Democracy in America

AMERICA comes top of the charts in all-time Olympic medals, places named for George Washington, incarceration, obesity and, we learned yesterday, another metric of which it has no cause to be proud: number of times law-enforcement agencies asked Google to relinquish data on private citizens. Google updated its transparency report this week with figures from the last half of 2012. Those figures show that American law-enforcement agencies made 8,438 requests for user data, which is more than the number of requests made by the next four nosiest countries (India, France, Germany and Britain) combined. In fact, since Google began releasing statistics on user-information requests four years ago, America has come top of the charts in every six-month period save one: from July through December 2009 Brazil edged it out by 73 requests. Since then America's requests have more than doubled, and the total number of requests has risen from 12,539 to 21,389.

That is not surprising. For one thing, America's population is far larger than that of France, Germany and Britain, and it has more internet users than India. And the amount of data available online has grown. But perhaps more importantly, nobody leaves a rich vein untapped. Google does not just receive a lot of requests from American courts, lawyers and police; it also grants most of them. The total percentage of requests granted may have declined slightly—from 94% in July to December 2010 to 88% two years later—but total numbers have risen. Perhaps most worryingly, 68% of requests, more than two in every three, came in the form of a subpoena, while only 22% came through search warrants. Judges have to grant warrants based on probable cause, but subpoenas, as Google's legal director explains, "are the easiest to get because they typically don't involve judges." We have written about this before: the laws governing online surveillance in America can fairly be called archaic. They not only allow but practically encourage law-enforcement agencies to go data-fishing. Can such actions ensnare those who have neither committed nor been suspected of committing any crimes? Ask David Petraeus.

That's the bad news. The good news is, first, that Google actually releases this data. Most online companies and service providers don't (Twitter is another laudable exception), and they should. In 2011 mobile-phone and internet-service providers received 1.3m requests for data from law enforcement—and that just includes the nine providers who responded to a request from Ed Markey, a Democratic congressman from Massachusetts who co-chairs the Bipartisan Congressional Privacy Caucus. Sprint gets 1,500 requests a day, which means it tops Google's six-month totals every week. And 1.3m requests does not mean 1.3m people: cell-tower dumps reveal all subscribers in the location of a certain mobile-phone tower at a certain time. If government feels that restaurant patrons have the right to know whether chefs are washing their hands before cooking, surely mobile-phone and internet-service patrons have the right to know on what basis their providers will surrender putatively private data to the government.

The other bit of good news is that Google actually seems to be standing up for its users. Chris Gaither, a Google spokesman, told Ars Technica that it requires a warrant to surrender Gmail content. Registration information is held to a lesser standard. This is more or less consistent with current telecommunication-surveillance law, which requires stricter burdens of proof to listen in on telephone conversations than it does for information on what numbers a phone communicates with (a pen/trap tap). Whether it is consistent with the law as it should be is another question. User-data information allows the government not only to see who you call and who calls you, but also—thanks to tower dumps—where you are at any given time, who your friends are, who their friends are, what websites you visit, where you shop online and so forth. One could well argue that the relevant parts of our online and mobile lives are not what we deliberately reveal in our communication, but what is revealed about us as a matter of digital course. Congress passed the Electronic Communications Privacy Act (ECPA) in 1986. It is long past time for ECPA 2.0.

(Photo credit: AFP)

THE president will be faced with many challenges during his second term, though he may prefer to see America play the role of indispensable catalyst, rather than indispensable nation

AARON SWARTZ , who committed suicide earlier this month, had been arrested for illegally downloading millions of articles from JSTOR, an archive of academic journals. Once Mr Swartz had returned the material and promised not to distribute or use it, JSTOR pressed no charges. That did not mollify federal prosecutors. They charged him with 13 felony counts, including wire fraud, computer fraud and criminal forfeiture. Then they offered him a deal familiar to criminal defendants everywhere: plead guilty, and get off relatively easily—in his case, six months in a “low security setting”—or take your chances at trial, and face a harsher sentence if you lose. For Mr Swartz, that could have meant decades in prison and fines topping $1m.

Plea bargains such as this have long been part of the American legal system. In theory they work to the benefit of all parties. The defendant admits his guilt and gets a lighter sentence; the prosecutor notches up a win; and the court is spared the time and cost of holding a trial. The reality is far murkier.

