The Right to Be Let Alone

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It is the best of times for government snooping and surveillance.

It is the worst of times for privacy and the Fourth Amendment.

The surveillance state should be dismantled, and the right to be let alone should be restored as the glory of the Republic.

This paper explains why and how.

Why Privacy Matters

The right to be let alone from government snooping or surveillance is the most cherished right among civilized peoples.

Privacy encourages creativity and spontaneity. It facilitates growth, learning, and maturation through a process of trial and error without risk of embarrassment.

Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States, 277 U.S. 438 (1928) (dissenting opinion):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Privacy is a cornerstone of a Republic where the people censure government; government does not censure the people. Consider the following.

No person on paper is clean.

Citizens will refrain from exposing and criticizing government fraud, waste, abuse, or lawlessness if they fear the government will retaliate by disclosing or sharing negative or embarrassing information from dossiers assembled through indiscriminate surveillance. They will become docile — a great menace to freedom according to Justice Brandeis in Whitney v. California, 274 U.S. 357 (1927) (concurring opinion). Edward R. Murrow, the scourge of Senator Joseph McCarthy (R-WI) similarly observed: “A nation of sheep will beget a government of wolves.”

Privacy was the spark of the American Revolution.

The urgency of citizen scrutiny of government has heightened as the size of government has grown from a small acorn in 1790 with a budget of less than $10 million and a few employees to a giant oak in 2017 with a budget exceeding $4 trillion and millions of employees. Further, Congress has virtually ceased to exercise oversight because of institutional sloth and incompetence coupled with a craving to escape responsibility. The Pentagon alone cannot account for a staggering $3 trillion in expenditures. Congress has become an invertebrate branch, which has created a corresponding need for fearless citizen criticism of government.

Privacy was the spark of the American Revolution. In 1761, James Otis denounced British Writs of Assistance. They empowered every petty official to rummage through homes and businesses in search of contraband or smuggled goods. He amplified: “It is a power that places the liberty of every man in the hands of every petty officer.” John Adams chronicled: “Then and there the child of independence was born . . .”

In 1763, William Pitt the Elder spoke against an excise tax on cider to the British Parliament in words that thundered throughout the American colonies: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, — but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government.

The Fourth Amendment was ratified to enshrine the right to be let alone as a constitutional imperative. Its protections do not depend on the outcome of any election or the spasms of public opinion frightened by terrorist attacks. As World War II raged, Supreme Court Justice Robert Jackson sermonized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The Fourth Amendment intentionally creates barriers to law enforcement and a risk-free existence by delimiting the power of government to conduct searches and seizures that disturb privacy. It provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Accordingly, the government must ordinarily obtain a warrant from a neutral magistrate based on probable cause and particularized suspicion of crime before individual privacy may be upset. In circumstances in which a warrant is not constitutionally mandated, searches and seizures must nevertheless satisfy a “reasonableness” standard.

The Constitution was intended to endure for the ages. Its authors knew that unforeseen changes in technology or otherwise would require atextual interpretations to honor the Constitution’s purposes. They understood, like St. Paul in 2 Corinthians 3:6, that “the letter killeth, but the spirit giveth life.” Thus, Chief Justice John Marshall observed in McCulloch v. Maryland, 17 U.S. 316 (1819) that the Constitution “was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”

The Fourth Amendment was ratified to prevent governmental evil — even at the expense of handicapping law enforcement.

The Supreme Court has instructed that the Fourth Amendment should be interpreted to safeguard privacy expectations despite vast changes in government surveillance technologies and capabilities that are no less robust than the privacy expectations of the citizenry in 1791 when the Amendment was ratified.

In Kyllo v. United States, 533 U.S. 27 (2001), the Court held that the warrantless use of a thermal-imaging device aimed at a private home violated the Fourth Amendment. Writing for the majority, Justice Antonin Scalia amplified:

While it may be difficult to refine the Katz [reasonable expectation of privacy test] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

Emails or text messages in the Age of the Internet are the functional equivalent of letters in 1791, and should thus command the same protection under the Fourth Amendment. And as to the latter, Justice Stephen J. Field declared in Ex Parte Jackson, 96 U.S. 727 (1877):

The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter,— between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household.

Premium protection of privacy according to constitutional mandates does not mean weak government. Justice Jackson explained in West Virginia State Board of Education, supra:

Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government.

The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government, not private miscreants, criminal organizations, or non-state actors like al Qaeda. The industrial scale slaughters of the Canaanites and Amalekites chronicled in the Old Testament are emblematic. In more recent times, the Third Reich, the Soviet Union, and Communist China have been complicit in genocide or crimes against humanity that have killed up to 200 million. Unlike private parties or non-state actors, government enjoys a monopoly of legalized violence and the power to tax and to conscript, which facilitates repression on a vast scale. The Fourth Amendment was ratified to prevent this government evil — even at the expense of handicapping law enforcement.

The Constitution — including the Fourth Amendment — is premised on the belief that accepting the risk of being the victim of injustice is morally superior to risking complicity in it. Thus, the due process clause requires proof beyond a reasonable doubt and jury unanimity for a criminal conviction. That standard means some guilty persons will escape punishment and be released with a risk of recidivism. But it also means a diminished risk of convicting the innocent and implicating the entire society in injustice. Justice John Marshall Harlan explained in In re Winship, 397 U.S. 358 (1970) (concurring opinion): “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

Even with the reasonable doubt standard, an alarming number of innocent defendants are convicted. According to the Innocence Project, there have been 333 post-conviction DNA exonerations alone since 1989. Of that number, 20 had served time on death row. On average, each innocent defendant had served 14 years in prison.

