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My Restore the Fourth Rally Speech

July 8th, 2013 · 105 Comments

The good folks at the Montgomery County Civil Rights Coalition captured video of my speech at the Fourth of July “Restore the Fourth Amendment” rally in DC’s McPherson Square:

Here’s the text I scribbled in a notebook before I got up. The gist is the same, but this is a somewhat more polished version:

At the dawn of the Cold War, America’s intelligence agencies began constructing a vast surveillance machine. It was a machine with many parts, and a codename for each program it ran.

It was a machine made of copper wire twisted around switchboard terminals, and microphones installed covertly in homes and offices. It was made from COINTELPRO‘s human informants, and from manila envelopes marked JUNE MAIL bound for J. Edgar Hoover’s “Personal & Confidential” file.

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.

This machine is built from the fiber-optic cables leading into secret rooms in telecom offices, where sophisticated “semantic analyzers” filter all our Internet traffic.  It’s built from the multi-billion terabyte servers at the massive storage facility the NSA is constructing in Utah.

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.

One of the targets of the old machine was the Berkeley Free Speech movement. And one one of their student leaders, Mario Savio, gave a famous speech in 1964, where he said:

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.

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Nadler and Mueller on Analysts Getting Call and E-mail Content

June 15th, 2013 · 28 Comments

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 subscriber information 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.

 

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That’s a Glomar!

May 21st, 2013 · 53 Comments

A little ditty I wrote for frustrated journalists, activists, and academics to sing while tangling with our beloved, Byzantine Freedom of Information Act process—to the tune of “That’s Amore,” of course:

When your FOIA reply
Can’t confirm or deny
That’s a Glomar! (That’s a Glomar!)

When you need x-ray spex
To read your Vaughn Index
That’s a Glomar! (That’s a Glomar!)

At this rate seems you gotta litigate with the state
And you’ll hate the procedures protracted

Then you’ll cry when they finally comply with a sigh
And supply… docs entirely redacted.

When “state secrets” are a host
Of facts published in the Post
That’s a Glomar! (That’s a Glomar!)

When exemption 7(e)
Covers everything you wanna see
That’s… the gov!

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FISA: The Movie

January 3rd, 2013 · 3 Comments

So what the hell happened with the FISA Amendments Act over the holidays?  I made a short video for Cato explaining it.

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The Wall Street Journal’s Misleading Celebration of NSA Spying

January 2nd, 2013 · 7 Comments

The FISA Amendments Act has been extended, without amendment, for another five years—and The Wall Street Journal is delighted:

Well, not everything President Obama and the 112th Congress managed to achieve is so terrible. With scarcely any notice, much less controversy, they did at least preserve one of the country’s most important post-9/11 antiterror tools.

One wonders just what their basis could be for the claim that warrantless wiretapping has been “one of the country’s most important post-9/11 anti terror tools.”  After all, a comprehensive audit by the intelligence community’s own Inspectors General found exactly the opposite: That the program launched by President Bush was of no greater value than other intelligence tools; that it generated an enormous number of false leads that wasted time and resources; and that, indeed, it was difficult for intelligence officials to point to a single clear cut case where the program made a crucial contribution to a counterterror success. Much about that program remains secret, of course, but the Journal‘s assertion here is contradicted by the public evidence.

That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.

Perhaps we shouldn’t be shocked that a publication owned by Rupert Murdoch would be inclined to make light of concerns about illegal wiretapping, but surely it’s not that mysterious why someone might be more comfortable with a duly authorized surveillance statute that preserves a role for the courts, however anemic and symbolic, than with a president’s unilateral decision to simply ignore federal law and bypass the courts entirely.  Still, they do have a point: Substantively the FISA Amendments Act is at least arguably more problematic than the Bush program, because the surveillance programs it authorizes are potentially much more sweeping than Bush’s was, at least on the basis of public reporting. And it really is telling that many people who expressed outrage over the Bush program seem totally uninterested in scrutinizing the track record of its successor now that we have a Democrat in the White House.

In September the House passed the “clean” five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky’s Rand Paul.

