So, I recently succumbed to an old collegiate vice (no, not that one…) and allowed myself to get sucked into a libertarian comments section debate. This was, on the whole, about as edifying and productive an exercise as you might expect, but having already expended an hour or two in this questionable way, I figured I might as well reproduce a couple main points here in case anyone else finds this sort of thing interesting.
The slogan that “taxation is theft” used to be fairly popular among libertarians—particularly anarcho-capitalists, who reject the legitimacy of even taxation to support a minimal state—and apparently, in some circles, it continues to be. Matt Zwolinski recently brought up a thoughtful old Loren Lomasky essay arguing that this is an unhelpful way for libertarians to talk, and promptly drew all sorts of fire from people who are fiercely committed to their slogan and, if anything, wish it would be chanted louder and with greater frequency.
So, first, a point so trivial I’d hope it wouldn’t need to be made, but which apparently does: Taken in a strict or literal sense, the claim that “taxation is theft” is just false. Standard dictionarydefinitions pretty uniformly include the idea that “theft” is a form of non-consensual property transfer that is “unlawful” or “felonious” or “without legal right.” Obviously this is quite separate from the question of whether taxation (generally or in some specific instance) is morally justifiable: Just about everyone agrees that some types of taxation (poll taxes, say) are wrong without literally constituting “theft,” and most people will also recognize that there are at least occasionally instances of “theft” that are morally permissible, or even mandatory. I bother with this only because a depressing number of people seem to confusedly believe that, though the large majority of people use “theft” in a way that definitionally excludes taxation (or other lawfully authorized transfers) from its scope, all those people are wrong about words. Which is not really possible, of course: Over the long run, what words mean really just is a popularity contest. You can stipulate whatever sense of “theft” you like for the sake of a particular discussion—nothing substantive turns on how we decide to use English terms—but these arguments so predictably collapse into vacuous verbal disputes that it seems simpler to cut to the chase and talk about why one thinks taxation is wrong.
Happily (as with the vegan slogan “meat is murder”) people mostly understand well enough what the claim “taxation is theft” is meant to express: that we should all use “theft” in a way that encompasses “taxation” as just one more distinctive subcategory (like “embezzlement”), because coercive expropriation by states is illegitimate, and so taxation is morally on par with all those other transfers we currently describe as “theft.” Bracketing the substantive plausibility of the underlying claim, that’s in principle a perfectly valid rhetorical strategy: “Marital rape” was an oxymoron until enough people insisted it shouldn’t be, and now, happily, it isn’t. Lomasky thinks this one, however, is counterproductive—and I’m inclined to agree.
For one, it’s a claim that anyone with a theory of just holdings could make about political systems that fail to satisfy their criteria, but we typically find it irritating when people with other political commitments make equivalent moves. For someone who thinks justice requires equality of resources, or distribution according to the difference principle, or whatever, then failure to tax and redistribute could be characterized as “theft” by those with surplus holdings. But framing the view that way just adds a dash of empty melodrama. Every political viewpoint has some set of principles for determining what rights over resources people have—and, implicitly, is committed to the idea that the alternative ways of allocating resources are wrong. If you’re trying to seriously debate the alternatives, adding “Wrong!” in a louder voice after you’ve articulated yours isn’t really adding anything.
Which, I think, brings us back around to Lomasky’s sense that these kinds of slogans are symptomatic of a failure to take seriously the fact of political disagreement that is both thoughtful and sincere. One important component of “theft” as ordinary people use it (though I notice that not all of the dictionaries explicitly include it) is that it is intentional. “Theft” is not just taking what one has no right to, but what one knows or reasonably ought to know one has no right to. When someone grabs your coat from a pile at a party, having mistaken it for theirs, then insofar as you’re persuaded they really have made a good faith mistake, you try to convince them of the error without resorting to calling them “thief.” (Especially if there’s some possibility that it will turn out you’re the one who’s mistaken.)
Not all disagreements, of course, are so easily resolved. Even in anarcho-capitalist utopia, after all, there would be some kind of legal system providing for non-consensual transfers of property in the case of disputes. When one person’s actions directly or indirectly harm another, there will often be disagreement about whether compensation is owed, and if so, what amount is reasonable. There will be complex contractual disputes, or questions about whether a parcel of property has easements on it, or about whether the prima facie rightful owner’s claimed property boundaries are just right. Some of these disputes will actually be pretty complicated, and not easily resolved by recourse to simple moral first principles. Invariably, either because the facts or the legal (quasi-legal?) rules are complex or ambiguous, whatever system is in place to resolve these disputes will sometimes get it wrong.
We can stipulate language evolving however we like in an imaginary anarcho-capitalist utopia, but it seems most natural to imagine the denizens of AnCapistan distinguishing between these kinds of inevitable good-faith errors and plain old theft. And it seems natural because there is a morally salient difference between simply taking what you like without regard for whether you have a right to it, and adhering to some process designed to adjudicate and enforce rights claims, even when that process will necessarily yield an unjust outcome in some cases.
Saying “taxation is theft,” then, doesn’t just entail that the speaker thinks taxation is no more morally justifiable than theft. It implies that this ought to be so self-evident to any reasonable person that those who disagree are (at best) just engaged in some kind of transparent rationalization for disregarding the rights of others. That seems both clearly wrong and unfair, even if anarchists are ultimately right about the illegitimacy of taxation. Why bother arguing at all if you believe that justifications for taxation are merely pretextual, and the great majority who regard it as legitimate (whether voters or agents of the state) do not really care whether it violates people’s rights? One might, I suppose, try to awaken a mugger’s dormant conscience by reminding them “you have no right to do this to me!”—but that would be an attempt at shaming, not persuasion: The mugger’s problem is not that he doesn’t know, but that he doesn’t care.
Lomasky’s point—beyond the rhetorical utility of this particular slogan—is that libertarian rhetoric (and, to be sure, the rhetoric of some more intemperate progressives, but that’s their problem) sometimes treats good faith disagreement about what is right as equivalent to amoral indifference to what is right. Very occasionally, that may be an effective rhetorical posture even when it’s somewhat unfair. Usually, though, it seems to be neither fair nor effective—except, perhaps, at delivering whatever psychological satisfaction people obtain from imagining themselves among the righteous few in a sea of thugs and moral imbeciles. When one is politically impotent, I guess, one takes what consolation prizes one can.