It is probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons.

The Fourth Amendment’s reasonableness standard circumscribes government searches and seizures despite the impairment to effective law enforcement. The reasonableness standard is first cousin to the reasonable doubt standard in criminal prosecutions. It is founded on the philosophical principle that it is better to protect the right to be let alone when there is no government showing of a compelling need than to apprehend and punish all criminals. The Fourth Amendment knowingly accepts the risk that some criminals will escape detection that unfree peoples do not because it prefers liberty to a futile quest for a risk-free existence.

Investigations of crime through searches or seizures encroach on liberty irrespective of whether a criminal charge is forthcoming.

The target must retain an attorney at substantial expense to protect against false suspicions or accusations. The investigation, simpliciter, makes the target socially or professionally radioactive — leading to ostracism, the loss of income, family strife, or worse. In the Age of the Internet, the target’s reputation may be irreparably blemished. False and defamatory statements emerging from an investigation are impossible to scrub from the electronic grid. There are countless Richard Jewells of the world of less notoriety.

The percentage of investigations that lead nowhere and thus gratuitously invade privacy is unknown. But clues are available from the Federal Bureau of Investigation’s assessment data. From 2009–2011, the Bureau opened 42,888 assessments of persons or organizations seeking signs of terrorism or espionage. A database search In May 2011 showed that 41,056 of the assessments had been closed without result, and that 1,986 had progressed to preliminary or full investigations — a false positive rate of over 95%. During that period, 39,437 assessments were initiated seeking signs of ordinary criminal activity, and 36,044 had been closed without result, while 1,329 had progressed to preliminary or full investigations — a false positive rate approaching 97%.

The Supreme Court’s crabbed interpretations of the Fourth Amendment have made privacy subservient to highly speculative claims of law enforcement and national security.

It is thus probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons. No law awards them compensation for the government’s invasion of their privacy and probable permanent loss of a livelihood.

In light of these considerations, the Fourth Amendment or complementary federal or state statutes should prohibit any government search or seizure that materially encroaches on the right to be let alone unless the encroachment furthers a compelling government interest and does so with techniques least disturbing to privacy. Search warrants that satisfy the Fourth Amendment should ordinarily not be utilized unless there is probable cause to believe that very serious criminal activity is afoot, not trivial crimes like marijuana possession or use.

The Withering Away of Privacy

The right to privacy has withered since 1791.

Federal criminal prohibitions have proliferated from a handful in 1790 to thousands today. Each prohibition provides a new government justification for invading privacy in the name of law enforcement. A study by the Federalist Society found that by 2007 the United States Code contained more than 4,450 criminal offenses.

Further, a growing number of federal crimes impose strict liability with no mens rea. They justify investigations with no suspicion that the target acted with a guilty mind.

Additionally, the government began the dragnet collection of foreign intelligence as the United States changed from a republic to a global empire. Foreign intelligence is virtually limitless in scope and generally shielded from legal accountability through the Executive Branch’s invocation of state secrets.

Technology has advanced by leaps and bounds that enable ever-greater government encroachments on privacy, for instance, the interception, retention, and search of every phone or email communication at relatively modest cost.

Finally, the Supreme Court’s crabbed interpretations of the Fourth Amendment — including the third party doctrine — have made privacy subservient to highly speculative claims of law enforcement or national security.

The Proliferation of Federal Criminal Prohibitions. Under the Constitution, there are no federal common law crimes, as the Supreme Court declared in United States v. Hudson, 11 U.S. 32 (1812). Federal crimes are creatures of statutes. The first was the Crimes Act of 1790. It created but a handful of offenses, for instance, misprision of treason, piracy, or counterfeiting.

No Department of Justice or Federal Bureau of Investigation was then created for law enforcement, which was largely ad hoc in response to private complaints.

At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately.

In 1791, privacy was tightly safeguarded against federal intrusions. Yet public safety was not compromised. The federal government scrupulously respected privacy for nearly a century after its beginning. The Supreme Court initially confronted Fourth Amendment claims in Ex Parte Jackson, supra, and Boyd v. United States, 116 U.S. 616 (1886). During the previous decades, crime was not a political issue in a single federal election campaign for the House, Senate, or presidency.

The presidency of Theodore Roosevelt inaugurated the federal regulatory state with the Pure Food and Drug Act of 1906 and Hepburn Act of 1906. Then came the Harrison Narcotics Act of 1914, the Prohibition Era, and the New Deal. By 1940, then Attorney General Robert Jackson was warning:

What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes being unpopular with the predominant governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. (“The Federal Prosecutor,” address delivered by Robert H. Jackson, April 1, 1940)

During the 75 years that have elapsed since the Attorney General’s address, the problem of investigative or prosecutorial abuses which cripple privacy has intensified. At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately. Renowned attorney Harvey Silverglate authored Three Felonies A Day in 2009. It chronicles the octopus-like expansion of the federal criminal law and corresponding law enforcement abuses portended by Jackson.

At present, the Department of Justice budget approximates $30 billion annually, a sum which supports more than 100,000 law enforcement personnel.

Federal Strict Liability Offenses. The federal regulatory state features a growing number of strict liability or public welfare offenses in which an innocent mind is no defense. Violations of the federal wire fraud statute or the Marine Mammal Protection Act are illustrative. Wade Martin was convicted under the latter act for selling sea otters to a person whom he mistakenly believed was a native Alaskan.

These types of crimes were unknown when the Fourth Amendment was ratified. Justice Robert Jackson explained the strong common law presumption of an evil intent combined with an evil act to satisfy the threshold for criminality in Morissette v. United States, 342 U.S. 246 (1952):

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a “vicious will."

