April 25, 2006

posted by Daniel J. Solove

I think it's too easy to look back to the "good old days," making false assumptions about how the system worked, and how responsive the government was to its citizens. All the way back to the days of the Founders, politics involved various forms of negativity, muckraking, and corruption. Indeed, if one examines newspapers and political materials from the Revolutionary period forward, one sees that they are peppered with personal attacks, and forms of "yellow journalism."

Additionally, it would be unreasonable to expect that our government used to be impervious to lobbying and corporate influence. Just remember the Teapot Dome scandal, and President Harding's administration. It was probably actually easier for "special interests" to exert influence over the political and governing process before the advent of new forms of media. I think there is a strong argument to be made that the political system is more open now than it ever has been. With the Internet and the constantly 24 hour cable news cycle, it is virtually impossible for reporters to miss something that happens. Additionally, any interested citizen can relatively easily find a wealth of information about the government's operations by using a computer. Compared to one or two daily newspapers and a 30 minute television broadcast, we have access to more information now than ever.

I'm puzzled by the following statement of Stuntz's:

"Legal incentives matter. At the margin, we would see more policing if policing were less expensive--and policing would be less expensive if the law regulated police evidence-gathering less extensively. While more policing, with more searches and seizures and more monitoring of city street corners, would represent a loss to individual privacy, it would be a great boon to the residents of poor city neighborhoods, who suffer both from too much crime and too much punishment. Good police work prevents crimes from happening, hence lowers the number of arrests, prosecutions, convictions, and prison sentences. We should want those things. I sure do."

In his original essay, Stuntz indicated that police monitoring of street corners in poor neighborhoods is both a problem in itself (because it skews arrests along racial and class lines) and a symptom of the differential incentives created by Fourth Amendment law (because rich people commit their crimes in their homes and poor people commit their crimes out in the open -- his claims). Now he seems to be channeling the Kahan/Meares line that poor communities should welcome diminished constitutional protection in exchange for more crime suppression.

Another puzzling thing is that no constitutional provision has been interpreted to limit police monitoring of city streets, so the example is a bit of a straw man. But an important one: Stuntz's bottom line is that "[g]ood police work prevents crimes from happening." Policing the streets prevents crime by creating a visible deterrent. By contrast, searches and seizures prevent future crime by detecting past crime, and increases rather than decreases the number of arrests, convictions, etc.. So the straw man bears virtually the whole weight of Stuntz's argument.

Finally, what would it mean to conduct "more searches and more seizures" in poor neighborhoods? Does this mean, as Kahan and Meares argue, that police should be free to randomly search apartments in public housing projects without individualized suspicion? Suspicionless stop-and-frisks? Perhaps in the long run such policies would reduce crime, arrests, etc. But if Stuntz is truly concerned with bringing disparate numbers of poor people and racial minorities to prison, would he really rather bring the prison to them? I can't say, but I don't know what else Stuntz can possibly mean.

First: thank you to both you and William Stuntz for sharing your perspectives in such civil fashion.

Second: I continue to have problems with Stuntz's tendency to confuse correlation with causation. If government accomplished more when there was less transparency and less focus on privacy rights (and I'm not sure that this premise is even correct), then it is possible that yet another factor is responsible for all of those observations: that the government enacted legislation that would have the support of the judiciary (if not also the majority of the public). At the present time, we have the legislature passing legislation that is then essentially nullifed by the Executive via either signing statements or willful ignoring of the spirit and letter of the law. Under such conditions, it is entirely reasonable -- and I think necessary -- that both the public and the legislature insist on more transparency, not less.

This administration had great support from the Congress and the public. It lost the support by not being transparent, not by being too transparent. When faced with an administration that neither the public nor the legislature trusts, the only response that makes sense is for greater -- not less -- insistence on respect for privacy rights and civil liberties.

So I think Mr. Stuntz has it backwards and this administration could have gotten exactly what it wanted -- and with good will -- if it had not resorted to the tactics it used.

If Stuntz were to have his way right now, I also suspect we'd see more laws restricting privacy-related rights without any real gain in national security. As an empiricist by training, I want to see data showing the cost-benefit ratio. If you want to tap my phone or monitor my email, show me how many terrorist attacks you have prevented because of your strategy -- and show me how we got the most 'security bang for our buck' by using that strategy. Reducing privacy rights and transparency does not automatically translate into better government or better national security. In the case of this administration, the lack of transparency about the administration's determination to go to war in Iraq and its desperation to find excuses led to Congress being misled about the intelligence in the run-up to Iraq. The war in Iraq may even stand as the greatest rebuttal to Stuntz's argument that less transparency is better.

In any event, we still don't know what data the NSA has collected on each of us and what they have done with the data. And until I know, I will not trust this government as far as I can throw them.

With the Internet and the constantly 24 hour cable news cycle, it is virtually impossible for reporters to miss something that happens.
With all due respect, Lawstudent06 is smoking the fine crack.

Reporters missed Bush's trip to Iraq; the TSA's deal with the CDC, the utter failures of the administration to report what CIA was saying, etc, etc, ad naseum.

I continue to have problems with Stuntz's tendency to confuse correlation with causation.

I think you've hit the nail on the head. What Stuntz seems to do quite a lot of--I see this in both the TNR piece and in his Harvard Law Review piece on criminal procedure (the one Orin Kerr keeps plugging)--is to 1) identify some element of current law he doesn't like, 2) identify some social problem, and 3) assert a cause-effect link between 1 and 2.

What he does not do, even with a very lengthy law review article, is support his assertion empirically. All he does--I noticed this especially in that TNR piece--is support his generalization with more generalizations.

With all due respect, Lawstudent06 is smoking the fine crack.

Reporters missed Bush's trip to Iraq; the TSA's deal with the CDC, the utter failures of the administration to report what CIA was saying, etc, etc, ad naseum.

To clarify, what I meant by my comment was that given the 24 hour news cycle, and the incredibly large number of people in the media industry today (certainly much larger than it was 50 years ago, much less 100 years ago), many fewer stones are left unturned. It is undeniable that there is much more news reported, even if much of it borders on the mundane.

That said, the media obviously cannot know something that is kept secret. Additionally, just because the media does not focus on something, as long as something is public, the information is out there. It might not be plastered all over, but it's there.

No crack here, buddy.

This, the end of the final paragraph: "Stuntz may have legitimate gripes about a government that is not working as efficiently and intelligently as it should be, but the cause isn't privacy or transparency. It is a two-party system that doesn't adequately represent the views of many citizens. It is the constant game-playing and partisan rancor that persists in Washington. It is a system that faciliates gerrymandering to keep incumbents in power and less accountable for their actions. It is the profound influence of money in politics. It is politicians voting for measures not because they're good for the country, but because they help out local interests or companies that make robust financial contributions. There's a lot that is wrong with government, but it surely isn't privacy and transparency."

...says, fairly concisely, what I think most Americans feel, a lot of Americans don't understand, and what the Democrats should be saying as we near the midterm elections.

This was my first time reading your post. It won't be my last.