One additional theoretical consideration that’s largely independent of Lomasky’s (and Zwolinsky’s) main point. The slogan that “taxation is theft” is ambiguous: We can read it to mean, as the anarchist typically does, that taxation per se is categorically illegitimate, but also as a more specific claim that actually-existing taxation involves depriving people of specific holdings to which they are entitled. The second claim, it seems to me, is indefensible even if we suppose the anarchists are right as a matter of ideal theory. If we take that theory to be some variant of neo-Lockean/Rothbardian/Nozickian/whatever account of initial appropriation and transfer, almost nobody residing in any actually-existing state can justify their present holdings by reference to an appropriately untainted provenance running back to the State of Nature.
Serious theorists tend to acknowledge this at least in passing, but it’s one of those elephants in the room that anarchist and minarchist libertarian thinkers alike have tended to give conspicuously short shrift. In Nozick it’s basically relegated to an unsatisfying footnote to the effect that, yes, maybe we need a one-time carnival of patterned redistribution. (This is the political philosophy equivalent of Richard Dawkins tweeting “j/k: God did it up to amoebas, but THEN evolution.”) In other writers, it rates a few (equally unsatisfying) pages of hand-waving about homesteading and adverse possession.
If there’s a libertarian theorist who’s grappled with this at the length it merits, I haven’t seen it. I would love to be able to point to a few serious book-length efforts, but the Year Zero approach that just takes current holdings as given and proposes Entitlement Theory Starting Tomorrow have always struck me as the sort of ad hoccery that makes caricatures of libertarianism as an elaborate rationalization for privilege more plausible than they ought to be. So an independent reason to shy away from “taxation is theft” as a slogan is that it can be interpreted as an unreflective endorsement of distributional patterns riddled with profound historical injustices. Libertarians, anarchist and minarchist alike, still lack a theory of remediation serious and robust enough to meet the demands of their own priors. When we have one and it’s implemented, then the anarchist camp will be in a better position to chant their slogan.
Update: Kevin Williamson, who I can only infer thinks I am very dim indeed, quotes my trivial semantic observation above as though it were meant to be some kind of substantive argument, and responds that I am “studiously ignoring the point.” As I had hoped would be clear from the rest of the post, though, I understand the point perfectly well. I had merely meant to note, as a preface to the actual argument, that someone who denies “taxation is theft” is not grammatically wrong or confused in any strictly literal sense, and it’s silly to get mired in purely verbal disputes about the ideal Platonic definition of “theft.” As I acknowledged right after the sentences Williamson quotes, this anthropological factoid about contemporary usage has no real bearing on the upshot of the slogan, which is that taxation is morally equivalent to theft. Substantive moral questions can’t be resolved by dictionaries. That said, it’s my own fault for spending too many words on a silly and trivial point, so I’ve made some edits in hopes of leaving it a little clearer what I’m trying to do here.
Just in case though: This is not a post about whether taxation is categorically wrong (though I don’t happen to think so). Rather, this is a post about why, even assuming arguendo that taxation is illegitimate, slogans like “taxation is theft” are not a helpful way to express that claim, because they equate a good faith disagreement about what rights people have with malicious disregard for those rights. I find it morally outrageous that we imprison people for selling drugs to willing adult buyers; such imprisonment is always unjust. But framing this as the claim that “drug prohibition is kidnapping” is not, in most cases, a useful thing to say to someone who disagrees about the underlying point, for basically the same reasons that equating opposition to single-payer with a desire to watch the poor suffer rarely leads to any kind of interesting conversation.
In the previous post, I ran through some criticisms of the Supreme Court’s recent Hobby Lobby ruling that I don’t think are very impressive—some because they’re unconvincing, others because they wouldn’t be relevant to the core logic of the opinion even if they were otherwise absolutely correct. For the purposes of this post, then, I’m going to assume that the Court got it right in finding Hobby Lobby to be a “person” under the Religious Freedom Restoration Act, just like religious non-profit corporations are, and that a mandate to include contraceptive coverage in any health insurance it provides employees counts as a “burden” on the religious convictions that its owners want the company to embody, whatever we might think of those convictions. I’m also going to assume, as the Court did, that enabling widespread access to contraception is a “compelling state interest” weighty enough to justify that religious burden—but that the state’s interest has to be balanced against that burden, and pursued by less restrictive means where feasible. With those assumptions in place, here’s a sketch of what seems to me like a plausible critique of the Hobby Lobby ruling, and one I haven’t really seen opponents making so far (though perhaps that just means I need to read more widely).
Justice Alito’s attempt to “balance” the competing interests in this case is actually surprisingly cursory, even though one might logically expect it to be the heart of the opinion. The reason is that the Department of Health and Human Services has already, as you may recall, created an exemption to the contraceptive coverage mandate for non-profit religious corporations like churches, charities, Catholic hospitals, and so on. Moreover, they did so in a way that guarantees employees of those non-profits exactly the same contraception coverage they’d enjoy without an exemption, and apparently at no additional cost. As Alito writes:
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
Well, this seems like a no-brainer. Why would you force a religious institution (whether a church or a company that sells stuff) to violate its avowed religious convictions (even if they’re dumb convictions) if you could achieve exactly the same result without doing so, and at more or less the same cost? No wonder Alito doesn’t spend much time here! The trouble is, if the HHS exemption turns out not to scale well—if extending it to the “closely held” corporations that employ just over half of American workers ends up messing with incentives in a way that yields substantial additional costs and messes with the structure created by the Affordable Care Act in thorny and unpredictable ways, then Alito’s breezy treatment of the balancing question at the logical heart of the opinion starts to look much less adequate. So let’s consider why that might be the case.
The solution HHS came up with for religious non-profits that object to covering contraception looks like an ingenious win-win compromise, basically an accounting trick that leaves employees with the same coverage while satisfying (many, though not all) religious employers that they’re not contravening the tenets of their faith. The employer buys its employees a health plan that excludes contraceptives, but then HHS requires the insurer to give those employees a separate plan that just pays for birth control. This might seem like a bad deal for the insurers—why is it on them to buy something the employer won’t pay for?—but, at least according to HHS, it actually isn’t. Pregnancy and maternity care are (apparently) so very expensive that the cost of buying contraception for all those workers ends up being balanced or outweighed by the money the insurer saves from not having to cover the cost of more unintended pregnancies. In other words, it would be in the insurer’s interest to offer contraception, for no higher premium, as part of any health plan that covered maternity expenses. Under the HHS exemption rule, that’s arguably what’s still basically going on—but with some ledger shuffling to placate the religious employers who don’t want to be the ones paying for it on paper. Hey, if it makes them happy, why not?