The growth of strict liability offenses in the regulatory state further lowers the barriers to the initiation of government investigations that encroach upon privacy.

Foreign Intelligence. With the post-World War II transformation of the United States into a global power and the Cold War, the President commenced the collection of foreign intelligence without warrants or congressional oversight based upon an unbounded interpretation of Article II. At present, pursuant to Executive Order 12333, the government gathers foreign intelligence on the President’s say-so alone both domestically and abroad. The definition of foreign intelligence is sweeping, i.e., “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”

Foreign intelligence is also collected by the President within the United States under the Foreign Intelligence Surveillance Act, as amended.

The volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Internet communications are intercepted, retained, and searched without probable cause to believe crime or international terrorism is afoot. The magnitude of citizen privacy invaded under the Executive Order is unknown because its implementation is cloaked in secrecy, and the government cannot be trusted to volunteer the truth. The Director of National Intelligence, James Clapper, for instance, lied to the Senate Intelligence Committee under oath in denying that the National Security Agency was collecting data against millions of Americans.

Making reasonable inferences from the disclosures of Edward Snowden, the volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.

Technology. The development of technology since the ratification of the Bill of Rights has armed the government with unprecedented tools or instruments for invading privacy. They include wiretapping, surveillance drones, electronic surveillance, DNA collection, facial recognition equipment, thermal-imaging instruments, and instantaneous, inexpensive retrieval of information from vast databases. Supreme Court Justice Sonia Sotomayor amplified in United States v. Jones, 565 U.S. __ (2012) (concurring opinion):

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility,” Illinois v. Lidster, 540 U.S. 419, 426 (2004).

Supreme Court Decisions. The law is generally backward-looking and tardy in responding to new technology. Nearly forty years elapsed before the Supreme Court in Katz v. United States, 389 U.S. 347 (1967) corrected its erroneous holding in Olmstead v. United States, supra, that conversations were outside the protection of the Fourth Amendment.

Katz established a reasonable expectation of privacy standard to inform Fourth Amendment interpretations. But the Court soon rendered the standard toothless in a pair of decisions divorced from reality.

In United States v. Miller, 425 U.S. 435 (1976), the Court held that the Fourth Amendment is inapplicable to a customer’s bank records that are subpoenaed by the government for the purposes of criminal prosecution. Writing for the Court, Justice Lewis Powell explained:

The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751–752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.

In Smith v. Maryland, 442 U.S. 735 (1979), the Court similarly held that a phone subscriber had no reasonable expectation of privacy in his dialed phone numbers because they were knowingly shared with the phone company. Thus, the Fourth Amendment did not apply to the government’s suspicion-less use of pen registers in the investigation of crime. Justice Harry Blackmun amplified:

When he used his phone, [the subscriber] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

Both Miller and Smith are wildly misconceived. Everyone possesses a reasonable expectation that sensitive or confidential information shared with intimates or businesses for benign, professional, or narrow purposes will not be provided to the government. It has the motive and ability to imprison or otherwise harm you. Internet users share email content with internet service providers without any expectation that the National Security Agency will be privy to the communication. The same can be said, for text messages known to phone companies in the ordinary course of business. But under Miller and Smith, the Fourth Amendment leaves unprotected the contents of every email or text message communication in the United States. The NSA is defending the constitutionality of its bulk collection, retention, and search of telephony metadata regarding every phone call in the United States by relying on Miller and Smith.

Restoring the Right to Be Let Alone

Congress should not tarry in the enactment of legislation that rolls back the staggering encroachments on the right to be let alone that have transpired since the ratification of the Fourth Amendment in 1791.

Atop the agenda should be a Privacy Protection Restoration Act (PPRA), to provide as follows:

A person may assert as a defense in any proceeding alleging noncompliance with a search warrant, subpoena, national security letter, or other government order that compliance would materially encroach on the privacy of that person or a third party unless the government proves by a preponderance of the evidence that compliance is necessary to advance a compelling government interest in law enforcement, and, that the technique for collecting the information minimally encroaches on privacy.

In determining whether compliance with a search warrant, subpoena, national security letter, or other government order would advance a compelling government interest, the court shall consider, among other things, the seriousness of the crime under investigation and documented proof that the investigatory technique to be used in obtaining the information has been substantially effective historically in preventing, deterring, or punishing crime or international terrorism.

The principles behind the PPRA should inform deliberations on pending legislation to update the obsolete Electronic Communications Privacy Act of 1986 (ECPA).

The Email Privacy Act would require the government to obtain a warrant based on probable cause to access the content of any email from an internet service provider irrespective of the email’s age. At present, ECPA restricts protection of email content to communications that have been stored for 180 days or less. That limit was held unconstitutional in United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010). Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Globalization was in its infancy when ECPA was enacted. Most Internet communications and storage took place within the United States. The probability of interjurisdictional conflicts over stored emails outside the United States was more hypothetical than real. Congress predictably remained enigmatic on ECPA’s application to electronic records stored in foreign lands.

Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.

Three decades later, that opaqueness is unsatisfactory. Law enforcement officials in one country commonly seek access to records in another country. Whose privacy laws apply? The issue has jumped to the forefront because of United States v. Microsoft. In that case, the Department of Justice sought to compel Microsoft to produce emails located on servers in Dublin, Ireland. But the United States Court of Appeals denied that the Storage Communications Act granted that authority. The case might reach the United States Supreme Court.

During the last Congress, a bill known as LEADS would have addressed the issue in the following way.

