'Patriot Act' or privacy slap?
Metcalf interviews professor on government use of surveillance

Editor's Note: The latest round of "anti-terrorism" legislation wasn't the first time the U.S. Department of Justice and the FBI misled Congress to obtain new tools to perform surveillance on ordinary Americans, says economist Charlotte Twight, a contributing editor of the "Independent Review" and professor at Boise State University.

"Although represented prior to passage as an innocuous measure intended only to maintain existing government authority," writes Dr. Twight, "[the 1994 federal Communications Assistance for Law Enforcement Act (CALEA)] immediately became a springboard in the government's quest for increased surveillance power."

Geoff Metcalf interviewed Twight about government abuse of power, particularly as it relates the new Patriot Act, recently signed into law by the president.

By Geoff Metcalf

Q: I continue to hear from readers and listeners (including some real snotty e-mail) who say, "Hey, if you don't have anything to hide, what do you care if the government is looking into your stuff?"

A: Oh, I know a lot of people have that belief. My answer to it is, first of all, we can't be sure if we have anything to hide, because nowadays there are so many vague and conflicting laws and so many laws and regulations that an ordinary person can't know if he or she is in compliance with all those things.

Q: Ayn Rand had it right: They'll eventually make everything illegal, and then they can just cherry pick who they want to go after.

A: Right. And also, from my point of view, the logical implication of that -- the argument that "I have nothing to hide" -- is that if you have nothing to hide, then it would be perfectly OK for the government to have a surveillance camera in your home. And I don't think that's the kind of country I grew up in or the type of country that most Americans want to live in and have lived in historically. Also, there is the danger of abuse of power that we always have to be concerned about.

Q: Some folks come back and say, "Yeah, but it's been sunsetted!" So that at the conclusion of the Bush administration it has to be revisited. But hey, come on ... we know the way these things happen. At the eleventh hour, late night in Congress: "All in favor, opposed, so voted," and you've got these draconian powers gifted to arguably another administration like the one we just survived for the last eight years.

A: Exactly so. And as you say, some of the provisions in the new, so-called "U.S. Patriot Act" don't actually expire. They just have to be looked at again. I think there is a good likelihood that they will just continue.

Q: This isn't a unique happenstance. I wrote a piece a while back, noting that multiple times in U.S. history -- going back to the Alien and Sedition Act of 1798, the McCarren Act, the Smith Act -- the government has pretty regularly chosen either to undermine or abrogate the First Amendment. Your piece on "Privacy and the 1994 federal Communications Assistance for Law Enforcement Act" (CALEA) was fascinating.

A: What was very interesting to me about that 1994 law was, again, the rationale was simply to help law enforcement maintain existing powers. The whole idea was simply to sort of bring law enforcement up to the modern technological standard. The FBI made very clear, repeated, but false claims that it did not intend to do certain things with this legislation, that it would not create any new authority, that it would not give them authority to go after cell-phone location information, that it would increase, rather than decrease privacy protection, and almost as soon as ...

Q: In other words, they lied!

A: Exactly. Almost as soon as the ink was dry on that statute, they completely reversed the position they had taken before Congress in their own testimony.

Q: Echelon has been around for about 50 years, Carnivore -- they can change the name as many times as they want -- and now there's a new one. What's the latest one?

A: There is one called "Digital Storm" that they are after. But I read a very charming article a few months ago saying it really seemed like the FBI and the Department of Justice had a tin ear on these things. One commentator suggested that perhaps their program should be called "Vegetarian."

Q: I don't find this stuff funny.

A: I don't either.

Q: Obviously, the opportunity for abuse of power is legion. I want to ask you, when the FBI was trying to sell the 1994 CALEA thing, were they intentionally being duplicitous and lying? You "try" to give them the benefit of the doubt and say hey, maybe things changed after the fact -- which, by the way, I am reluctant to accept. Were they intentionally lying?

A: I would urge your readers to read my full article, because it is very difficult to make just a flat-out statement about something like that without being able to present the evidence. But I have, as you have seen in the article, perhaps 20 to 25 places where the director of the FBI explicitly said that they did not want phone location information, and then through just a little clever changing of the wording, they made it such that after the fact they could claim exactly the opposite. And I don't understand how they could repeat something like that so many times and then just immediately reverse themselves.