Until the early 20th century, plea-bargaining was widely considered corrupt. But as the number of criminal statutes grew, so did the stress on the courts, and the consequent need to avoid endless trials. During Prohibition the number of criminal cases soared: by 1930 almost eight times as many people were prosecuted for violating the National Prohibition Act as were prosecuted for all federal crimes just 16 years earlier, and the vast majority of convictions—around 90% by 1925—resulted from guilty pleas rather than trials. The end of Prohibition brought down both the number of federal criminal cases—from an average of more than 58,000 a year in the 1920s to around 37,000 in the 1950s—and the rate of adjudications through guilty or no-contest pleas, to around 83% by 1945.

But immigration offences and Prohibition redux—America’s drug war—drove both numbers up in the late 20th and early 21st centuries. In 1990 29,011 defendants crowded the federal court system; by 2010 that number had nearly tripled, to 83,946. Of those, 81,217 pleaded guilty, meaning that prosecutors did not have to convince juries of their guilt beyond a reasonable doubt. They merely had to persuade a grand jury to charge the defendants, a far lower standard of proof (not for nothing did a New York judge once say that a good prosecutor could convince a grand jury to “indict a ham sandwich”), and they had to persuade defendants that pleading guilty was a sound rational choice.

They have been helped by another unfortunate legacy of the drug war: mandatory minimum sentences. From 1990 to 2010 the number of federal defendants whose conviction carries at least one mandatory minimum sentence has more than tripled, from 6,685 to 19,896. Intended to ensure fairness and reduce variation in sentencing between jurisdictions, mandatory minimums have instead, in effect, transferred discretion from judges to prosecutors. Many judges dislike mandatory minimums, and last week Patrick Leahy, who heads the Senate Judiciary Committee, called for ending them, but where that ranks among the priorities of the incoming Congress is unclear.

Some have urged the same for plea bargaining—an unlikely event, given that both prosecutors and defendants do it, and that its abolition would probably smother an overtaxed court system. A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than just during or before trial. Prosecutors will always wield a great deal of power in the American criminal system, but before a defendant agrees to plead guilty, he ought to know whether the state holds four aces or a busted flush.

WHAT is the true legacy of Roe v Wade, which was decided 40 years ago today? On the one hand, that question seems obvious: legal abortion. In Roe the Supreme Court held that the "due process" clause of the 14th amendment contains "a concept of personal liberty", and, building on an earlier decision that barred states from criminalising counselling related to contraception, that "the penumbras of the Bill of Rights" enshrine "a right of personal privacy, or a guarantee of certain areas or zones of privacy". It found that this right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy", and thus found blanket or statutory bans on abortion unconstitutional. States could ban third-trimester abortions, and "regulate the abortion procedure in ways that are reasonably related to maternal health" in the second, but in the first trimester the decision to terminate a pregnancy was solely the province of a woman and her doctor.

But, as the past few years have shown, just because states cannot ban abortion outright does not mean they cannot regulate it out of practical existence. In 2011 states enacted three times as many restrictions (91) on abortion providers and clinics than in the next-highest year (35). Virginia required abortion clinics to meet the same (onerous and expensive) building, parking and record-keeping requirements as hospitals. Mississippi requires abortionists practicing there to have admitting privileges in local hospitals—privileges that must be applied for and can be denied for any reason, such as not wanting to grant them to doctors who perform abortions. Personhood amendments, which would define human life as beginning at conception and therefore make abortion murder, have not won passage onto any state's constitution, but advocates will no doubt keep trying. As the maps in this article show, first-trimester abortions may be just as constitutionally protected today as they were 13 years ago, but they are functionally far harder for women (particularly poor women, who lack the means to travel out-of-state) to obtain.

