it pays the hospital in obfuscated and arcane ways, which in turn provides the doctors and actual equipment needed to provide care. It’s a complete mess.

The ACA did do some nice things like allow people with pre-existing conditions and people who didn’t get their healthcare through their employees and poor people to get health insurance. This is great, and any healthcare reform should strive to do that. However, by not addressing the price issue, they doomed these reforms. Things have sputtered along, but healthcare costs have kept rising, and now insurers are stuck with a disproportionate amount of sick people, needing to raise prices, which only drives away more healthy people. The death spiral was a predictable consequence (and indeed I did predict this in 2010 in a blog attached to my real name and thus will not be linking to here). Obamacare was not a poorly intended bill, but it was an incredible missed opportunity to actually fix the healthcare system. The only reason I didn’t give it a lower grade was because the system was so bad already, it’s hard to argue it was made that much worse.

Global Warming

Obama took steps to reduce climate change. Even if you’re not concerned about the most dire predictions of global warming, that’s probably a net benefit. He also was able to get China to sign onto the Paris Agreement. While not having legal punishments for countries who break their promises, it’s a solid negotiating achievement. However, Obama also implemented, largely by executive order, regulations on coal plants in the US that will have very little impact on carbon emissions. It’s also not at all market oriented, and therefore not particularly economically efficient. Additionally, in his first year in office, Obama had a chance to try and pass a more economically efficient carbon credit trading bill. Assuming climate change is as dire a threat as many say it is (I’m admittedly less worried), it seems to be a poor decision to spend political capital on other bills that did pass, especially something that was as flawed as Obamacare.

The Economy

The employment rate is lower than it has been in a long time, but the problem is this graph. Labor force participation has plummeted from 65% in the depths of the recession to around 62% now. The last time it was this low was before 1980. Since the current labor is around 160 million people, and we are at 62% participation, that means the cohort of the working age population is about 258 million. In 2009, unemployment was around 9%. With a labor force of 155 million people, that’s almost 14 million unemployed. Today with an unemployment rate of 4.7%, that’s only 7.5 million unemployed. However, looking at the people not in the labor force in 2009 there were 83.5 million not working but not unemployed. In 2017, there are 98 million not working but not unemployed. so unemployment dropped by almost 7 million, yet more than twice that many more people were staying out of the labor force entirely. The economy isn’t in free fall, but it’s not knocking it out of the park either, and this is 8 years after the recession. This isn’t entirely Obama’s fault, as the Federal Reserve is much more responsible for economic success overall, but the things Obama did have control over were abject failures: fiscal restraint, entitlement reform, and deregulation.

Immigration

Obama’s legacy on immigration liberalization is mixed. Unfortunately, as this is one of the more important issues in improving the world, a mixed record is disappointing. Obama deported more people than George Bush and he failed to pass any sort of comprehensive reform bill. Obviously, he couldn’t pass bills on everything, but this would have been a pretty important area to do so. Obama did however create an executive order delaying deportations for millions of illegal immigrants. This was a bit odd constitutionally, but with so many illegal immigrants in the United States, it would be impossible to deport them all anyway. Obama’s order simply prioritizes some over others, protecting children and parents of American citizens. This was certainly a good policy, but unfortunately Obama’s legacy in this area should have been so much better.

The D’s

Endless Wars

Obama is the first president to be at war for every day of his presidency. From Iraq to Afghanistan to Libya and Syria, to undeclared wars and bombings in Yemen and Pakistan, we have entered a new era of endless war. Libya is specifically horrifying: Obama chose to involve the American military in Libya unilaterally. He explicitly did not get authorization from Congress, and in fact Congress explicitly voted against a resolution to authorize his military involvement after the fact. That is a terrifying precedent to give Donald Trump.

The only reason this category is not an F is because of Obama’s continued reluctance to expand the US involvement in Syria.  Of course, he did this in the worst possible way, by drawing a line in the sand and then backing down from it but it’s undeniable that a larger American role in Syria would have involved the US in one of the largest, bloodiest civil wars of the last decade. Of course, we have not even touched the fact that American troops are in Iraq 14 years after the invasion, and many US contractors remain in Afghanistan 16 years after that invasion. Obama has still institutionalized war in way never before seen.