Q: In the hearings back in '94, Louis Freeh, of whom I got the impression was just Jonesing any and all kinds of privacy invasion, wanted complete and absolute "Big Brother," but he repeatedly misled Congress. Now, if you mislead Congress once, it might be a whoops. If you mislead them two or three times, maybe you're trying to push the envelope. But this guy made a career out of it.

A: So it seems. That's why I felt justified in having the main title of my article to be "Conning Congress," because that is what seemed to happen in this case.

Q: Is Congress really that dumb?

A: I think there are some very smart people in Congress, but I think it's very difficult for them to understand what is happening when you have high-level government officials that are misrepresenting things to them.

Q: The reality is, and this is chilling for most people to recognize, but on these really complex issues -- things like NAFTA and GATT, documents than can stack up to the ceiling -- most congressmen, before they vote on these things, will get nothing nearly as comprehensive as even your article. Rather, they will get a one- or two-page summary with some bullet points on it. And that is what they base their decisions on.

A: Yes, and they don't even read the proposed statutory language. To me, that is incredible -- that in a free society, our representatives don't even read the legislation.

Q: Not to digress too much, but about 10 years ago, I was (and still am) a big opponent of NAFTA. I was so ticked off by it that I actually did something outrageous. I read the document.

A: The whole thing?

Q: All 1,472 pages.

A: I have not even done that.

Q: And in the course of the government trying to sell that to us, there was an Ambassador Myles Frechette who was making the circuit. He was Warren Christopher's special assistant for NAFTA. He showed up for an interview with about 12 talking points, and he was there to explain to me how great and wonderful NAFTA was. I was asking very pointed questions like, "Excuse me, Mr. Ambassador, but on page 827, subparagraph (d), it says ..." And he was flummoxed, and unhappy.

A: Also, things are complicated by the fact that if there is something really terrible they don't want people to see in a proposed statute, oftentimes it is sandwiched in the most obscure place in a very long piece of legislation.

Q: Frequently -- too frequently -- our lawmakers hide the more egregious items somewhere in the back of a long complicated collection of unrelated language. You have a good example from 1997.

A: It was a 1997 statute, and on page 716 of 749 pages of statutory language, there was an outrageous provision that would have given a whole lot of unprecedented power to the central government to control state-issued driver licenses. It was wedged in between the following two provisions: One was a section entitled, "Sense of Congress on discriminatory application of New Brunswick provincial sales tax," and on the other side of it was, "Border Patrol Museum."

Q: Stuff like that really ticks me off ...

A: Me too!

Q: ... because, allegedly, they are supposed to have -- although I don't think the Senate has it -- but the House has a germaneness rule.

A: That seems to be a dead-letter law.

Q: They don't stand by it or enforce it. It's supposed to require them to focus on only one issue. Yet, inevitably, all the smarmy amendments have a wealth of unrelated garbage tacked on that is totally unrelated to the title of the bill. How bad is this latest anti-terrorism legislation? I mean, come on, everybody is for anti-terrorism. Right?

A: Right.

Q: I mean, what could be wrong with that? Until you actually read the language.

A: That's one of the problems. Anytime there is an appealing justification like this -- anti-terrorism, anti-money laundering, whatever it happens to be -- they just throw in the kitchen sink. Over the Thanksgiving holiday, I spent about two days reading through the 131 pages of little, bitty, single-spaced print, and it seems to me just on a first reading that there is an enormous centralization of data collection, an enormous increase in the ability of various government agencies to share information. And the whole pattern of the thing seems to be to mandate increased collection of information by banks, by schools and the like. And then require them to turn that over to the central government. If they comply, then they are exempted from liability, from people like us who might object to having our privacy violated.

Q: What if they don't comply?

A: Ah ... .if they don't go along with the government, then they are going to be punished under this statute. Does that comport with your reading?

Q: Sadly, yes. What is so frustrating is that in the wake of Sept. 11, everybody is so incensed, and they want payback. If they said one of the provisions of this new law was Osama bin Laden's head would be delivered on a pike and stuck in Times Square, most everyone would cheer and say, "Yeah, yeah, yeah, go for it!" But at the same time, what really bugs me is -- and this happens all the time, too -- Diane Feinstein and others, immediately after the terrorist attack, attempted to exploit it to pursue their agendas, already previously stated. In her case, the often-defeated National ID card. I have a visceral feeling that a lot of the really bad things proposed in the anti-terrorism bill previously, and the Crime Bill of 1993, a lot of these things just keep coming back, and coming back with different ribbons on them.