The government would be authorized to use a warrant to compel production of electronic communications stored abroad if it concerned a United States citizen. There is nothing irregular about extraterritorial application of United States laws to the activities of its citizens. Congress, for instance, has criminalized foreign travel to engage in illicit sex (18 U.S.C. 2423).

The LEADS authorization, nevertheless, would have been worrisome. Reciprocity is the norm on the international stage. If the United States can gain access to information about United States persons stored in China or Russia, we would be required as a matter of comity to permit those countries to obtain access to electronic information about their citizens stored in the United States. Since both China and Russia are lawless nations, their governments can be expected to employ this power to persecute dissidents or otherwise violate human rights. In other words, LEADS’ authorization to use search warrants to retrieve information about United States citizens stored abroad may be a cure worse than the disease.

How important are such search warrants to law enforcement?

At present, we are clueless. Such warrants may be vital or marginal to the investigation of serious crimes. A legislative precedent should not be created that would assist persecution of Chinese or Russian dissidents unless it satisfies a very high threshold of urgency.

We cannot take the government’s law enforcement claims at face value. The government insisted that three counterterrorism laws that have slumbered from birth were imperative: the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act. They have never been used.

Authoritarian governments can be expected to employ reciprocal power to persecute dissidents or otherwise violate human rights.

Congress should thus prohibit the use of search warrants extraterritorially unless the Executive provides hard, nonspeculative evidence that the authority is necessary in a significant number of cases to prosecute significant crimes. The privacy of United States citizens should not be compromised absent demonstration of a compelling government need.

LEADS would have authorized an internet service provider to resist a search warrant’s use extraterritorially by proving that compliance would violate the laws of a foreign country to the issuing tribunal. But United States courts are amateurs in the interpretation of foreign laws. They would be prone to error absent expert testimony. And years could be consumed in litigating appeals of trial court decisions, which frequently would prove fatal to the investigation. The LEADS game for extraterritorial use of search warrants is probably not worth the candle.

Unless much more convincing evidence of law enforcement need is forthcoming, legislation should prohibit the use of search warrants extraterritorially to obtain electronic communications about United States citizens. That would avoid setting a precedent that would assist China, Russia, or other lawless nations in persecuting their dissidents without material offsetting benefits to United States law enforcement.

The United States would not go dark abroad without the use of search warrants extraterritorially. We have more than 50 Mutual Legal Assistance Treaties with other countries that facilitate the voluntary sharing of evidence and information in criminal cases or other government investigations. The MLAT process can be employed whether or not the information sought concerns a citizen or foreigner. It satisfies customary standards of international comity and avoids interjurisdictional conflicts. But new legislation can make the MLAT process more efficient and transparent.

Conclusion

Privacy is the cornerstone of a flourishing democratic dispensation that celebrates a liberty-centered universe. It has withered over the years succumbing to inflated claims of law enforcement or national security.

Congress should restore privacy as the crown jewel of the nation by enacting a Privacy Protection Restoration Act to impose a heavy burden on the government to justify every material encroachment on privacy. If Congress does nothing, privacy is destined to crucifixion on a national security cross.




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Whose Phone Is It, Anyway?

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Some people think — and I wonder about this myself — that it would be my duty as a libertarian to side with Apple in its contest with the United States government about the question of whether the company may justly be compelled to assist the government in opening the cellphone of the (dead) San Bernardino terrorist Syed Farook. The government is looking for terrorist associates of Farook who may have left traces in the guts of his phone.

The legal issues and history have been ably summarized by Gabriel Malor, on the website of the libertarian-conservative Federalist Society. He concludes for the government. But what is chiefly of interest to libertarians is the question of whether the government has a moral right to invade the privacy of Farook’s phone, and by possible implication millions of other phones, such as the one sitting beside me as I write this Reflection.

The government hired and maintained in its employ a person who, not without previous indication, turned out to be an activist for a genocidal foreign state.

For me, there are real claims to privacy, and there are spurious ones. Much neglected in the discussion of Mr. Farook’s phone is an issue mentioned by Sen. Susan Collins (R-ME): “The phone was not even owned by the terrorists; it was owned by the county for whom he worked, and the county has given the FBI permission to search the contents of the phone.” Apple concurs on the issue of the phone’s ownership.

So while being anxious about the government’s creating a precedent by forcing a company to assist it in extracting information from a cellphone, perhaps we should also be laughing at the joke: the government hired and maintained in its employ a person who, not without previous indication, turned out to be an activist for a genocidal foreign state; the government gave him a cellphone to use in its service; and the government lost track of the contents of his cellphone, perhaps with future hideous results.

Only one thing is lacking in this picture: the government’s usual claim that the data it “owns” must be retained as a deep secret in the bowels of its HR departments, so that the privacy of its employees can be maintained in primordial sanctity. Today it is a private organization that is making the meretricious claim to privacy.

Libertarian anarchists will disagree, but here’s the story as it appears to me. If there’s a fire in my neighborhood, the government has a legitimate power to make me open a gate so the fire engines can get through. It also has a legitimate power to enforce a warrant to enter someone’s property, looking for the source of the neighborhood’s fires. In this case, the gate is Apple’s, and the property is — the government’s!




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Mind the Gap

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“Capitalism automatically generates arbitrary and unsustainable inequalities that radically undermine democratic societies.” — Thomas Piketty, Capital in the 21st Century

French professor Thomas Piketty’s new book — ranked #1 on Amazon and the New York Times — is a thick volume with the same title as Karl Marx’s 1867 magnum opus, Capital. Many commentators have noted the Marxist tone — the author cites Marx more than any other economist — but that’s a distraction.