The F’s

Surveillance

I mean wow. How did we get here? If you want all the citatations, this Mashable article is a good start. The United States government engages in broad sweeps of Americans’ phone records through unconstitutional general warrants issued via a secret court that had no defense team, no oversight, and has only rejected a handful of warrants in its entire history. The NSA also had a program for collecting data on foreigners and Americans from major technology companies, as well as a massive database storing all of that information for later search. Every available method of siphoning data is apparently being used.  The NSA also invested heavily in ways to break internet encryption standards. They even paid $10 million to RSA to get them to set their default encryption algorithm to one that was fundamentally broken in one of their products. Most impressively, it turns out that the big phone record collection the NSA was conducting in total secret, that had no oversight and Senators couldn’t even talk about, it’s illegal according to a federal appellate court.

It was such a disaster that Congress eventually tried to pass a reform bill to fix Section 215 of the Patriot Act which is what the courts cited as the justification for these general warrants. Yet in the end, that bill was watered down to the point of uselessness, with Justin Amash, Thomas Massie, and Rand Paul all voting against it due to its lack of real power. In fact, the bill extended the Patriot Act for several years. Obama’s legacy in this area is a total disaster, and he leaves an out of control intelligence agency with no oversight in the hands of a petty authoritarian. The NSA (and all agencies they share information with) knows intimate details about all of our lives, our communication patterns, and our digital existences. As we’ve written before, this is not good.

Transparency

Reason does a good job tearing the Obama administration apart over the “most transparent administration in history” line. Again, this area is such a disaster there are too many things to cover. We can start by discussing how just a month or two prior to the Edward Snowden revealing everything we talked about in the last section, DNI Clapper blatantly lied to a Senate committee about the government’s spying capability. Obama himself has hardly given any interviews to the press. His administration has had more than double the Espionage Act charges against whistleblowers than all previous administrations combined. Which is especially concerning since none of these were acts of espionage! These were legitimate problems that were hidden from view from the public, brought to light by people doing the right thing. But the secrecy was pervasive throughout the administration; regular employees were banned from talking with reporters, a record number of FOIA requests were denied and at least 1 in 3 were denied improperly (which was only ever found out if challenged), and, of course, the government had a secret extrajudicial kill list.

Drone Strikes

Conor Friedersdorf writes that in Obama’s first year in office, his administration conducted over 100 drone strikes…in Pakistan. Quick recap: Congress voted for an Authorization of the Use of Military Force against the perpetrators of the 9/11 Attacks, which allowed the government to invade Afghanistan. Congress also voted to go into Iraq. Pakistan is not one of these countries, yet apparently Obama was carrying out an entire proxy war via drone strikes. In 2010, those strikes only intensified, yet it was worse than that; to cloud the truth, the Obama administration counted all military age males in the vicinity of these strikes as combatants, regardless if they were civilians or not. There were eventually reforms to this process, and the number of civilian casualties per strikes started to go down, but this is but the smallest of victories. In waging these undeclared wars in Yemen, Pakistan, and Somalia, the Obama administration concocted an absurd “legal” process to target specific individuals without a trial, including American citizens. We are talking about a logistically planned and funded protocol for murdering American citizens overseen only by the President. This process eventually ended up killing a civilian by accident, a 16 year old American. This is unjustifiable. No one was ever held accountable for these lawless actions, and the president retains power to murder at will, which he has promptly done, murdering the deceased teenager’s sister this past week. Someone get this guy a Nobel Peace Prize.

Executive Power

This section condenses much of what Gene Healy says in his excellent piece “Goodbye, Obama”. The powers the Obama administration seized and expanded are vast. While initially running against “dumb wars” and unauthorized wars, Obama became the first president to be at war for every day of his presidency. He undertook drone strikes in countries where he had authorization to be in, he even undertook an entire military action in Libya when Congress had expressly voted against supporting it. He continued to use the 2001 AUMF six years after the death of Osama bin Laden and against a group (the Islamic State) that essentially didn’t exist on 9/11. And the Trump administration has continued this justification. His drone strikes have killed hundreds of civilians, and even American citizens. He has created a secret kill list with no oversight from courts or Congress. He has ascended to new heights of secrecy and prosecution of whistleblowers, and he has thwarted attempts at transparency at every turn. Without public knowledge, the ultimate oversight of the democratic process is destroyed as well. And none of this is even touching areas outside national security where Obama also took unilateral presidential orders to new and creative areas. These include instituting new immigration law by executive order when it was bogged down in Congress, creating new overtime labor rules, adding new environmental regulations on power plants, national school curriculum requirements, and even unilaterally amending Obamacare. Healy writes “More than any recent president, Obama has embraced and, to some extent, legitimized the anti-constitutional theory that congressional inaction is a legitimate source of presidential power.”