Like the Heritage Foundation, the Journal‘s editors conspicuously fail to mention what these “absolutist” amendments proposed.  These included such radical proposals as an amendment to publish declassified summaries of major court interpretations of the law, unless it would harm national security to do so, on the wacky absolutist premise that Americans ought not to live under secret law.  There was also the nutty fringe suggestion that Congress ought to have some idea of roughly how many Americans the NSA is spying on, and that a surveillance program theoretically aimed at foreigners should not be exploited to deliberately circumvent Fourth Amendment protections for citizens’ communications.  What’s really remarkable is that the defeated amendments were about as far from “absolutist” as you can get, and still went down in flames.

This is a turnabout from 2007 and 2008, when letting U.S. spooks read al Qaeda emails or listen in on phone calls that passed through domestic switching networks supposedly spelled doom for the American Republic.

This is just not an accurate description of what the law permits. The programmatic surveillance authorized by the FAA is not limited to “al Qaeda e-mails,” or to the communications of terrorists; the “target” of surveillance can be any foreign group or individual, and the “target” need not actually be a party to the intercepted communications. Nor is it limited to communications that merely “pass through” domestic switching networks: Calls or e-mails sent and received by American citizens are also fair game. If the original Bush program is any guide, enormous numbers of entirely innocent communications are almost certainly being swept up in the process.

Hypocrisy aside, the irony is that the imperfect 2008 deal could have stood a little scrutiny. The concessions Mr. Bush was forced to make inserted the special FISA court into the wartime chain of command, requiring the national security agencies in most cases to get judicial permission to eavesdrop on even foreign enemies. We still don’t know if this new regime has compromised U.S. intelligence gathering.

This is also false. The law has never required court approval to eavesdrop on communications  when both parties were known to be foreigners, and it still doesn’t. The vast majority of the NSA’s signals intelligence activities remain completely unregulated by FISA. The FISA Amendments Act covers wire communications between Americans and foreigners—which previously required far more rigorous individualized warrants if the wiretap was conducted in the United States—as well as cases where the location of one party to a communication can’t be determined in advance (as is often the case with e-mail). The latter presented a genuine problem that could and should have been solved far, far more narrowly. The FISA court’s minimal involvement in the FAA process—which is limited to rubber stamping broad “targeting procedures” developed by NSA—falls fall short of the traditional warrant approval process, and the idea that it could have “compromised U.S. intelligence gathering” seems frankly absurd.

If the “Imperial Presidency” is only imperial when the President is a Republican, at least that doesn’t represent a real political conviction, merely naked partisanship.

On this point, at least, the Journal is entirely correct: It is sad to see so many Democrats shed their concerns about executive surveillance powers—historically abused by presidents of both parties—now that their bête noire has left office. And with the FAA extended for five more years, Obama too is likely to be long gone before we have another occasion to debate the wisdom of these powers.

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Your Television, I Am On It

January 2nd, 2013 · 31 Comments

As a general rule, going on television reminds me why I’ve chosen a career in print, but between the reauthorization of the FISA Amendments Act and the David Petraeus scandal, I’ve nevertheless ended up making a handful of small-screen appearances in the past couple months. For those of you who are into that sort of thing, here are the clips.

I talked about the reauthorization of the FISA Amendments Act on the December 28 Rachel Maddow Show, with Ezra Klein guest hosting:

Earlier the same day, I made a cameo in CNN’s story about the reauthorization:

Back in November, I was part of the roundtable on the Chris Hayes Show (transcript) discussing the Petraeus scandal and e-mail privacy:

And finally, I did a full 45 minutes on C-SPAN’s Washington Journal fielding questions about the state of electronic privacy law:

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Highlights from Last Week’s Surveillance Debate

January 2nd, 2013 · 2 Comments

I’ve just had a chance to play around with C-SPAN’s clip-and-share functionality from its video archives, which seems like a pretty great tool for wonks like me who actually pay attention to stuff like last week’s marathon Senate debate over the reauthorization of the FISA Amendments Act, which President Obama signed on Sunday evening. With the Fiscal Cliff firmly lodged in the headlines, most news media paid scant attention to the reauthorization—though the Rachel Maddow Show did have me on to talk about it. Now, at least, C-SPAN has made it relatively easy to assemble the important points from these legislative debates without spending hours fussing with video editing software. This strikes me as having great potential to enable crowdsourced efforts to draw attention to undercovered stories in an engaging format.  So here are what I saw as some important moments from the FISA debate—mostly legislators proposing some extremely mild, common-sense reforms and safeguards that all got shot down.