The author discusses capital and economic growth, and recommends a levy on capital, but the primary focus of the book is inequality. In mind-numbing minutiae of data from Europe and the United Staes, Piketty details how inequality of income and wealth have ebbed and flowed over the past 200 years before increasing at an “alarming” rate in the 21st century. Because of his demonstrated expertise, his scholarship and policy recommendations (sharply higher progressive taxes and a universal wealth tax) will be taken seriously by academics and government officials. Critics would be wise to address the issues he raises rather than simply to dismiss him as a French polemicist or the “new Marx.”

According to his research, inequality grows naturally under unfettered capitalism except during times of war and depression. “To a large extent, it was the chaos of war, with its attendant economic and political shocks, that reduced inequality in the twentieth century” (p. 275, cf. 471) Otherwise, he contends, there is a natural tendency for market-friendly economies to experience an increasing concentration of wealth. His research shows that, with the exception of 1914-45, the rate of return on property and investments has consistently been higher than the rate of economic growth. He predicts that, barring another war or depression, wealth will continue to concentrate into the top brackets, and inherited wealth will grow faster with an aging population and inevitable slower growth rates, which he regards as “potentially terrifying” and socially “destabilizing.”

If market-generated inequality is the price we pay to eliminate poverty, I’m all in favor.

His proposal? Investing in education and technical training will help, but won’t be enough to counter growing inequality. The “right solution” is a progressive income tax up to 80% and a wealth tax up to 10%. He is convinced that these confiscatory rates won’t kill the motor of economic growth.

One of the biggest challenges for egalitarians like Piketty is to define what they mean by an “ideal” distribution of income and wealth. Is there a “natural” equilibrium of income distribution? This is an age-old question that has yet to be resolved. I raised it in a chapter in “Economics on Trial” in 1991, where I quoted Paul Samuelson in his famous textbook, “The most efficient economy in the world may produce a distribution of wages and property that would offend even the staunchest defender of free markets.”

But by what measure does one determine whether a nation’s income distribution is “offensive” or “terrifying”? In the past, the Gini ratio or coefficient has been used. It is a single number that varies between 0 and 1. If 0, it means that everyone earns the same amount; if 1, it means that one person earns all the income and the rest earn nothing. Neither one is ideal. Suppose everyone earns the same wage or salary. Perfect equality sounds wonderful until you realize that no economy could function efficiently that way. How you could hire anyone else to work for you if you had to pay them the same amount you earn?

A wealth tax destroys a fundamental sacred right of mankind — the right to be left alone.

Even social democrats William Baumol and Alan Blinder warned in their popular economics textbook, “What would happen if we tried to achieve perfect equality by putting a 100% income tax on all workers and then divide the receipts equally among the population? No one would have any incentive to work, to invest, to take risks, or to do anything else to earn money, because the rewards for all such activities would disappear.”

So if a Gini ratio of 0 is bad, why is a movement toward 0 (via a progressive income tax) good? It makes no sense.

Piketty wisely avoids the use of the Gini ratios in his work. Instead he divides income earners into three general categories, the wealthy (top 10% income earners), the middle class (40%), and the rest (50%), and tracks how they fare over the long term.

But what is the ideal income distribution? It’s a chimera. The best Piketty and his egalitarian levelers can do is complain that inequality is getting worse, that the distribution of income is unfair and often unrelated to productivity or merit (pp. 334–5), and therefore should be taxed away. But they can’t point to any ideal or natural distribution, other than perhaps some vague Belle Époque of equality and opportunity (celebrated in France between 1890 and 1914).

Piketty names Simon Kuznets, the 20th century Russian-American economist who invented national income statistics like GDP, as his primary antagonist. He credits Kuznets with the pro-market stance that capitalist development tends to reduce income inequality over time. But actually it was Adam Smith who advocated this concept two centuries earlier. In the Wealth of Nations, Smith contended that his “system of natural liberty” would result in “universal opulence which extends itself to the lowest ranks of the people.”

Not only would the rich get richer under unfettered enterprise, but so would the poor. In fact, according to Smith and his followers, the poor catch up to the rich, and inequality is sharply reduced under a liberal economic system without a progressive tax or welfare state. The empirical work of Stanley Libergott, and later Michael Cox, demonstrates that through the competitive efforts of entrepreneurs, workers, and capitalists, virtually all American consumers have been able to change an uncertain and often cruel world into a more pleasant and convenient place to live and work. A typical homestead in 1900 had no central heating, electricity, refrigeration, flush toilets, or even running water. But by 1970, before the welfare state really got started, a large majority of poor people benefited from these goods and services. The rich had all these things at first — cars, electricity, indoor plumbing, air conditioning — but now even the poor enjoy these benefits and thus rose out of poverty.

Piketty and other egalitarians make their case that inequality of income is growing since the Great Recession, and they may well be correct. But what if goods and services, what money can buy, becomes a criteria for inequality? The results might be quite different. Today even my poor neighbors in Yonkers have smartphones, just like the rich. While every spring the 1% attend the Milken Institute Conference in LA that costs $7,000 or more to attend; the 99% can watch the entire proceedings on video on the Internet a few days later — for free. The 1% can go to the Super Bowl for entertainment; the 99% gather around with their buddies and watch it on an widescreen HD television. Who is better entertained?

Contrary to Piketty’s claim, it’s good that capital grows faster than income, because that means people are increasing their savings rate.

Piketty & Co. claim that only the elite can go to the top schools in the country, but ignore the incredible revolution in online education, where anyone from anywhere in the world can take a course in engineering, physics, or literature from Stanford, MIT, or Harvard for a few thousand dollars, or in some cases, for absolutely nothing.