Obama’s legacy is the Imperial Presidency. Simply by occupying the same office as Obama, Donald Trump inherits vast powers, legislative, military, and judicial. Americans’ private information is available, their lives at risk without the need for due process, the very laws of the country can be changed via the presidential pen. Barack Obama has accomplished much during his presidency, but most of his important projects have ended in utter disaster, and the manner of their attempted accomplishment has greatly imperiled the separation of powers and constitutional restraint. While itg is quite possible, even likely, that the Trump presidency will be worse still, we cannot forget the incredible cost and horrific events of the Obama legacy.


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Immigration Bans and Executive Authority

Late last week, President Trump signed an executive order which blocks entry of aliens, regardless of visa status (i.e. student visas, tourist visas, etc), from seven countries for 60 days. It also blocks all refugees from coming to the United States for 120 days. There was some confusion for green card holders, many of whom were detained but ultimately allowed through customs. However, a federal judge forced the administration to cease deportations of visa holders already in the United States. Visa holders from the seven countries who have not made it to U.S. soil are still unable to board flights to America.

Obviously Trump’s ban on immigrants from certain countries is terrible politics and a terrible policy. The stories, like many from government interventions, write themselves:

For the president, who limited his comments on the ban to his Saturday afternoon remarks, the optics were not good. One of the first people detained, Hameed Khalid Darweesh, was an Iraqi interpreter who served the U.S. military for over a decade. (“What I do for this country? They put the cuffs on,” a tearful Darweesh told reporters at JFK after his release.) One Iranian woman barred from the United States, Samira Asgari, was coming to Harvard Medical School to work on a cure for tuberculosis. (“I was pretty excited to join @soumya_boston’s lab but denied boarding due to my Iranian nationality,” she tweeted. “Feeling safer?”) The media was flooded all day with tales of shocked families finding themselves locked out of the United States; if any of them were terrorists, they were awfully well-disguised.

Beyond the anecdotes, the policy doesn’t stand up to the simplest of critiques. The most obvious of which is that no terrorists from these countries have ever carried out a lethal attack in the United States. More generally, the policies we have put in place to fight terrorism are often worse than the imagined terrorist threat; the TSA is worthless and wastes tens of billions of dollars a year, the NSA has never stopped a single terrorist plot with its vast trove of data on Americans collected without a warrant, and the Iraq and Aghanistan wars cost trillions of dollars, thousands of lives, and we are still involved in these countries seven years after the death of Osama bin Laden. This isn’t even counting the fact that in the last 20 years, you were over 150 times more likely to die in a car accident, and eight times more like to be shot by a police officer than you were to be killed by a terrorist. David Bier goes into more reasons here, namely that this order helps the Islamic State and repudiates America’s history of taking refugees (not to mention immigration resrictions are bad for the economy!).

If we lived in parliamentary system, this would be about as far as we could take the argument, and if an irresponsible head of state wanted to enact terrible policy no matter the criticism, he or she could do that, as indeed, for example, the U.K. has done again and again.   However, in our supposedly constitutionally limited government, the next biggest issue is whether his ban is even legal.

Most of the work on this argument has already been done by David Bier of the Cato Institute (and a recent NY Times article) arguing against it and Andrew McCarthy at the National Review arguing for the executive order’s legality. Patterico at Redstate has a good follow-up but it’s fairly detailed and I’ll try to summarize it here.  8 U.S. Code § 1182 (f) gives the President sweeping powers to halt immigration in almost any form from almost any country for almost any reason. That law was passed in 1952, and is a perfect example of the problems of executive authority and Congressional deferral. However, in the Immigration and Nationality Act of 1965, Congress explicitly banned immigration discrimination on the basis of nationality, place of birth, and place of residence. As Bier writes, this legislation was passed explicitly as a rebuke to prior immigration policy, and thus it seems illegal for Trump to make sweeping bans on all immigrants from a specific country.

McCarthy makes a weird argument about executive authority that I find highly unconvincing, most of which is based on a quote by Thomas Jefferson (who was not at the 1787 Constitutional Convention), and which talks about “foreign business”, not immigration. Upon this quote, McCarthy seems to assume all immigration authority comes from the president, which is obviously untrue given all the statutory law passed by Congress that was discussed in the previous paragraph. As Patterico notes:

McCarthy also argues …it doesn’t matter what Congress says about who comes into the country because that’s up to the President.

This argument fails as an initial matter because (as Dan McLaughlin has pointed out) it is Congress, not the President, which has plenary power under the Constitution “to exclude aliens or prescribe the conditions for their entry into this country.” It can delegate a conditional exercise of that power, but if it prohibits that power from being exercised in a certain manner, the President cannot overrule Congress.