Sen. Ron Wyden explains that the FISA Amendments Act isn’t just about foreigners, as supporters ritually claim, but can easily result in large-scale interception of Americans’ communications as well:

[Read more →]

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Encrypting Google: A Quick Reply to Ed Felten

December 18th, 2012 · 12 Comments

Over the weekend, I had a piece at Ars Technica urging Google to roll out end-to-end encryption for Gmail, allowing hundreds of millions of ordinary users to enjoy the level of privacy now largely reserved for paranoid ubergeeks. I tried to address some of the obvious economic reasons Google might be hesitant to do this, but as Princeton’s Ed Felten points out, there are important technical questions as well:

First, how would the crypto keys and crypto code be managed? […] To start with, we would need a place to store your private key. We could store it on your desktop, but this would conflict with the usual cloud model that gives you access from multiple devices. We could have Google store your private key for you, then download it to whatever device you’re using at the moment, but then what’s the point of encrypting your messages against Google? The best solution is to have Google store your private key, but encrypt your private key using a password that only you know. Then Google would download your encrypted private key to your device, you would enter your password, and the private key would be decrypted on the device.

This is pretty much how I’d imagined it working for the average user, but there’s no real reason we need a one-size-fits-all solution here; lots of cloud services that offer encryption let the user choose whether or not to let the provider keep a backup copy of the user’s keys. The more paranoid could sacrifice some mobility and convenience—and risk losing access to some of their messages if their local copies of the key are destroyed—by opting not to let Google keep even an encrypted copy of their key. Or, as a middle ground, a user could always store an encrypted backup copy of her key with a different cloud provider, like Dropbox, which need not even be known to Google. That provides all of the advantages of storing the key with Google at a relatively minor cost in added hassle, but substantially raises costs for any attacker, who now must not only crack the passphrase protecting the key, but figure out where in the cloud that key is located. Assuming it’s accessed relatively infrequently (most of us read our e-mail on the same handful of devices most of the time) even a governmental attacker with subpoena power and access to IP logs is likely to be stymied, especially if the user is also employing traffic-masking tools like Tor

The next problem we would have to solve is how to do cryptography in the browser. A service like GMail has to run on lots of different devices with differently abled browsers. Presumably the cryptographic operations–including time-consuming public-key crypto operations–would have to be done in the browser, using the browser’s Javascript engine, which will be slow. It would be nice if there were a standardized API for in-browser crypto, but that doesn’t exist yet, and even when it does exist it will take a long time to be deployed so widely that a public service like GMail can rely in it being present on all devices.

What is most problematic is that the software code to do all of this–to manage your keys, decrypt messages, and so on–would itself be written and delivered by Google, which means that Google would, after all, have the ability to see your messages, simply by sending you code that silently uploaded your keys and/or data. So if your goal is to make it impossible for Google to see your messages, for the protection of you and/or Google, then you won’t have achieved that goal. […] The only solution we know is to acquire the secure functionality by a traditional download, incorporating carefully vetted code that cannot be modified or updated without user control. The code might be provided as a standalone app, or as a browser extension. We could do that for GMail (and at least one company has done it), but that would give up some of the portability that makes the cloud email attractive.

I think the speed issue is probably not that big a deal on newish devices, and will only become less of an issue, but for some of the other reasons Ed cites, the preferable way to do this is with dedicated client software. This does create some sacrifice in terms of portability, but frankly if you’re really concerned about secure communications you probably don’t want to be decrypting your sensitive messages on untrusted devices anyway. Also, as I note in the piece, this is where Google has an advantage as the distributor of a widely-used open source operating system and browser. The relevant functionality could come bundled with Chrome and/or Android (and serve as a selling point for both) as well as being offered as a separate plugin for other browsers (or bundled with Google’s widely-installed voice/video chat plugin). Users could still, of course, access their unencrypted webmail from any old browser, but one imagines that if Google leads the way, other developers will have a strong incentive to make their own software compatible.