How do income statistics measure that kind of equal access? They can’t. Andrew Carnegie said it best, “Capitalism is about turning luxuries into necessities.” If that’s what capital and capitalism does, we need to tax it less, not more.

A certain amount of inequality is a natural outcome of the marketplace. As John Maynard Keynes himself wrote in the Economic Consequences of the Peace (1920), “In fact, it was precisely the inequality of the distribution of wealth which made possible those vast accumulations of fixed wealth of and of capital improvements which distinguished that age [the 19th century] from all others.”

A better measure of wellbeing is the changes in the absolute real level of income for the poor and middle classes. If the average working poor saw their real income (after inflation) double or triple in the United States, that would mean lifting themselves out of poverty. That would mean a lot more to them than the fortunes of the 1%. Even John Kenneth Galbraith recognized that higher real growth for the working class was what really mattered when he said in The Affluent Society (1959), “It is the increase in output in recent decades, not the redistribution of income, which has brought the great material increase, the well-being of the average man.”

Political philosopher James Rawls argued in his Theory of Justice (1971) that the most important measure of social welfare is not the distribution of income but how the lowest 10% perform. James Gwartney and other authors of the annual Economic Freedom Index have shown that the poorest 10% of the world’s population earn more income when they adopt institutions favoring economic freedom. Economic freedom also reduces infant mortality, the incidence of child labor, black markets, and corruption by public officials, while increasing adult literacy, life expectancy, and civil liberties. If market-generated inequality is the price we pay to eliminate poverty, I’m all in favor.

I have reservations about Piketty’s claim that “Once a fortune is established, the capital grows according to a dynamic of its own, and it can continue to grow at a rapid pace for decades simply because of its size.” To prove his point, he selects members of the Forbes billionaires list to show that wealth always grows faster than the average income earner. He repeatedly refers to the growing fortunes of Bill Gates in the United States and Liliane Bettencourt, heiress of L’Oreal, the cosmetics firm.

Come again?

I guess he hasn’t heard of the dozens of wealthy people who lost their fortunes, like the Vanderbilts, or to use a recent example, Eike Batista, the Brazilian businessman who just two years ago was the 7th wealthiest man in the world, worth $30 billion, and now is almost bankrupt.

Piketty conveniently ignores the fact that most high-performing mutual funds eventually stop beating the market and even underperform. Take a look at the Forbes “Honor Roll” of outstanding mutual funds. Today’s list is almost entirely different from the list of 15 or 20 years ago. In our business we call it “reversion to the mean,” and it happens all the time.

Prof. Piketty seems to have forgotten a major theme of Marx and later Joseph Schumpeter, that capitalism is a dynamic model of creative destruction. Today’s winners are often tomorrow’s losers.

IBM used to dominate the computer business; now Apple does. Citibank used to be the country’s largest bank. Now it’s Chase. Sears Roebuck used to be the largest retail store. Now it’s Wal-Mart. GM used to be the biggest car manufacturer. Now it’s Toyota. And the Rockefellers used to be the wealthiest family. Now it’s the Waltons, who a generation ago were dirt poor.

Piketty is no communist and is certainly not as radical as Marx in his predictions or policy recommendations. Many call him “Marx Lite.” He doesn’t advocate abolishing money and the traditional family, confiscating all private property, or nationalizing all the industries. But he’s plenty radical in his soak-the-rich schemes: a punitive 80% tax on incomes above $500,000 or so, and a progressive global tax on capital with an annual levy between 0.1% and 10% on the greatest fortunes.

There are three major drawbacks to Piketty’s proposed tax on wealth or capital.

First, it violates the most fundamental principle of taxation, the benefit principle. Also known as the accountability or “user pay” principle, taxation is justified as a payment for benefits or services rendered. The basic idea is that if you buy a good or use a service, you should pay for it. This approach encourages efficiency and accountability. In the case of taxes, if you benefit from a government service (police, infrastructure, utilities, defense, etc.), you should pay for it. The more you benefit, the more you pay. In general, most economists agree that wealthier people and big businesses benefit more from government services (protection of their property) and should therefore pay more. A flat personal or corporate income tax would fit the bill. But a tax on capital (or even a progressive income tax) is not necessarily connected to benefits from government services — it’s just a way to forcibly redistribute funds from rich to poor and in that sense is an example of legal theft and tyranny of the majority.

Second, a wealth tax destroys a fundamental sacred right of mankind — financial privacy and the right to be left alone. An income tax is bad enough. But a wealth tax is worse. It requires every citizen to list all their assets, which means no secret stash of gold and silver coins, diamonds, art work, or bearer bonds. Suddenly financial privacy as guaranteed by the Fourth Amendment becomes illegal and an underground black market activity.

Third, a wealth tax is a tax on capital, the key to economic growth. The worst crime of Piketty’s vulgar capitalism is his failure to understand the positive role of capital in advancing the standard of living in all the world.

To create new products and services and raise economic performance, a nation needs capital, lots of it. Contrary to Piketty’s claim, it’s good that capital grows faster than income, because that means people are increasing their savings rate. The only time capital declines is during war and depression, when capital is destroyed.

He blames the increase in inequality to low growth rates, when, says, the economic growth rate falls below the return on capital. The solution isn’t to tax capital, but to increase economic growth via tax cuts, deregulation, better training and education and productivity, and free trade.

Even Keynes understood the value of capital investment, and the need to keep it growing. In his Economic Consequences of the Peace, Keynes compared capital to a cake that should never be eaten. “The virtue of the cake was that it was never to be consumed, neither by you nor by your children after you.”