Writing in the New Yorker, Jill Lepore makes a compelling case that the real and lasting legacy of Roe has nothing to do with abortion; instead, it has to do with how the left and right use courts. The left, seeing the backlash that resulted from the Supreme Court effectively deciding a complex and thorny social issue, has been reluctant to go that road again. The right, seeing how the Supreme Court had effectively decided a complex and thorny social issue, has, in the words of a constitutional-law scholar whom Ms Lepore quotes, "raised a generation of people who understand that courts matter and who will vote on that basis and can be mobilised to vote on that basis and who are willing to pay political costs for votes. This is completely lacking on the other side." Never underestimate the instructive power of failure and loss, in other words. Witness the now-orthodox but until recently rather fringe opinion that the second amendment fully protects an individual's right to own whatever guns and accessories he pleases. Or the monstrously unpopular decision to permit unlimited campaign spending. Or the fight to gut the Voting Rights Act, which was overwhelmingly renewed with bipartisan support, on the basis not of (or not only of) political popularity but evidence of continued discrimination, just seven years ago.

This legacy, it seems to me, is wholly unsalutary. Of course, rights should not be subject to referendum. The civil-war amendments were rammed down the throats of 19th-century white southerners, as well they should have been. At various points in the past decade you probably could have found a majority of voters in plenty of states who would have supported abrogating the first amendment for Muslims. I would guess measures to permit, or even compel, Christian prayers in public schools would easily pass in my home state and most of its neighbours.

But not all contentious social issues boil down to, or should be boiled down to, rights to be disputed in courts. I have a tremendous amount of sympathy for people who argue that the right to marry the person of one's choosing, regardless of gender, is a fundamental right not subject to ratification by the majority of voters. I have this sympathy because they are correct. But what is that correctness worth in the long-term, balanced against the social consequences when majorities of voters in four states did, in fact, approve of that right, as opposed to the consequences of a top-down decision from a judge in California. As Ms Lepore notes in her piece, the court route encouraged abortion-rights advocates to argue their position based on privacy, rather than equality—to make the argument legalistic and abstract, rather than concrete and inclusive. Small wonder that the left has been on its heels on abortion ever since, just as the right has on campaign finance.

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THOUGH the crowds are expected to be thinner for today's inauguration, the second for Barack Obama, Washington has spent the past week adorning itself for the occasion. The buildings lining Pennsylvania Avenue are festooned with flags, bunting and at least one banner saluting the inauguration of America's "44th president", which Mr Obama has been since January 20th 2009.

First inaugurals embody the peaceful transfer of power that is the minor-miracle of all democratic countries, and they often engender broad feelings of hope, optimism and renewal across the country. Second inaugurals, on the other hand, are like gaudy second marriage ceremonies. They feel excessive and insipid.

Jon Meacham disagrees. In a Washington Post piece that attempts to justify the event, he calls it a worthwhile civic ritual: “It’s once in a lifetime for people who come to Washington for it, more than for people in Washington.” But in the same column others give away the game, referring to the inauguration as a victory party—one for half the country, paid for by everyone. Enraptured Democrats and access-seeking corporations will pony up the $50m for the festivities, but every taxpayer will have the pleasure of pitching in to cover the additional $100m cost of security for the three days of revelry.

Sally Quinn is more convincing in stating, “Rituals, celebrations and traditions are what hold people and communities together", and a presidential inauguration “makes us feel proud to be Americans, it builds our morale, it inspires our patriotism. If Obama simply had a small swearing-in at the White House…we would feel cheated." But watching yesterday's official administering of the oath, shown above and broadcast live to the nation, your correspondent did not feel cheated. The image of the president, his family and the chief justice formalising Mr Obama’s re-election was powerful and moving in its simplicity and solemnity.

It demonstrated that a public ritual does not require rhetorical cartwheels and marching bands to honour our most important public virtues. The man who, for his time in office, embodies the nation received the same oath as all his predecessors from the man who, for his time in office, embodies the fundamental laws upon which the country is built. That the two men have not always been on friendly terms merely served to accentuate the ceremony's value in expressing the will of the voters and the primacy of the law. Of course, this same element of the ritual occurs during the royal-wedding version of the inauguration, but it is diminished by the accompanying pomp and bombast.

In his argument for today’s full inaugural celebration, Mr Meacham further says, "It’s [a president's] last clean shot, the last time they have the ears of the country and the world." But the second inaugural address is usually little more than a glorified state-of-the-union speech. In fact, Mr Obama's aides say that's exactly what it will be—part one of a two-part presentation of his second-term agenda. Those agendas have a history of going awry, so the president may want to look to one of his idols, Abraham Lincoln, who gave the last great second-inaugural address, in 1865. It was 701 words long and remains a lesson in humility during moments of great triumph.