A: Yes. Robert Higgs has written a wonderful book called, "Crisis and Leviathan." He documents all through our history how in times of crisis, everybody jumps on board and creates new powers that, after the crisis subsides, don't go away. And people just get used to an increasing amount of centralized government.

Q: It was the Alien and Sedition Act of 1798 that actually ended up becoming a political tool for President John Adams to go after his political rivals. And among his political rivals were, I think, Madison and Jefferson. Jefferson ended up beating him in an election, and they actually called it the Silent Revolution of 1800, or something like that. Adams used the Alien and Sedition Act to get at newspapers that were critical of his administration, and all of a sudden they were targeted and subject to the new federal law.

A: I think what all of us need to think about is if you are looking at certain powers that are being given to the central government, or any other level of government for that matter, one always has to think about those powers being used by people who totally disagree with you. So I think people one day approve of certain legislation to the extent that they understand it. They are envisioning their friends, people who think just like they do, will be the ones administering these laws. But oftentimes it turns out to be the opposite.

Q: I don't feel real warm and fuzzy with the fact that this latest anti-terrorism legislation is supposedly sunsetted. I'm not a betting man, but I would bet it doesn't go away.

A: I bet that it won't go away either.

Q: Government is not ever in a great big hurry, notwithstanding the fact that the Constitution was designed as a government-limiting tool. It wasn't intended to give us stuff. It was intended to control government. I'm not sure where that concept got lost, but it got lost. Once they have acquired a new power, I can't see a government willingly, anxiously giving it up again.

A: I really agree with you about that. And we see it with this 1994 statute, the Communications Assistance for Law Enforcement Act. They got that through. They keep trying to expand it, and then we see it flowering anew with even broader powers through the U.S. Patriot Act.

Q: In that 1994 legislation, CALEA, the way that was sold, it was sold to Congress and to the American people. It was going to improve privacy protection.

A: Yes.

Q: Now even people that don't understand this stuff empirically will say that's good. I want my privacy protected. But it did just the opposite of that. At what point is anyone, the FBI or Congress, to be held accountable for that fraud?

A: I think they should be held accountable immediately. But within the way the system is structured. But ordinary Americans are just thinking about their business and taking care of their families, and they trust their elected officials, or at least some of them. Ordinary people don't have time to investigate these things. Then you have the reality that elected officials are sometimes trying to hide what is being done, or heads of agencies are trying to misrepresent what is being done, so it is a very challenging thing. All we can hope for is that ordinary people take it upon themselves to become informed and do some of their own research, like you did in reading NAFTA.

Q: I don't think I'd do it again.

A: I always tell my students when I'm teaching international economics that if NAFTA were only designed to establish free trade between the countries, it wouldn't have taken thousands of pages to do it.

Q: Hey, GATT was probably 10 times bigger. They killed a lot of trees to print that sucker. Actually, Dr. Pat Choate was kind of my mentor throughout the NAFTA/GATT battles. Pat kept telling me all this stuff, and I was in denial. I said, "Come on, that just can't be right." Then I took a weekend and plowed through it, and then I had my epiphany. The dispute resolution stuff with executive session committees, real Star Chamber stuff that most Americans to this day don't understand, and arguably don't care about.

A: And I'm thinking about that Communications Assistance for Law Enforcement Act, and also especially the new Patriot Act. You've seen all the provisions where you can't even understand what they are doing from the actual language. It is referring to some other section, a completely different statute, and they are just saying change this and insert the words ...

Q: I hate that! That should be illegal for them to do that. You read something, and they say "change the 'therefore' to a 'whereas' in subparagraph (d), page 832," and they don't show you what they are changing.

A: Yes, and so they aren't even straightforward enough with us to list out what the new wording will be and what the implications of that will be. Instead, you have to do weeks of research to figure out what is actually coming down.

Q: In the long piece you wrote on CALEA, once that filters down to the states and counties and municipalities, who holds their hands to walk them through the revisions?

A: I don't know the answer to that in detail.

Q: Do they just get a memo from the FBI saying this is a policy directive, and you are to do it this way because we tell you to?