The second major issue is how to keep messages secret while still providing GMail features that rely on Google seeing your messages. These features include spam filtering (which you couldn’t live without) and the content-based ads that Google shows next to your messages (which Google probably wouldn’t want to live without). Can these be provided without leaking the full content of messages to Google? I suspect the answer is a qualified yes–that pretty good versions of these features could be provided in a more privacy-friendly way–but that’s a topic for another day.

Add to these issues that encrypted messages won’t be searchable (unless stored locally as plaintext), which is a bit of an inconvenience, but probably not a dealbreaker. You can probably still do a good deal of spam filtering just using metadata, and it helps that most users will generally be trading encrypted messages with friends and contacts. Users might even elect to only get such messages from “buddies,” whitelisted addresses, or (more permissively) other Gmail users, which would make encrypted e-mail within the service a little bit more akin to Facebook or Gchat messaging. At least initially, it probably makes sense to have this be the default, and users who really need to get encrypted messages from random, unapproved senders they’ve never interacted with before can tweak their settings to let those messages through.

As for content ads, well, that’s the million dollar question—and as Vint Cerf has candidly acknowledged, a primary reason Google hasn’t already done this. My answer here is the same as it was in the article: First, most people are still going to exchange a lot of unencrypted messages, and Google can still serve keyword ads based on those. Second, Google recently revised its policies to allow sharing of user information between its disparate services, provoking some grumbles from privacy folks. That means they’ve got a hell of a lot of other data to draw on in determining what ads are likely to be relevant to a particular e-mail user, from search history to favorite YouTubes, which I’d actually expect to be substantially more useful for tailoring ads than e-mail keywords. Also, at least initially, using the encryption feature will probably mean logging directly into your Google account via their Web interface (where Google gets to show you ads) rather than simply reading your messages in an ordinary mail client (where they don’t). So the loss of one kind of targeting data from some messages has to be balanced against the probable increase in ad exposures. It’s up to Google’s accountants to figure out how that all nets out, but these considerations seem like a good prima facie reason to at least run the numbers if they haven’t done it recently.

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A Method to their Mathlessness

November 7th, 2012 · 22 Comments

I’ll confess, while not particularly invested in the outcome of the presidential race, I shared the amusement of my Democratic friends watching staunch conservative pundits doing their best impression of the former Iraqi information minister in the weeks before the election. We saw a string of prominent conservatives confidently projecting landslide victories for Mitt Romney, and waving aside all the (as we now know, highly accurate) statistical models projecting a solid Obama win on the grounds that “all the vibrations are right” for Republicans. That said, given the role that partisan pundits play, I can’t really say they were wrong to do so. Indeed, the next time the best available models project a clear Republican win, their Democratic counterparts would probably be wise to do at least a little bit of the same thing, and gin up reasons (however spurious) to think the polls got it wrong this time.

Ideally, professional pollsters have no particular agenda beyond accurately forecasting the outcome of a race. But pundits are trying to influence outcomes, and forecasts don’t just predict outcomes, but at least partially help to determine them. There’s plenty of social psychology literature showing bandwagon effects in elections: Voters on the fence often pick the candidate they expect to triumph anyway, because it’s nice to be on the winning side. Campaign workers become demoralized if they think they’re laboring those long hours for a hopeless cause. A 20 percent chance of victory is still a chance, after all, and you don’t want people throwing in the towel prematurely. Here as in many areas of life, when the odds are heavily against you, being a perfectly accurate assessor of your chances can actually make the odds worse. If you are rational, you will want to have some irrational beliefs. So I don’t expect supporters of a candidate who’s unlikely to win on election eve to acknowledge this, any more than I expect the coach of an underdog team to deliver out an honest read of the stats as a pre-game pep talk. We don’t make fun of coaches for this, because we all understand they’re engaged in a bit of socially appropriate bullshitting.

Which is all well and good when it’s just the pep talk—especially on election eve, when it’s too late to alter a losing strategy. The danger, of course, comes when the coaches start believing their own pep-talks—or as Chris Hayes (channeling Biggie) puts it, when you’re actually so high on your own supply that you start rejecting negative information generally, even when adaptation is still an option. One contributor to this is surely the epistemic bubble created by an increasingly complex, interconnected, and self-sufficient conservative media ecosystem. But there are other factors that probably increase the tendency too.