Getting back to those laws, McCarthy makes the case that the 1952 law empowering the president still remains, citing the 1980 revocation of Iranian visas. Bier has countered that there were many exceptions to this order, specifically humanitarian reasons, and many people continued to come into the country that year. Interestingly, Bier also points out that in the 1990s, there was litigation about country of origin bans concerning Vietnamese citizens. A law stating that Vietnamese who had fled to Hong Kong had to return before applying for American immigration visas was struck down (due to the ban on discrimination due to place of residence). McCarthy also argues that this is irrelevant because the Iranian ban and the current ban are national security concerns while the Vietnam law was not. Again to Patterico’s piece:

In essence, McCarthy is saying: even if the text says the President can’t discriminate on the basis of nationality or place of residence, that was designed to address nasty and mean discrimination by racist types, not good discrimination based on a desire to protect the country. McCarthy is asking us to ignore the text and look at the hearts of the legislators.

This is the same mushy and standardless sort of textual interpretation that leftists love to use when there is a clear textual provision they don’t like

Obviously, if we allow national security exceptions to a law, then all expansions of executive power are simply justified via national security, just as they always are.

Finally, McCarthy makes probably his best point on an Obama era immigration law, Section 1187 (a) (12), which governs the Visa Waiver program. In this law, Congress singled out certain countries where a person meeting certain nation of origin or residence requirements could have their documentation waived by the executive branch. Now Trump isn’t implementing this law, but McCarthy’s point is that Congress has passed a law that discriminates in ways prohibited by the 1965 statute. From Patterico again:

But that begs the question to be decided: does the President have authority to do this on his own? Please understand: I’m not saying Congress couldn’t undertake the actions Trump took in this order. I’m saying Congress could — but that the President can’t, alone, if Congress has already told him he can’t.

To add: McCarthy says that Congress never explicitly revoked the 1952 authority giving the president the power to ban any immigrants he wanted…but they also didn’t revoke the 1965 law stating there can be no discrimination on the basis of country. Congress can change it’s mind on these things, but the President can’t. If Trump’s power from the 1952 law remains in place, then his reduction of power from the 1965 law also remains in place, no matter what limited discrimination Congress made under Obama.

So what’s the bottom line? For one, there are too many laws in the United States. The U.S. Code is ridiculously complex, and we never repeal old laws. Authority that Congress passes to the President seems to just collect over time, leading to more and more dangerous powers that the President has, made even more dangerous when put in hands as dangerous and tiny as Trump’s. Additionally, this argument from Bier and Patterico looks good to me now, but it’ll ultimately come down to the ACLU and the government’s arguments in federal court. Hopefully, if the courts strike down Trump’s order he’ll cede defeat and not trigger a constitutional crisis. It’s both good that the system worked to check a badly made policy so quickly and terrifying that it only took 8 days for Trump’s executive reach to clash with a federal judge.

Links 2017-1-12

As we approach the time when free trade is the heretical advice rather than the obvious logical one, it’s time to brush up on our free trade arguments. Here’s an interesting one: would you ban new technology to save the jobs tied to the technology it replaces? Would you ban light bulbs to save candlemakers? Cars to save horsebreeders? It’s a ridiculous proposition to freeze the economy at a certain point in time. Well, there’s no economic difference between new technology and free trade. In fact, we can treat international trade as a fancy machine where we send corn away on a boat and the machine turns the corn into cars.  

And speaking of free trade, this is the economic modeling for why a tariff is unequivocally inefficient. One of the impacts of a tariff, by the way, is an increase in the market price of a good. Anyone saying that a tariff won’t have negative effects on consumers is just plain wrong.

The excellent open source encrypted messaging app Signal is so useful, it has to avoid having its application servers blacklisted by oppressive regimes. It uses a workaround of having encrypted connections through content delivery network, in this case, Google itself. Moxie Marlinspike, the creater of Signal says “Eventually disabling Signal starts to resemble disabling the internet.”

One of the biggest problems with Trump I pointed out last year was the total unknown of his policies. He keeps changing his mind on almost every issue, and when he does speak, he wanders aimlessly, using simplified language that is more blunt and less precise. Fitting right into this pattern, Trump has taken to Twitter for much of his communication, even since winning the election. Twitter is a short and imprecise tool for communication, and this New York Times article shows just how much uncertainty Trump creates with his tweets.

Related: Bill Perry is terrified of increased nuclear proliferation. The article is a little alarmist, but it’s worth remembering that nuclear war was a real threat just 30 years ago. It should not be taken for granted that nuclear war will never occur, and Trump seems the most likely of the post-Soviet presidents to get involved in a confrontation with a major nuclear power.