What country has advanced the most since World War II? Hong Kong, which has no tax on interest, dividends, or capital.

 

If the capital “cake” is the source of economic growth and a higher standard of living, we want to do everything we can to encourage capital accumulation. Make the cake bigger and there will be plenty to go around for everyone. This is why increasing corporate profits is good — it means more money to pay workers. Studies show that companies with higher profit margins tend to pay their workers more. Remember the Henry Ford $5 a day story of 1914?

If anything, we should reduce taxes on capital gains, interest, and dividends, and encourage people to save more and thus increase the pool of available capital and entrepreneurial activity. A progressive tax on high-income earners is a tax on capital. An inheritance tax is a tax on capital. A tax on interest, dividends, and capital gains is a tax on capital. By overtaxing capital, estates, and the income of our wealthiest people, including heirs to fortunes, we are selling our country and our nation short. There’s no telling how high our standard of living could be if we adopted a low-tax policy. What country has advanced the most since World War II? Hong Kong, which has no tax on interest, dividends, or capital.

Hopefully Mr. Piketty will see the error of his ways and write a sequel called “The Wealth of Nations for the 21st Century,” and will quote Adam Smith instead of Karl Marx. The great Scottish economist Adam Smith once said, “Little else is required to carry a state from the lowest barbarism to the highest degree of opulence but peace, easy taxes, and a tolerable administration of justice.” Or per haps he will quote this passage: “To prohibit a great people….from making all that they can of every part of their own produce, or from employing their stock and industry in the way that they judge most advantageous to themselves, is a manifest violation of the most sacred rights of mankind.”


Editor's Note: Review of "Capital in the Twenty-First Century," by Thomas Piketty, translated by Arthur Goldhammer. Belknap Press, 2014.



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The Pharaohs of the Current Dynasty

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The thing that interests me most about the intelligence scandals is the revelation of how amateurish the people who run our Great National Institutions seem to be.

I had assumed that the government was doing exactly what it has been revealed to be doing — getting everyone’s telephone records. I had assumed that any serious terrorist would assume the same. But if Edward Snowden was able to “reveal” the taking of this super-secret information, how many other people could reveal the same, or more?

Snowden is a badly educated young man who in his early twenties began a meteoric ascent through various spy agencies. Either the government’s secrets are so massive and take so many hands to manage, or the government is so ridiculously bad at contracting with people to take care of them, that the mighty inwards of the government’s self-knowledge end up in the grasp of Edward Snowden and the like. The same could be said, and more, about Bradley (Bradass87) Manning, who appears to have been put in a job where he dealt with military secrets because he was so outrageously unqualified for any other job.

Should I now mention some dramatis personae of other current scandals — Lois Lerner, Susan Rice, Kathleen Sebelius, Eric Holder? Qualified to handle secrets? They’re not even qualified to handle the secret of their own incompetence.

Now we have FBI Director Robert Swan Mueller, a 12-year veteran in his job, who received, a week in advance, a list of questions that he would be asked by Rep. Jason Chaffetz, but who on June 13 repeatedly assured Chaffetz’s congressional committee that he didn’t know anything about anything, finally apologizing, not very contritely, for failing to do his “homework.” Tell me, what else does the guy have to do?

If you’re like me, you grew up thinking of the FBI, the CIA, the NSA — anything with three initials — as a monument to strong organization. They were cunning; they were tricky; they might be malevolent; but they were tightly and cleverly administered. They were places where people who looked like David Niven, men who knew the world, subtly schemed to outwit their enemies. As for the US military, they were so hard-assed that they would never even consider hiring a person like me. And they still wouldn’t. But they trained Bradass87 as an intelligence analyst.

The image that now comes to mind is about as far from David Niven as you could get. It’s General James Clapper (USAF, rtd.), current director of national intelligence — the stereotyped representation of a befuddled, forehead-rubbing, double-talking academic bureaucrat, a man who doesn’t seem to understand what he himself is saying, much less understand the world. With people like this posing as pharaohs, what must the rest of the human pyramid be like?




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Mittimal Damage

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After being badgered incessantly by Gingrich, Perry, and Santorum, “vulture capitalist” Romney finally released his tax filings. We finally got to see what dirt was being covered up in his returns.

And the dirt was — nothing!

The press sifted through the 500 plus pages of Romney’s 2010 filing (and his projected filing for 2011), desperately looking for something to hit him with, and Romney came out totally clean. The media mission was to find new material that their guy Obama could use to bash Romney, but the mission was an abject failure.

True, the released material shows Romney to be a very rich man. But the filings only confirm what anybody could have found by Google-searching the dude and reading his Wiki entry, to wit, that he is worth around a quarter of a billion bucks. Listen, don’t get me wrong: I would love to have that kind of scratch. But it doesn’t put the man on the Forbes 400 Richest Americans list — he’s nowhere as wealthy as such media-darling leftist billionaires as Warren Buffett and George Soros.

Progressives are cheap when it comes to spending their own money to help others. They are generous only with other people’s money.

To be precise, in 2010 Romney earned $21.7 million, of which $12.6 million was capital gains, $3.3 million taxable interest, $4.9 million dividend income, and the remaining million or so money coming from various business gains, refunds, and speaking fees. Romney gave a whopping $3 million to charity — about 14% of his income.

Taxes on cap gains, dividends, and interest rates are a flat 15%, and charitable donations are quite legally deductible — which explains why he “only” paid about $3 million in taxes (about a 14% effective tax rate).

In short, he legitimately minimized his taxes, and paid no more than he was legally required to. This puts him in the same boat as the rest of us, Obama and Biden (and Buffett and Soros) included. I confess that I try to minimize my taxes legally. I never — repeat, never — pay more than the law requires, and I have nowhere near Romney’s tax burden.