Re-elected presidents wish that their second inaugural will be a reset, a new start that recaptures the magic and hope of their first big day in January, four years before. But the country would be better served by a suitable dose of reality on the first day of a second presidential term, especially one that begins in the middle of a prolonged partisan fight over policy. Yesterday’s ceremony should become the standard second inaugural: the once and future chief executive should be administered the oath of office at the White House without fanfare. Ritual does not always have to equal Super Bowl to stir the better angels of our nature. Sometimes, simpler and quieter is best.

(Photo credit: AFP)

I ENJOYED this headline, from earlier in the week, on the BuzzFeed website: "Obama Looks To Saddle Republicans With Blame For Debt Limit Fight". That's sort of like me saddling you with the blame for threatening to take my wallet. If a fight is instigated by one side, then that side is to blame for instigating the fight. I'm not sure if Republicans would quibble with that logic, but they have claimed that their actions are a necessary means to an essential end: deficit reduction. Of course, if Republicans were truly interested in deficit reduction as their top priority, they could have signed on to the Simpson-Bowles plan, or allowed all of the Bush tax cuts to expire, or let the sequester take effect. Their belligerence in pushing for deficit reduction on their own terms underlines a central misconception of the fiscal debate: namely, that it is a debate over the deficit.

There are many pundits out there who treat the deficit as if it were a simple math problem that could be solved if only the Republicans and Democrats were a bit more cordial. Such a simplistic viewing of the challenge allows self-righteous people to call for real bipartisan solutions, while offering nothing of substance (I say this only somewhat self-consciously). It allows for the public exaltation of the non-partisan Simpson-Bowles plan, despite a general ignorance of that plan's details. It allows for the formation of a group like Fix The Debt, which seems to have the very popular goal of fixing the debt. Hear, hear, let's fix this thing already!

But life is not so simple, nor is America's budget. The true nature of the debt conversation was perhaps best captured by Matt Yglesias last year when he asked Fix The Debt about its advocacy of lower tax rates, a solution that would seemingly add to the problem. The group fumbled its response leading Mr Yglesias to sagely conclude

[I]f you saw a bunch of Quakers running around in a panic about the national debt pushing a plan to reduce the debt by cutting military spending, and then loudly objecting to all debt-reduction plans that don't slash military spending you'd rapidly reach the conclusion that the Quakers don't actually care about the national debt. They're just pacifists.

Something similar is true of most members of Congress. They may like to think of themselves as deficit hawks and others as deficit doves; in fact, they are a motley crew of tax cutters, defence spenders, entitlement protectors and so on. That's because tax cuts have a constituency (those who will benefit), entitlements have a constituency (those receiving them) and defence spending has a constituency (defence contractors and their rah-rah chorus). Fixing the deficit doesn't really have a constituency, as nobody benefits directly. Even those voters who claim to be most concerned about the deficit are likely viewing it as a proxy for taxes, jobs or entitlements. Republicans, who tend to express more concern about deficits, often equate it to big government. But big governments have been run with small or no deficits, and small governments have been run with big deficits.

As a result, fixing the debt is pretty damn hard. The argument is drawn out over multiple fronts. In some cases, the combatants can't even agree which fronts to meet on, or when the battle will be held. (Republicans have said they will not discuss taxes. Many Democrats believe entitlement reform should be put off.) Even the cause of war is in dispute—is the economy troubled by a lack of aggregate demand, or uncertainty over the deficit? Is American credit-worthiness strong, or are we going the way of Greece?

Given the intricacy of the problem, it seems rather naive to suggest a little more comity would lead to compromise solutions that are obvious if only politicians took off their partisan blinders. These vapid pleas for harmony not only ignore the complexity of the fight, but also act as though the latest hostilities were legitimate and not a hostage grab perpetrated by one side. Unfortunately, little is likely to change as the current battle unfolds. The most likely outcome of this mess is a dirty compromise that leaves very serious people calling for more cooperation in Washington, and partisans calling for higher stakes in the next fight.