Pundits are most often, at least initially, writers—which is to say, storytellers. So when polls were less frequent, less accurate, and less widely disseminated, it wasn’t much trouble to weave a story about how polling that looks bad for your team has failed to capture some ineffable factor (“the soul… is not so easily number-crunched“) or was conducted too early to account for some supposedly game-changing news story like Benghazi. A compelling storyteller might even feel free to ignore the polls altogether.

Now, though, we’ve got a larger array of polls, as well as increasingly sophisticated tools for aggregating and weighting them in statistical models that can also factor in external data about things like economic performance. Our predictive tools are better, and our media environment guarantees that the outcomes they project will get wide circulation well in advance of the election. A decade ago, it would have seemed bizarre for a statistician to be one of the most controversial and high-profile figures of a presidential campaign, partly because nobody would have found it plausible that race polling roughly even nationally could be called for one candidate at a high degree of confidence weeks in advance. Even if it could, a political media dominated by a few networks and major papers would have found it convenient to give those projections less attention and play up the sexier “dead heat” narrative. Players’ morale aside, nobody much wants to watch a game whose winner is a foregone conclusion either. Ignoring and slapdash storytelling aren’t really viable options anymore.

The thing about pep-talks, especially when you’re not hearing them live from a charismatic speaker in a small room full of comrades, is that they don’t work nearly as well if they’re obviously just pep talks. It is rational to have some irrational beliefs, but it’s more or less definitive of belief that you can’t consciously recognize it as irrational while you hold it. So in an age of modeling, a little offhand bullshit no longer cuts it: Now you need elaborate counter-models, a-la UnskewedPolls, or at least some more facially compelling argument for why all the models are systematically biased and untrustworthy. What was once the self-contained rational irrationality of a few election eve beliefs metastasizes and builds its own supporting superstructure, in much the same way as one lie can give rise to a whole elaborate network of lies designed to cover it. Or, for the logicians, the way the principle of explosion dictates that a set of propositions containing a single contradiction can spawn an infinity of falsehoods. At some point, the cost of this cognitive infection becomes too high, and a bit of rational irrationality becomes plain old irrational. The belief system you have to sustain to maintain your election-day optimism becomes an obstacle to strategic adaptation that might actually justify that optimism.

A resounding electoral defeat focuses the mind wonderfully, though, and while no doubt we’ll see the most thoroughly embubbled floating dark speculations of some massive conspiracy to rig the election, conservatives who don’t like losing are probably going to get a lot less dismissive of statistical modeling pretty quickly. Mocking the scientists is all fun and games when it’s abstract evolutionary theory, but most people don’t want to refuse lifesaving biotechnology. They may also become somewhat more skeptical of large swaths of the conservative media ecosystem whose primary function is not, in fact, to achieve electoral victories, but to attract eyeballs and extract revenue from conservative audiences. Those goals aren’t necessarily complementary: Ideological publications often do better when the other side is on the ascendant.

In the longer term—notwithstanding the massive and massively daunting security and anonymity challenges it poses—the real solution to this tension (and the ludicrous lines at polling places around the country) is an Internet voting system that lets every citizen with a modern phone—or just access to a public library—cast (and change) their ballot anytime between the conventions and “election day” as easily as they’d update a Facebook status or Instagram a kitten. The results probably become obvious a lot quicker—with a bit of volatility as groups voters decide they can individually afford a third-party protest vote, then realize that collectively they can’t—but the cost of action falls so low that morale concerns are far less significant. And on election night, my journalist friends can all begin drinking much earlier.