The mainstream media was reduced to nitpicking. It turns out, for example, that Romney — whose portfolio is in a blind trust, please note, so invests without his knowledge or control — had small investments in Swiss and Cayman Island accounts. All quite legal if declared to the government — and it was.

Of his generous charitable giving, half of it went to the Mormon church, and the rest to a variety of charities, including one for researching MS (an ailment that afflicts his wife).

His projected 2011 filing, which he has promised to release in April when it is filed, shows similar income, charitable outlays, and tax rate.

There is no doubt that Obama will use as much of this as he can to hammer Romney in the fall, assuming that Romney is the Republican nominee, which I regard as virtually certain. But there is little ammo here.

Indeed, Romney’s lavish charitable giving actually underscores Obama’s cheapness when it comes to charitable giving. Compare the nearly 14% of his income ($3,000,000) that Romney gave, to what the Obamas did: from 2000 through 2004, they gave about 1% to charity (or less than $11,000), and in 2007 they gave 5.7% (or about $240,000). Even more tight-fisted was VP Joe Biden, who averaged a pathetic 0.3% (a truly risible $349) in annual charitable giving in the decade before he became vice president, and not much more since. Last year, Biden gave 1.4% ($5,300) to charity. Truly nothing compared to Romney.

The national average for giving is about 5%.

This illustrates the thesis of Arthur Brook’s estimable Who Really Cares?, a book I reviewed for these pages some time back (March 2009, 43–6): the progressives are cheap when it comes to spending their own money to help others. They are generous only with other people’s money.

Even the 14% tax rate that Romney enjoys is hard to use against him. Remember, the John Kerry household paid 13%, and the Democrats had no problem voting for him as their nominee. And for Obama to push the capital gains and dividend rates back up is for him to risk a major downturn on the stock market, as well as in the lavish support he is getting from his billionaire buddies. That could cost him the election.

In the end, after relentless attacks by Gingrich, Perry, and Santorum, all that has been revealed about Romney is that he legally and ethically earned a large amount of money, paid his taxes, and is a devout member of his church. In short, what is known now is what everybody knew all along.

Given that Obama has few accomplishments he can run on, we can also expect from him what we knew all along. His likely $2 billion reelection campaign (the $1 billion his campaign will have to spend, and the $1 billion that will be spent by groups that support him) will be entirely negative. And it will be as repetitive as it will be negative. It will simply repeat that Romney is rich, rich, rich! And he is white, white, white! And he is Mormon, Mormon, Mormon!

I am weary already.




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What's in Your Wallet?

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Am I the only one troubled by so-called loyalty cards — those wallet-fattening, discount-generating, grocery store-checkout minor irritants? When the cards were first introduced at my local Safeway I was urged to sign up, with the slogan, “The savings are in the card!”

Well, I was skeptical, but I decided to look into it. Right from the start, I was turned off by the information required on the application. It also seemed to me that — as The Economist pointed out in its November 5 issue — the expense of setting up and running rewards programs increases a retailer’s overhead. So I asked the attendant (usually busy manning a checkout till, but now temporarily signing up rewards card customers instead) how increased overhead could generate discounts?She stared at me blankly.

One chief executive from a Canadian firm that runs a card scheme explains, “The real value-added (from loyalty cards) is the data.” As The Economist further elaborates, “By cleverly using the information collected when customers’ cards are swiped at checkouts, the companies can offer them well-targeted discounts. Even small shifts in buying habits, multiplied by very large numbers of customers, can provide a welcome boost to profits.”

I’m not convinced. And neither is Wal-Mart, the world’s largest retailer, which proclaims (through Asda, its British subsidiary): “No Clubcard. No gimmicks. Just lower prices every day.”

Unwilling to sign up at Safeway, I switched to buying groceries at Albertson’s, which at the time had no loyalty cards. But it wasn’t long before both Albertson’s and Fry’s (Kroger’s) — the only other alternatives in Prescott, my home town — also jumped on the bandwagon. What to do?

Club cards come in two forms: a credit card-sized rendition and a key chain-tag mini-card. One day, through sheer luck, I found a dropped mini-card in the Albertson’s parking lot. Voila! Now I could cash in on discounts without revealing personal information.

On my next trip to the grocery store, my favorite checkout gal noticed I’d acquired a loyalty card. She kidded me about capitulating. I told her I’d found the card. So she asked me what the big deal was. I told her I was very skeptical about the whole card concept, explaining that I couldn’t understand how additional overhead could generate discounts, and that I objected to providing personal data and purchasing habits. I summed it up by saying, “Adolf Hitler would have loved to find out who was buying kosher food.”

She responded diplomatically: “I never thought of it that way.”

Then, just as suddenly as it had adopted them, Albertson’s dropped its loyalty card program in Arizona. However, they continue the scheme in Nevada — a sure sign of corporate ambivalence.

Somewhat defeating the purpose of the program is another fast-spreading policy among card issuers: complementary card swiping. Many chains, including ones in Canada, now authorize checkout attendants to swipe loyalty cards for tourists, visitors, and folks who forget their card. All a customer needs to do is ask.

When Wal-Mart finally opened up a supercenter in Prescott, it was a mixed blessing. The city council threatened to use eminent domain to evict recalcitrant lease holders from their property to make room for the Wal-Mart. One council member condemned the abuse of eminent domain but justified the council’s actions by rationalizing that eminent domain would not actually be used — just threatened.

But that’s another story. At least now Prescott has some card-free choices.




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