That’s how it works for “fully insured” health plans, at any rate—plans where an employer’s only real role is buying its employees a benefit from an outside company. The wrinkle is that roughly half of workers are getting their healthcare covered through “self-funded” plans, where the employer itself acts as the insurer for at least some types of health expenditures. Hobby Lobby, as it happens, is an employer that runs such a self-funded plan.
For those plans, the HHS exemption works slightly differently. Generally there’s a “third-party administrator” managing the funds being pooled to cover employees’ claims for health expenditures, and who HHS makes responsible for ensuring birth control is covered:
The third party administrator must then provide or arrange separate payments for contraceptive services for the women in the health plan of the organization, at no cost to the women or to the organization. The costs of such payments can be offset by adjustments in Federally-facilitated Exchange user fees paid by a health insurance issuer with which the third party administration has an arrangement
The “adjustments” are effectively a backdoor government subsidy that offsets the cost of birth control for workers whose employers don’t want to include it in their self-funded plans. If there are only so many religious nonprofits with self-funded plans, and their employees buy contraception at relatively low rates for the same religious reasons the employers don’t want to provide coverage, the cost to the government (in the form of lower “user fee” revenue) ends up being small enough to absorb without much fuss—especially with the federal exchange filling in for all those states that haven’t gotten their own exchanges running yet.
But now what happens when an ordinary business with a self-funded plan can invoke the same exception, especially if their employees are more apt to avail themselves of the contraceptive benefit than, say, church employees? The obvious effect is that the number of people whose birth control has to be covered via “fee adjustments” spikes significantly. The less obvious effect is that shifting to a self-funded plan with an exemption starts looking like a much better deal for those for-profit companies. All the benefits of lower pregnancy and maternity costs resulting from employees getting free birth control accrue to the company—but the cost of buying the contraception is offloaded, effectively, on the government.
If that ends up entailing substantial savings—relative, say, to buying a “fully insured” plan whose premiums have to cover outlays for both contraception and maternity care—the company arguably has a fiduciary obligation to go that route. The claimed religious exemption doesn’t even have to be pretextual: Just install an executive with the appropriate deeply-held religious convictions! Depending on the numbers, you may see enough companies going this route that the costs eventually exceed what “fee adjustments” can reasonably absorb. This possibility doesn’t really factor into the Hobby Lobby opinion—Alito just says HHS hasn’t provided any estimates that would provide the Court with a basis for finding the cost of widening the exemption unreasonably high.
I’m not going to pretend to any kind of expertise in healthcare economics, so I won’t make an estimate either. But this at least seems like a superficially plausible story about how extending the current non-profit exemption could, over time, shift non-trivial costs to the government. It could conceivably even incentivize such cost-shifting by firms that, absent the backdoor government subsidy, would find it economically advantageous to cover contraception themselves (or buy fully-insured plans rather than self-funding) in order to reduce their maternity care outlays.
It’s important to note that his is not yet another wacky reductio hypothetical along the lines of “what if all the CEOs suddenly joined the Church of Unsafe Working Conditions??” By and large, religious exceptions and accommodations work because they’re exceptions. If everyone were a conscientious objector, maybe we’d suffer a catastrophic military defeat… but everyone isn’t, so it works out. Balancing real felt burdens on people’s actual religious practice against imaginary scenarios involving made up religious beliefs that sound like transparent pretexts to evade the law is not a particularly fair test. But if it’s plausible that in our very own non-hypothetical world, there are many people with sincere beliefs of this sort who are in fact likely to invoke the exemption, that’s another story. Now we’re not dealing in dorm room “what ifs” about mechanically extending the court’s logic to some fanciful scenario, but the practical question of what disruptive outcomes are actually probable. That we might at least attempt to balance.
Whether this would ultimately change the outcome of the “balancing test” the Hobby Lobby majority engages in, it does at least seem like the sort of consideration that would have to factor in to an adequate test. A fair reply might still very well be: “Look, if providing contraception is such a compelling state interest, the state ought to be willing to provide it directly, and maybe correspondingly reduce the tax advantage associated with employer-provided healthcare, rather than offering an all-or-nothing tax benefit that effectively penalizes business owners for not compromising their convictions.” (That this seems politically implausible would be an understandable lament on policy grounds, but it’s not really a legal argument—amounting, as it does, to a prediction that Congress will not deem the interest so compelling after all.) On the other hand, the Court might have concluded that the potential effect on costs and incentives involved would be substantial enough to exceed the degree of “accommodation” RFRA was meant to require.
Maybe we can say this much for the Hobby Lobby ruling either way: If this scenario doesn’t manifest, then the Court will indeed have spared religious business owners a painful choice without much effect on the benefits workers enjoy. If it does, either Congress can try to craft its own solution, or the Court will get another opportunity to run the RFRA “balancing test” again with the benefit of more information.
One of the frustrating things about the reactions to the Hobby Lobby ruling—mostly from progressives, if only because people naturally to respond in much greater detail to decisions they disagree with—is that there’s an interesting debate to be had about the case, but we’re mostly not having it. Most of the critiques I’ve seen of the ruling involve fervently advanced arguments that are simply not relevant to the decision, along with a smattering that are relevant but not very good. This is not entirely the fault of the critics: Of the five “myths” about the Hobby Lobby case that Irin Carmon seeks to debunk over at MSNBC, only number 4 is really germane to the core logic of the ruling, but she’s responding to things various conservatives nevertheless keep asserting. So, if only in the interest of pushing the public debate into a place I find more interesting and fruitful, I’d like to help the critics out and sketch what I think a better argument against the Hobby Lobby ruling would look like… in the next post.