A: Basically, the Communications Assistance for Law Enforcement Act allows the government to require the telecom carriers to install certain equipment that will make surveillance easier. The issue then is what kind of authority the law-enforcement officials have to have to gain access to that, and I don't know the details, but I know there are memos that go from the FBI on down to the local law enforcement.

Q: I remember there was some software that the FBI was supposed to install at the ISPs (Internet service providers) and Earthlink for one told them no.

A: And the court said that they had to accept it anyway.

Q: Wasn't there more to it though? Earthlink didn't object for the altruistic reasons of protection of privacy. They were concerned techno-geek-wise, because the software the FBI had messed up their system somehow.

A: Yes, they were worried about that, but it is my understanding that they lost in court.

Q: I am sorry to hear that. Buried in the middle of your language, there is one phrase that particularly struck me because it is a pet peeve of mine. I am an equal-opportunity offender. My litmus test is the Constitution and the Bill of Rights. Anything or anyone who attempts to mess with that I consider bad.

A: OK.

Q: I often observe that many of our problems are the product of incrementalism. And you write, "The passage of CALEA was rife with other forms of political transaction cost manipulation as well. Most important were incrementalism, concealment of their cost, and other things." How do they conceal costs?

A: One thing was that the telecommunication carriers documented in the hearings how much it was going to cost to install all of this equipment. So the remedy they came up with was to provide a certain amount, and it was a certain dollar amount that was to be provided for a limited number of years to help in the setting up of this equipment. But the telecommunications carriers said that what the government was offering was a drop in the bucket compared to the actual costs that would be incurred by the telecom companies.

Q: Here you go: "Authorized appropriation of $500 million annually for fiscal years '95 through '98 ..."

A: Yes. And the telecom carriers said it would be much more than that, and it would be an ongoing cost that was not going to be covered by the government -- meaning the taxpayers -- so the telecom carriers would be saddled with that.

Q: Which they would no doubt be compelled to pass along to their customers.

A: Yes. So that was hiding from the public the cost of the entire measure that was this statute.

Q: This whole concept of "political transaction cost manipulation," you've kinda made an avocation of that haven't you?

A: Yes. Actually, my doctoral dissertation was the first place I sort of officially developed this idea. At that time, I was looking at the federal financing bank and off-budget expenditures through the federal government and through that federal financing bank. I have sort of tested that theory in looking at many different areas of our political economy, and time after time, the types of behaviors that I identified in my theoretical work turned out to have been exactly what politicians and legislators did in practice.

Q: Were you able to stick a pin in a timeline somewhere and determine when this political transaction cost manipulation started?

A: Oh, probably centuries ago. Certainly in our country it has blossomed in recent years. But you can read Machiavelli, and really what they are talking about is political transaction cost manipulation.

Q: The inimitably frustrating thing to the taxpayer is we all have to run our own finances.

A: Yes.

Q: And it's pretty simple. You can't spend more than you make without going into hock. And there is cash in and cash out. It's really pretty simple. It really is not calculus. Yet it seems that anytime the government gets involved in anything involving our money -- not their money, our money -- their primary focus in life seems to be to make it as convoluted and complex and disorienting as possible.

A: They are going to reduce resistance by doing that. And that is one of the types of behaviors I have been studying for some years now. All of these things -- the incrementalism, the making something more complex than it needs to be, doing all these round-about things, even that funny little ... I mean it's not funny, it's deadly serious ... but putting some power-increasing measure between a Border Patrol section and something else that is totally unrelated -- these are ways of obscuring what is being done. And from the government's point of view, minimizing resistance to these measures.

Q: I made the observation earlier that Ayn Rand once said eventually everything is going to be illegal, and they'll just catch the ones they want. You quote James Scott. He talks about legible people. What are legible people?

A: It is a very wonderful book that talks about, in part, how governments seek to make people legible to the government. He's got some very interesting material in there about how even assigning last names, making sure that people have first and last names, if you go back historically, and he goes back centuries and looks at all different countries and places. He shows how one of the primary purposes of government for ages has been to try to identify what all the people are doing -- where they are, who they are, who they are related to. And, of course, that is necessary if you are going to establish a system of taxation. So they have a big financial interest in doing that.

Q: That is interesting. Several years ago, I did a family genealogy thing, and the first place the name Metcalf shows up ...

A: Yes?

Q: ... is on the Assize Roles in 1252, in England.

A: Really? That is interesting. Well, there you go!