Scott Alexander reveals his ideal cabinet (and top advisers) if he were president. It’s not only remarkably better than Trump’s, it’s probably better than any cabinet and appointees we’ve ever had (Bernie Sanders notwithstanding). Highlights include: Alex Tabarrok as head of the FDA, Scott Sumner as Chairman of the Fed, Charles Murray as welfar czar, Peter Thiel as Commerce Secretary, and Elon Musk as both Secretary of Transportation and Energy.

Speaking of cabinets, George Will details just how out of touch soon-to-be-Attorney General Jeff Sessions is, recounting his 2015 defense of unlimited civil asset forfeiture, a procedure by which the government takes cash and property from civilians who have been convicted of no crime and therefore have no recourse or due process protections. Don’t buy into the story that all of Trump’s appointees are horrific and terrifying; there is a gradient of his cabinet appointments depending on their authoritarian tendencies and the importance of their department, and unfortunately Jeff Sessions as Attorney General is by far the most concerning.

Missed this earlier last year, and worth keeping in mind as BuzzFeed gets hammered this week over their publishing of an unverified dossier: apparently the FBI already has daily aerial surveillance flights over American cities. These seem to be for general investigative use, not vital national security issues: “But most of these government planes took the weekends off. The BuzzFeed News analysis found that surveillance flight time dropped more than 70% on Saturdays, Sundays, and federal holidays.” 

Speaking of BuzzFeed and the crisis of “fake news”, which itself may not even be anything compared the crisis of facts and truth itself, Nathan Robinson has an excellent take on the matter (very long read). With the lack of facts in the election, the media and Trump’s critics generally have to be twice as careful to rebuild trust in the very concept that objective truth exists and can be discussed in a political context.

Government regulations have hidden, unexpected costs. These regulations hurt people regardless of their political affiliations, as a Berkeley professor found out when trying to evict a tenant that refused to pay rent. California’s rather insane tenant laws mean that serial rent-cheaters can go from place to place staying rent free for months at a time.

I’ve often thought about the right ordering of presidents from best to worst, taking into account a libertarian, liberty-promoting approach. One difficulty is the non-comparability of presidents separated by centuries. However, this blog post from 2009 actually does a nice job of scoring the presidencies. I don’t agree with each one, but it’s a rough categorization that makes sense. It even gave me an additional appreciation for Ulysses Grant, who I figured was mostly president by the luck of being the general in charge when his army won the Civil War. Other highlights include William Henry Harrison scoring 11th, thus beating over three quarters of the competition despite only being in office for a month. I feel like I could have found more worse things on Andrew Jackson, and in general I feel like I agreed with the list more the closer I got the end.

Jeffrey Tucker at FEE has a nice article about the difference between spreading ideas and actual economic production of goods. His thesis is that we have much less control over the developing of ideas than we do of developing normal rivalrous goods. And since libertarians are pretty solid at grasping the idea that the production of goods cannot be controlled from the top down, we should also acknowledge that top-down approaches to developing ideas are even more preposterous, especially in the digital age of decentralized information. I’ve thought about this a fair amount considering I like I blogging but I’m well aware few people read this blog. The simplest way to restate Tucker’s point is that you have to have good ideas more than good distribution. I don’t know if that’s an accurate take, but certainly good ideas are the single most important part of spreading your ideas.

There’s a saying on the internet that “Democracy is two wolves and a lamb voting on what to eat for lunch”. The 2016 election is excellent demonstration of just how poorly democracy can fail, but what our all alternatives. How about Futarchy? This is Robin Hanson’s idea to improve public policy: “In futarchy, democracy would continue to say what we want, but betting markets would now say how to get it. That is, elected representatives would formally define and manage an after-the-fact measurement of national welfare, while market speculators would say which policies they expect to raise national welfare.” Let’s hold a referendum on it; those seem to work out.

Bitcoin has been on the rise in recent months. So have other cryptocurrencies. But rather than focus just the price of the cryptocurrency, why not look at the total market valuation of those currencies? Sure, you might have heard that Bitcoin was up to $1000 again recently, but did you know that its total market cap is ~$13 billion? At the very peak of the Bitcoin bubble in 2013, all Bitcoins together were valued around $13 billion, but only for a matter of days. This time Bitcoin has kept that valuation for over 3 weeks. With more markets and availability, Bitcoin is becoming a real alternative for people whose national currencies have failed them. 

Postlibertarian throwback: When Capitalism and the Internet Make Food Better. A reminder that the despite the ongoing horrors of government we are witnessing, the market is still busy providing better products and cheaper prices.


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