But first, to lay some groundwork, it’s important to be clear on the basis of the ruling so we can sort out the irrelevant arguments and dispose of the weak ones. There are really three central elements on which the decision rests:
• A “closely held” for-profit corporation like Hobby Lobby is a “person,” as that term is used in the Religious Freedom Restoration Act, whose “religious practice” can be burdened by government
• The requirement that a business providing health coverage for employees must provide via that coverage no-copay access to 20 forms of contraception “significantly burdens” the company’s religious practice, and
• Given the availability of “less restrictive means” of achieving the government’s aim of enabling widespread access to contraception, the government must accommodate Hobby Lobby by exempting the company from the mandate and pursuing those means.
The relevant-but-not-very-good arguments are mostly about the first two holdings, and consist to a depressing extent of derpy one-liners to the effect that corporations aren’t literally persons, can’t go to heaven, don’t get circumcised, and so on. As Matt Yglesias explains at Vox, Supreme Court justices actually understand this well enough. But the legal fiction of corporate personhood is not some perverse metaphysical confusion invented for the purposes of the Citizens United decision; it’s a longstanding legal principle courts have long taken for granted as a means of protecting the rights of individuals acting collectively through a particular legal form. The better and slightly more subtle version of the argument offered by Jacob Levy (and closer to that made by the dissenting justices) is really about the second prong: Even if corporations are “persons” under RFRA, the corporation as such doesn’t have religious “beliefs” or “practices” that can be burdened, in the same way that a corporation can engage in “speech” distinguishable from the speech of any individual member. Holding otherwise requires effectively “piercing the corporate veil” to equate its interests with those of a small number of owners—which is exactly what those owners don’t want courts to do when (say) making liability judgments.
That’s a better argument, but decisive point here, I think, is the one the majority makes: There is no serious disagreement that non-profit corporations—like churches, charities, and hospitals—are “persons” with “practices” that can be burdened as those terms are used in RFRA. Once you make the routine assumption that “persons” in a statute includes corporate persons absent some clear signal to the contrary, as basically all the litigants and justices do with respect to non-profits, there’s just nothing in RFRA to support a distinction between corporate persons based on their tax status. Whatever it might mean for a church or a school as a legal entity (as opposed to the people who run it) to have a “religious practice,” everyone’s taking as given that some do, and “not disbursing revenues as dividends” doesn’t seem like it can be the critical feature that makes this possible. This isn’t a deep question of fundamental constitutional rights, but one of statutory construction: Congress clearly could have written a distinction based on tax status into the statute, but they didn’t, so the court assumes that “person” means what it means in every other statute that doesn’t explicitly limit that term to natural persons. Also, as a not-strictly-legal point, Milton Friedman’s incorrect view that profit is the only legitimate aim of a for-profit corporation is not one you usually see progressives embracing quite so vigorously. When a company declares a commitment to values of social justice or ecological sustainability, nobody complains that this is nonsense, and really it’s just the owners and executives who “care” about or “hold” these values in a literal sense. Or at any rate, nobody who’s at all sympathetic toward those values.
Then there are the irrelevant arguments, which are of varying quality. Some focus on the scientific falsity of Hobby Lobby’s view that some types of covered birth control are abortifacents, which seems like the equivalent of quibbling with the evolutionary plausibility of the X-Men’s superpowers. It’s true, but it misses the point. In general, religious views are scientifically a lot of nonsense, and allowing any kind of religious exemption or accommodation is going to entail deferring to personal objections that, by ordinary standards of rational empirical inquiry, are pure gibberish. There is no scientific reason to think that a consecrated host is literally transmuted into the body of Christ, or that the camera used to take a photo for a government ID will steal the subject’s elan vital, or that humans were created by a supernatural intelligence. If the law accommodates people with these beliefs where feasible, it is not because any of them are remotely scientifically respectable, but because we try to avoid compelling people to directly violate their profound convictions any more than necessary, even when the convictions are stupid, and because we don’t really want government in the business of determining which are the stupid convictions.
Finally, there are arguments having to do with the importance of widespread access to contraception. The sillier ones equate an employer’s failure to directly supply that good with control over people’s bodies and sex lives, which is odd, because nobody thinks anything similar is true about the billions of people around the world who are also failing to buy coverage for specific Americans. The better ones go into all the reasons access to contraception is a great social good there are many reasons for government to promote, which I tend to agree with.
But at least for the purposes of its ruling in Hobby Lobby, the Court also agrees, assuming (though it does not hold) that facilitating access to contraception is a compelling state interest, potentially weighty enough to justify burdening religious practice. And so, as I argued earlier this week, really the decision comes down to this assertion by Justice Alito:
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.
If Alito is right, and the Department of Health and Human Services can simply extend the exemption it already offered religious non-profits to companies like Hobby Lobby while guaranteeing the same contraceptive coverage for its employees, then you can’t oppose the exemption on the grounds that it restricts people’s ability to get healthcare or interferes with their sexual autonomy or anything like that. If Alito is right, all that’s really left is the idea that we should shit on stupid religious people as a purely symbolic gesture. Which is all well and good for private individuals, but not a great argument for state compulsion.
If Alito is not right, on the other hand, things look very different. Because having assumed that enabling access to birth control is a compelling state interest, the Court has to balance the coverage mandate’s burden on religious practice against the cost of achieving the state’s compelling aims by alternative, “less restrictive” means. If, as Alito seems to assume, those costs are trivial (or even nonexistent), then the case is a no-brainer and the ruling correct. But the ruling leans pretty heavily on that assumption. If it could be shown to be wrong, then whether or not we think the ultimate result the Court reached is correct, we’d have a pretty good argument that Alito’s argument to that result is inadequate. I’ll sketch what that better argument might look like in the next post.
A few years back, as you may recall, there was some debate in scientific circles about whether Pluto should be classified as a planet—one that prompted some public consternation (and ironic T-shirts) among members of the general public dismayed to be told that, contra what they’d learned in middle school, there were only eight planets in the solar system after all.
But the reclassification wasn’t really the result of new information we learned about Pluto. Rather, it turned out that there were rather a lot more Pluto-sized masses in the general vicinity of our sun than we’d previously believed. And so, as routinely happens in the history of science, it was decided that the term “planet” needed to be given a rather more precise and rigorous definition than had previously been deployed. Astronomers settled on three criteria: A planet was an object (a) in orbit around the sun, (b) massive enough to be shaped (approximately) into a sphere by its own gravity, which also (c) had “cleared the neighborhood” of its orbit, meaning it had either absorbed or flung away other objects of similar size. Objects like Pluto, which met criteria (a) and (b), but failed on criterion (c), were instead classified as “dwarf planets.”
