Free Markets, Free People

CATO Institute

Cell Phone Records: “No Reasonable Expectation Of Privacy”

Is there an “expectation of privacy” pertaining to your cell phone’s records?  Or any records held by a third party provider?

The Obama administration is arguing that there isn’t:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

In other words, since the provider keeps the records (not you) as mandated by law, those records belong to them and thus should be open to government inspection without permission from you or a court.

Now, there’s an argument to be made in terms of law enforcement needs. For instance, a series of bank robberies took place over a wide area. Combing the records for cell towers in the area of each robbery allowed law enforcement to narrow it down to two cell phone users who made calls in each area just before the robberies. Good police work. But shouldn’t they have to go before a judge and justify their desire to look at these records? I’m not sure they didn’t, but essentially the Justice Department is trying to argue that such a justification and court order should be unnecessary.

Ironic from an administration that was so strident about opposing warrantless wiretaps.

The question is, should those records be considered private? Jim Harper argues at Cato that those records are the modern equivalent of “papers and effects” protected by the 4th Amendment and that the court has misinterpreted that since 1967.

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

I agree with Harper.  Technology has changed how those records are kept, but they are still private records between the provider and the subscriber – especially since, for the most part, much of the data recorded is gathered without our permission. What I see in the case by the Obama administration is another attempt at government data mining – domestic intelligence – something which Democrats and libertarians were adamantly against when various schemes were uncovered during the Bush administration.

This attempt is subtly different. Instead of just assuming that there is no expectation of privacy and going ahead and demanding the information, the administration is attempting to have the court okay it first. But the result will be the same – unimpeded access by government to your location at any time (as long as you have a cell phone). It is but a short step from there to do what Harper outlines: data mining from various other providers based on the same argument and with this case as precedence. Result: a profile of you containing private data about your movements, spending habits, places visited on the internet, etc that are really none of the government’s business.

Of course, we all know that Big Brother government would never misuse or abuse this information, don’t we?

As Harper concludes, this is an imporant case which needs to be watched closely:

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.



Downsizing Government

Our friends at the Cato Institute, the only think tank in DC dedicate to personal and economic liberty, have launched a new site,, committed to cutting waste from the federal budget.

From the press release:

The research on the site also exposes that many public outlays—though vigorously defended by the politicians who created them and the constituencies they purport to help—are remarkably ineffective at achieving their core aims.

“Some people have lofty visions about how government spending can help society,” said Chris Edwards, director of tax policy studies at the Cato Institute and the project leader for “But the essays on this website put aside such bedtime stories about how government programs are supposed to work, and instead focus on how they actually work in the real world.” is an ongoing project that launches today with detailed information on five cabinet-level agencies: Agriculture, Commerce, Education, Energy, and Housing and Urban Development. Subsequent departments will be added as they are completed in the coming months.

The site offers detailed examples of inefficiency, ineffectiveness, redundancy and corruption inside federal government agencies. It provides charts showing federal spending by department, federal aid to states and the number of subsidy programs.

You can follow Downsizing Government on Twitter @DownsizeTheFeds and you can become a fan on Facebook.


NYT: Spectacularly Wrong … Yet Again

Will someone please buy these people a subscription to Google or something? In trying to compare TANF and TARP spending, Nancy Folbre makes a rather glaringly error:

Robert Rector and Katharine Bradley of the Heritage Foundation, a conservative research organization, estimate that federal welfare spending amounted to $491 billion in fiscal 2008. (They don’t explain what specific programs they included in this estimate, and I’ll try to unpack it in a future post.) Even their extremely high estimate remains far below estimates of the total of $2.5 trillion spent on financial bailouts this year. The libertarian Cato Institute often emphasizes the issue of corporate welfare, but it’s remained remarkably quiet so far on the topic of bailouts.

David Boaz begs to differ:

Excuse me?

Since she linked to one of our papers on corporate welfare, we assume she’s visited our site. How, then, could she get such an impression? Cato scholars have been deploring bailouts since last September. (Actually, since the Chrysler bailout of 1979, but we’ll skip forward to the recent avalanche of Bush-Obama bailouts.) Just recently, for instance, in — ahem — the New York Times, senior fellow William Poole implored, “Stop the Bailouts.” I wonder if our commentaries started with my blog post “Bailout Nation?” last September 8? Or maybe with Thomas Humphrey and Richard Timberlake’s “The Imperial Fed,” deploring the Federal Reserve’s help for Bear Stearns, on April 14 of last year?

Boaz goes onto reproduce a video compilation of Cato scholars denouncing bailouts on “more than 90 radio and television programs.” He also produces an impressive list of papers, articles and media appearances which seriously challenge Folbre’s notion of “remarkably quiet.”

Folbre doubles down here:

You’re right. The Cato Institute website has not been silent. It just didn’t meet my expectations of adequate noise.

Yeah. Too bad her post didn’t meet reality’s expectations for factual.