As quite a few prominent astronomers proposed, the definition could have been more lax, classifying everything that met the first two conditions a “planet”—in which case Pluto would have remained in the club, along with several other bodies. Moreover, some ambiguities in the definition remain, meaning future distinctions and clarifications might be necessary. Now, a child might hear about this debate and ask whether the astronomers had gotten it right: Were we now sure Pluto wasn’t a planet, or could it turn out to be after all? But an adult would understand there’s not really anything to be “right” about here—no genuine fact of the matter apart from how the relevant experts agree to use language.
Once a sufficiently precise definition is agreed upon, of course, it is an empirical question when and whether it is satisfied: Scientists can discover a new object that does or does not meet the new definition, and their classifications can be objectively correct or incorrect, as far as the precision of the definition allows, depending on the accuracy of their measurements.
But it would be misleading to say science had “learned” or “discovered” that Pluto is not a planet. They had reached a consensus—albeit a somewhat unstable one—not about the facts of the external world, but about how to use a particular term. That consensus could be more or less useful for a variety of purposes, elegant or inelegant, but unlike (say) a consensus view about whether the Earth will warm more than 3 degrees Celsius over the next century, it could not in any meaningful sense be “correct” or “incorrect,” because it is not a consensus about anything external to itself.
Which brings us, in a roundabout way, to an exchange between Michael Brendan Dougherty, Philip Bump, and Ryan Cooper over the question of “when life begins” and whether we should care about this when debating the morality of abortion. Dougherty sees Bump and Cooper as making two distinct arguments, neither of which he finds compelling: Bump is arguing that “when life begins” is something of a “philosophical question” and that “implantation” of the zygote is at least as valid an answer as “at conception.” Cooper will happily allow that a zygote (and therefore a fetus) is a “human life” in biological terms, but denies that this should be equated with moral or legal personhood. I typically prefer Cooper’s framing myself, since it seems less likely to get a discussion hung up on irrelevancies, but really these are the same point—or at any rate, closely related ones—seen from a different angle.
When does life begin? Or, to more precisely identify the real question at issue here—because, of course, “life” is really a process that extends throughout the reproductive process rather than some magical quiddity that materializes at a particular instant—when does a new living member of a particular species come into existence? Doherty thinks biology “doesn’t give us options,” and rattles off some reasons why “at conception” is supposed to clearly be the right answer:
After the fusion of sperm and egg, the resulting zygote has unique human DNA from which we can deduce the identity of its biological parents. It begins the process of cell division, and it has a metabolic action that will not end until it dies, whether that is in a few days because it never implants on the uterine wall, or years later in a gruesome fishing accident, or a century later in a hospital room filled with beloved grandchildren.
The first thing to note is that this is wrong for a reason Dougherty alludes to in the next paragraph without seeming to recognize why it’s significant. Until gastrulation, the zygote does not necessarily have “unique” human DNA—nor, indeed, is “it” even a determinate number of “its”: It can implant and continue growing into a single adult human, or into identical twins, triplets, or n-tuplets. So at the moment of conception, how many lives begin? Does one new human come into existence and then divide into triplets? Or should we say all three somehow come into existence simultaneously as a potentiality, prior to division? (Are possible triplets murdered if the cell fails to divide?)
The point of raising this little puzzle is less to elicit an answer than to make it obvious that any answer is, like the status of Pluto, a matter of making choices about language rather than discovering some important fact about the world. None of the list of properties Dougherty ascribes to the zygote require us to say: “This is when a new human organism comes into being.” We could rattle off a different list of biological processes that correspond to the unfertilized ovum, or the beginning or end of “conception” (actually a process lasting some 20 hours), or implantation, or the beginning of brain activity, or viability and declare those the “obvious” demarcation point at which a new organism exists. Having picked some set of criteria as the most useful line of demarcation, of course, it will be a matter of empirical fact when those criteria are satisfied.
Science can’t “tell” us which are the “right” criteria, however; scientists can only pick a set of conventions they find it useful to agree upon so that everyone can use terms consistently. No external facts about the world, for that matter, requires us to use the same umbrella term, “life,” to describe the processes of animals, plants, and eukaryotes alike—or to draw it narrowly so as to exclude viruses, crystalline growths, or self-replicating automata we might construct in the future.
As the bizarre taxonomy in the Celestial Emporium of Benevolent Knowledge imagined by Jorge Luis Borges reminds us, even our “scientific” terms do not somehow cleave the world along its preexisting seams. We draw up schemes of classification that serve our particular purposes, but should not imagine that utility for one purpose somehow makes that schema true in some objective or transcendent way. We individuate species by the test of whether member organisms can interbreed, which turns out to be handy for generalizing about the trajectory of their evolution—”reproductive compatibility” turns out to be a very useful way to carve up the world—but to imagine that some further ontological shift happens at the moment of speciation is pure magical thinking—and, of course, for asexually reproducing organisms like bacteria, entirely different criteria must be employed. If our biological categories have any moral significance, it has to be because of (some of) the underlying properties we use to define that category are themselves significant (or highly correlated with morally significant properties), not merely because it suits us to group them under a particular label for independent, non-moral purposes.
Which brings us to Cooper’s point: Having stipulated some particular criteria for when we’re prepared to say “a distinct human (or animal) organism exists,” it may well be that “science tells us” those criteria are satisfied at some particular point. But no interesting moral conclusions follow from our taxonomic choice. Those categories will, of course, correlate with properties we find morally significant—adult biological humans will routinely have properties that make it appropriate to respect an array of moral and political rights—but mistaking the correlation for the thing itself is just a biological form of cargo cult fetishism. If, for instance, we gained the ability to resurrect biologically dead humans after days or weeks, only an astonishingly obtuse thinker would suggest that this biological category somehow resolved the question of when it was morally permissible to cremate a (resurrectable) corpse. It is no surprise that we naturally conflate biological humanity and moral personhood—in the overwhelming majority of contexts we encounter, they overlap—but laundering this fact about our linguistic habituation into a “common intuition” is a recipe for circularity and confusion when the point is precisely to determine where that overlap begins.
Like most of my friends, I think Arizona governor Jan Brewer was probably right to veto SB 1062, which as Reason‘s J.D. Tucille writes, was less a “blow against big government” than a “homophobic stunt” designed to signal official approval of anti-gay animus, while creating a special class of associational rights for people who justify that animus by reference to ancient myths rather than plain old secular discomfort. Even worse was a similar proposal in Kansas, which not only singled out gay citizens as specially approved targets of discrimination, but licensed that discrimination when practiced by government employees acting in an official capacity, and forced businesses to “accommodate” employees who demanded to pick and choose which customers they would deign to serve.
Unlike most of my friends, I do not find it self evident that the “liberty interest” invoked by religious bigots is some kind of absurd sham worthy of mention only in derisive scare quotes. And I find it a bit disturbing that many of them seem to assume that if any anti-discrimination laws protecting any class of Americans have ever been justified, the weight of that interest has effectively been reduced to zero, and may be ignored for all future purposes. Having decided it was OK to forbid motels from turning away African Americans in 1964, in other words, many seem to take it as already settled that there’s no possible objection to compelling a photographer to work a gay wedding—except, perhaps, the invalid one rooted in the view that the homophobe’s bigotry is somehow more justifiable than the racist’s. I’m perfectly open to the notion that it may be wise and justifiable to extent the protections of anti-discrimination law to groups not currently covered—but I also wish supporters of such reforms would acknowledge that there’s a genuine impingement on associational freedom involved in such extensions, and that no simple sweeping principle can obviate the need for a close examination of the tradeoffs in each case.
As I argued in Newsweek a few years back, the “purist” libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act, as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated “private” discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.
We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race. Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce—but partly it’s because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.
Some of the considerations supporting our limited prohibition of racial discrimination apply to discrimination against gay Americans. But some don’t. Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism. We don’t see the same profound and persistent socioeconomic disparities. Sexual orientation is also not generally obvious to casual observation in a commercial context, which as a practical matter makes exclusion more costly and labor intensive for the bigot. And while I’ve seen any number of claims that allowing private orientation discrimination would give rise to a new Jim Crow era, the fact is that such discrimination is already perfectly legal in most of the country, and it seems as though very few businesses are actually interested in pursuing such policies.
Rather, the actual cases we’ve been hearing about recently involve bigoted photographers or bakers—who run small businesses but are effectively acting as short-term employees—who balk at providing their services to gay couples who are planning weddings. (I take for granted that gay marriage should, of course, be legal everywhere.) What’s the balance of burdens in these cases? The discrimination involved here doesn’t plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I’d like for us all to pressure them to change those views—or at the very least shame them into changing their practices—if there turn out to be few enough of them that they’re not creating a systemic problem for gay citizens, it’s hard to see an interest sufficiently compelling to justify legal compulsion—especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn’t tell us how to balance their interest in expressive association against competing interests at this particular point in our history.
In a sense, bigotry in the economic realm is a bit like pollution: Whether a prohibition is justifiable—and how stringent the limits should be—will depend on whether enough people are doing it that you have an appreciable aggregate harm. We don’t just deem carbon emission an intrinsic wrong and categorically ban it—we recognize that industrial smokestacks are probably worth regulating fairly strictly, while banning fireplaces would limit individuals freedom to use their property more severely than can be justified by the public interest in avoiding the marginal ecological harm imposed, given levels of fireplace usage observed in the real world.
This is, of course, where it’s incumbent on me as a straight guy to check my privilege. (I checked; it’s still there.) Maybe I’m empirically wrong about the practical consequences of private discrimination—which it would be easy enough to be given that I’m not on the receiving end of this particular variety. Zack Beauchamp argues that there is, in fact, good reason to expect systemic harm. If that’s the case, it might still be worth considering where the harm of exclusion is serious enough to outweigh the interest in expressive economic association. It seems plausible the balance might come out differently for, say, medical clinics and supermarkets than for wedding photographers. In other cases—like hiring—it might be that the right balance is struck by a transparency mandate, where the worst harms are inflicted on people who absorb all the opportunity costs of taking a particular job, only to belatedly discover that heterosexuality was an undisclosed job requirement.
My point here, in case it wasn’t already clear, isn’t really to argue that laws barring sexual orientation discrimination are either justified or unjustified. I don’t have enough data to say. The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue. If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain—or in subsets of that domain—then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signalling our superior enlightenment and symbolic disapproval.
Like my friend Catherine, I have a lot of problems with the underlying messages about love embedded in the schmaltzy Christmas romcom Love, Actually, which for whatever reason lots of people seem to be writing about lately. I won’t rehearse my objections, because Catherine captures them pretty well. “Confessing your stalker crush on your best friend’s wife is sweet” and “They can’t speak a word to each other, but they’re in love—how romantic!” are the top two, and she lists quite a few more.
As Catherine notes, however, one of the overarching problems with the movie—the almost total lack of agency and general underdevelopment of the female characters—is sort of endemic to the genre rather than a specific sin of this film. One might object that it’s endemic to Hollywood films generally, but it does seem to call out for special explanation in a genre that’s traditionally aimed primarily at a female audience. Shouldn’t those movies, at least, give us more dynamic and fleshed-out women characters?
One hypothesis that occurred to me—and I’m probably recapitulating a well-worn idea from a critical literature I don’t know here*—is that the anti-feminist elements may, perversely, actually be part of the appeal, though for mainly formal reasons. Like many popular genres, the attraction of romcoms typically involves entering a fantasy space where you identify with one or more of the characters and share in their triumph—whether that involves beating the Nazis or finding true love. When the scenario itself is fantastic, the hero can be a bit more fleshed out, because we can imaginatively translate ourselves into a persona appropriate to the context. The viewers, in other words, can sort of delude themselves and think: “Ah yes, I’d behave just like James Bond in that counterfactual.”
When the character’s struggle is closer to home—the familiar search for a lasting romantic connection, most often set in the present day—the differences between the viewer and the character tend to be thrown into sharper relief, which means the characters need to be a bit more generic to enable the widest possible audience identification. And the lack of female agency is, in itself, part of the fantasy element: “I’m so desirable that I’ll be showered with love just for existing.” In a way this mirrors the way many fantasy heroes discover extraordinary powers that are part of an identity that had been obscured even from themelves (Harry Potter, Luke Skywalker, the X-Men) rather than setting out deliberately to acquire them. The ultimate wish-fulfillment is not imagining that you can become special through sustained effort, but to have it confirmed that you were special all along, as you always secretly suspected.
A romcom in which two characters find love because they are both interesting, clever, funny, accomplished, kind, confident, attractive—insert your favorite adjective here—and play equal parts in winning of the affection of the other would not only fail to scratch this itch, it would be depressing. We don’t go to movies to watch people more interesting, clever, funny etc etc than ourselves achieve love and happiness in a context very much like that of our real lives—that’s what we are watching in our real lives. We go to movies to be reassured that we can have those things without being transformed ourselves. The viewer-identification characters here, then, need to seem basically good and genial—we’re not going to project ourselves onto someone actively unlikable—but also bland and passive enough that they don’t leave us feeling like true love is for people with desirable characteristics we conspicuously lack.
If there’s something to this hypothesis, then, the women in movies like Love, Actually are just as underdeveloped and lacking in agency as women in (say) macho action movies, but for completely different reasons. In the male-targeted fantasy, women are essentially prizes to be won by the hero the male viewer identifies with. In the female-targeted fantasy, they’re equally ciphers because these are fundamentally not fantasies of self-transformation, which means the viewer-identification figure needs to be a vacuum anyone can step into as they already are. In movies about external goals, we can accept needing to become better in some way (through our onscreen surrogates) over the course of the film in order to achieve them. But people want to be loved for who they already are—to find the person who wants just what we already have, rather than becoming what the other person needs. That, in a way, is the most fantastical element: It is the external trappings of love without (at least for the character the viewer identifies with) the selflessness or transformative process that real love and real relationships—even more than Jedi training or a semester at Hogwarts—always entail.
Maybe. Or maybe—often the simple and obvious explanations are the right ones—it’s just that Hollywood screenwriters and directors are overwhelmingly male, and not very good at writing developed women with complex inner lives even when they’re making movies marketed to women. But it’s a theory.
*Update: OK, apparently the idea is sufficiently commonplace that I don’t need to go digging in the film crit literature; a comic at The Oatmeal will do.
Also, I should be clear that I don’t remotely mean to suggest by phrases like “female fantasy” or “male fantasy” that either type of film is somehow just responding to some kind of wholly independent demand that springs from the Essential Nature of either gender. To shamelessly paraphrase Zizek, before movies can give us what we desire, they need to teach us how to desire. But the process is self-replicating once it’s in place.
Like all wealthy countries, the United States has made a policy commitment to ensuring that everyone, regardless of income level, has access to enough food to sustain their health. One way we could make good on that commitment is by a system of compulsory food insurance: Everyone pays in, either via plans purchased on the individual market or through coverage employers are required to provide, and then you swipe your insurance card at the grocery store, and your insurance picks up the tab.
There are a bunch of obvious reasons this is not, in fact, the way we do things. The need to eat is not really a “risk” people need to “insure against.” Everyone needs to eat, and so the grocery bill is just a predictable, usually relatively stable, recurring expense. Second, while some bodies will need more food to sustain themselves than others—and there’s some minimum everyone’s going to have to spend on food to stay healthy—the cost, quality, and quantity of food people consume is also substantially a matter of individual choice and preference. You have foodies who devote substantial time, energy and money to culinary pleasures, and folks who keep a far more Spartan diet than they could afford.
So, of course, what we actually do is generally leave individuals with the responsibility of buying their own food, while providing subsidies of various sorts to the poor to ensure everyone is able to obtain some basic minimum, much as we do with necessities like housing or clothes. Many regard the current level of subsidy in the United States as inadequate, but that is no objection to the underlying structure of the arrangement, which seems to be widely accepted. Some expenses related to nutrition or diet are, of course, covered by insurance: Consultation with a doctor to identify medical conditions that may impose special dietary needs, or intravenous feeding for people who are either temporarily or persistently unable to consume ordinary food. But those cases provide no reason for covering routine food purchases on an insurance model.
The current debate over mandatory, no-copay contraceptive coverage under the Affordable Care Act is somewhat idiosyncratically focused on issues of religious conscience, and whether it is reasonable to compel employers with religious qualms about birth control (or certain forms of birth control) to directly underwrite it. That is surely a debate worth having on its own terms. But it strikes me as a bit odd that so little attention is given to the question of whether an insurance model really makes sense for contraception qua contraception—when it is not prescribed for some independent medical purpose.
There’s a dizzying array of condom brands and birth control pills, IUDs and long-term implants, surgical interventions, and so on, and people have an equally diverse array of reasons for preferring one option or another. Some people use one method or another of contraception pretty consistently throughout their adult lives, others only when they have chosen to be sexually active with a particular partner. While the costs of long-term birth control requiring surgery may be relatively high, the most popular forms typically involve regular, predictable expenditures within the means of the average person—costs which would doubtless be reduced if we sensibly allowed chemical birth control to be sold over the counter without prescription.
In short, birth control resembles food—surely a more vital health-related need—a whole lot more than it does the types of costly and unpredictable medical treatments that are the main reason for adopting an insurance model to pay for those types of healthcare. As a pure policy question, then, it seems more natural to adopt a similar model for contraception: Let everyone buy their own in accordance with their personal needs and preference, with subsidies for those below whatever income level we decide is appropriate.
The obvious reason we don’t do this, it seems to me, has very little do do with the policy merits and everything to do with politics. People who are opposed to mandatory contraceptive coverage are often simply opposed, on socially conservative or religious grounds, to contraception as such—or at any rate, to any government support for it. As with Social Security, the rationale for making coverage universal is a concern that a narrower means-tested program, though probably a better fit for the underlying policy goals, would not be politically viable over the long run. (“Programs for the poor,” as the saying goes, “tend to be poor programs.”) If conservatives were to accept the general desirability of guaranteeing broad access to contraception, it is hard to see any very compelling argument for using an insurance model to make good on that guarantee that would not apply at least as strongly to food, clothing, and housing—though I welcome any I may not have thought of in the comments.
So, first, I’m super flattered to have been included on Wired’s new “101 Signals” list of recommended writers on security and politics. As you may notice, however, I’m not writing all that frequently on those topics here on my personal site anymore. If you’re interested in that, therefore, you probably want to follow me on Twitter (where I usually link stuff I’m writing elsewhere) or check out my posts on the Cato Institute blog.
Second, as quite a few people have noticed, there’s an unfortunate paucity of women on the 101 signals list, which even leaving aside considerations of gender equity, left out many of the best writers and thinkers in this space. So, without any slight intended to the excellent resources flagged by Wired, let me suggest that if you’re coming here from that list, you’ll probably also find enormous value in the Women-in-Technology Twitter list maintained by formidable privacy & drones expert Amie Stepanovich.
Addendum: I note my own list is a bit melanin deficient; I tried to think of some women of color who regularly write for a popular audience on privacy/tech/surveillance/security issues and sadly came up short. So, again, suggestions welcome in the comments.
It was made of the magnetic tapes carrying millions of international telegrams, couriered daily to the NSA under Project SHAMROCK. And it was made of the computer punchcards, holding the names of American citizens on Project MINARET watchlists, so their communications could be filtered from those telegrams.
Its operating system was written in secret memos and directives that distorted the law and ignored Supreme Court decisions.
The machine was built to fight communism—but it was reprogrammed to fight democracy.
The machine was turned on labor unions and anti-war activists, on journalists and public officials, civil rights leaders and Supreme Court justices.
It was turned on Malcom X and Muhammad Ali, on Stokley Carmichael and H. Rap Brown, on Jane Fonda and I.F. Stone. It was turned above all on Martin Luther King, as the FBI waged a six year campaign to discredit and destroy him, so he could be replaced by what they called “the right kind of negro leader”—meaning one controlled by the FBI and the American intelligence community.
Democracy ultimately proved stronger than that machine—and in the late 1970s, we took steps to dismantle it. We imposed oversight, safeguards, and strict limitations designed to enforce the guarantees of our Constitution and restore the Fourth Amendment.
Decades later, time and fear had dulled those memories, and we began building a new and far more powerful machine—a machine as far beyond Hoover’s as an iPhone is past an abacus.
The new machine runs programs with names like BLARNEY and STELLAR WIND, PINWALE and PRISM—and the source code is still secret.
The old machine was large but limited. It could spy on the government’s “enemies”—but it couldn’t spy on everyone.
The new machine can. It is wired into the cell phones in our pockets, and the switches that route every Web site we read, and every e-mail we write.
And when this machine is reprogrammed in secret—when it is turned against us, whether out of panic or malice, by the next officials who can’t distinguish a national security threat from a threat to the status quo—there may not be anywhere left for us to hide.
There’s a time when the operation of the machine becomes so odious, makes you so sick at heart that you can’t take part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus — and you’ve got to make it stop!
Well, it is that time again. It is time for us to put our bodies on the gears and make this machine stop. It is time to restore the Fourth Amendment.
A brief, slightly confusing exchange between Rep. Jerrold Nadler and FBI director Robert Mueller at a hearing this week is stirring up a lot of fuss, as C-NET reports (and The Hill repeats) that it reveals an NSA admission that analysts sifting through metadata can, without further court authorization, listen to calls or read e-mails:
First, let me suggest that nobody go too nuts with this just yet: This is a two minute exchange referencing an earlier classified briefing, and the parties to it haven’t responded to requests for comment yet. That said, let’s try to figure out what’s going on.
One possibility is just that Rep. Nadler is talking about analysts having discretion to get the subscriberinformation on a suspicious number and blurring that with content. But those are two pretty different things, and it seems unlikely he’d make that error. So let’s assume for a moment that’s not it.
What seems more likely is that Nadler is saying analysts sifting through metadata have the discretion to determine (on the basis of what they’re seeing in the metadata) that a particular phone number or e-mail account satisfies the conditions of one of the broad authorizations for electronic surveillance under §702 of the FISA Amendments Act. Those authorizations allow the targeting of whole groups or “categories of intelligence targets,” as the administration puts it. Once the FISA Court approves targeting procedures, they have no further role in deciding which specific accounts can be spied on. This is, as those of us who wrote about the FAA during its recent reauthorization observed, kind of a problem.
Legally speaking, the analysts don’t have carte blanche. In other words, this isn’t “warrantless wiretapping” so much as “general warrant wiretapping.” They can’t just tap any old call or read any old e-mail they strikes them as “suspicious.” They’ve got to be flagging content for interception because they believe it’s covered by a particular §702 authorization, and observe whatever “targeting procedures” the FISA Court has established for the relevant authorization. They can’t “intentionally” intercept any calls or Internet communications that are “known at the time of acquisition” to be totally domestic. But then, what an analyst “knows at the time of acquisition” may be pretty hard to determine, unless they clearly should have been able to determine from the metadata that all ends were located in the United States. Often, especially for Internet communications, that won’t necessarily be so.
Also, the “target” of the acquisition has to be “believed to be” outside the United States. But there’s some ambiguity about exactly what that “targeting” limitation means. That is, it’s not clear whether the phone or e-mail user you’re spying on must be outside the United States, or whether it’s enough that you are seeking information about a group primarily located overseas. I’ll assume the former, more restrictive case for now: The analyst must believe that one end of the communication is outside the United States, and flag that account or phone line for collection. Note that even if the real target is the domestic phone number, an analyst working from the metadatabase wouldn’t have a name, just a number. That means there’s no “particular, known US person,” which ensures that the §702 ban on “reverse targeting” is, pretty much by definition, not violated.
None of that would be too surprising in principle: That’s the whole point of §702! It means analysts get discretion to decide what particular accounts fall under a very broad order. A key question, of course, is just what the checks in the process are. Can an analyst technically (if not legally) plug in any selector to start collecting on and just start getting material? Does anyone check their work before call and e-mail content starts flowing in? How closely are their error rates checked after it does? Again, legally, they don’t have a blank check, but it’s the details of the system architecture that determine whether you’d be able to tell the difference in practice.
Anyway, creepy as this all may sound, it’s not exactly a new revelation if Nadler is indeed talking about authority to collect content under §702, though the potential for error seems greater if the basis for acquisition is literally nothing more than a “suspicious pattern” culled from metadata. In theory, the system could be flagging calls and e-mails for interception almost automatically (like GMail deciding what to flag as “important’), with the analyst occasionally checking off an “OK” box.
Still, this is more or less what the FISA Amendments Act was designed to do. Shame people didn’t freak out to this extent at the end of 2012, when Congress voted for five more years of it.