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Third Parties and the Moral Logic of Voting

October 31st, 2012 · 15 Comments

Yglesias takes aim at a familiar genre of argument for voting for a third party:

I’ve noticed that various anti-Obama pro-third-party arguments on the Internet proceed with an annoying two step. Usually the headline and the lede of the piece will be very focused on Obama, the evils of Obama, and the braindeadness of the Obamabots but then the argument will employ as a lemma something like it doesn’t matter who you vote for because your vote won’t make a difference anyway. I think that math is more contestable than people often realize but whatever you make of it, if your argument is that it doesn’t matter who you vote for then that’s an argument about voting not an argument about Obama. If it’s true that you shouldn’t feel constrained to choose a major party candidate on the grounds that your vote won’t swing the outcome anyway, then the exact same conclusion would hold even if Obama had cracked down on banks much harder or never bombed a soul or delivered single payer health care or whatever you like. The argument may be correct, but it’s an argument about an entirely different subject.

I also think that as an argument written for public consumption on a well-traffic blog or website (as opposed to simply offered over drinks at the bar) it’s an illegitimate form of argument.

“Why I’m Voting For Jill Stein” or “Why I’m Voting For Gary Johnson” is, qua article, an effort to persuade other people to do the same thing. A persuasive argument that takes as one of its premises its own failure to persuade is inherently problematic.

I don’t think this works. Consider the type of thought experiment you sometimes encounter in ethics: There are two groups of people in danger: Group A consists of 100 people who will die unless a rescue effort involving at least five rescuers is mounted, while Group B consists of 10 people in the same situation. Each potential rescuer can only join one effort. If you think you’re likely to be the marginal fifth rescuer, or are advising that person on what to do, then it seems pretty clear that (other things equal) you ought to join the mission to rescue Group A and advise others to do the same. (To make this more precisely analogous to voting, we should probably make the required mission sizes large enough that any individual is highly unlikely to make the marginal difference between success and failure, and also assume that we want people to engage in some degree of moral generalization lest everyone stay home. But let’s start simple.)

If everyone were certain to follow the rule of action you stipulated for this case, and there were no coordination or information about what others were doing, you’d similarly select the rule that says you should try to help Group A. However—and this is where the crudest form of a Kantian universalization test breaks down—it also makes sense to factor in what others are realistically doing, because ideally you’d like to see both objectives accomplished, and 110 people saved rather than just 100. If, for example, you see many dozens of people already mobilizing to save Group A, while only one or two are headed for Group B, what you ought morally to do is (again, I think pretty clearly) join the mission to save Group B and call for others to do likewise, provided that it is sufficiently improbable that you will persuade so many people that the initially oversubscribed mission to save Group A now fails.

Now, it’s true that this argument would have to “take as one of its premises its own failure to persuade.” If you knew that everyone would follow your advice—and there were no way to reliably coordinate the numbers in advance—then you would have to call for everyone to help Group A, sadly resulting in the death of the 10 who might otherwise have been saved. (Well, what you’d really do for a sufficiently large group is tell everyone to roll a die and join the B mission iff they roll a 6, and otherwise join the A mission, but again, let’s bracket that for the sake of simplicity.) This would be a highly unfortunate outcome!

Yet in the real world, we can often predict with great confidence that we will not persuade literally everyone to follow our course of action. It may, rather, be highly probable that we will persuade enough to make the mission to rescue Group B successful without any realistic risk of drawing off so many people that the effort to rescue Group A now fails. To be sure, in this case, the argument for publicly advocating that people join the B mission does take as one of its own premises the assumption that this advocacy will not be perfectly persuasive. But if that premise is true, and known at a very high level of certainty to be true, then this is not actually “problematic”: It is what allows all 110 people to be saved instead of only 100! Now, obviously, if you’ve calculated your probabilities wrong, you can imagine such a choice backfiring badly, but in the real world every aspect of the decision process (including the projected consequences of mounting each mission) is ultimately probabilistic, and you’ve got to make the choice you think will do the most good given the information available. So we can quibble about the numbers, but there are surely probability ranges in which it’s clear that what you morally ought to do is advocate that people join the B mission, or to heed that call given your knowledge about what others are likely to do.

Now add back in the consideration we left out for simplicity’s sake at the start. Suppose there are enough public spirited people around that even if you don’t join either mission, it’s almost certain that enough others will to make either mission succeed. In this case, you need not stir yourself at all to achieve the desired outcome—though this is only the case because most others don’t reason in this way. Most of us, I will assume, think that a decent person will often (though perhaps not in every instance) resist this apathetic logic as a kind of moral free riding that depends on others behaving differently. But it does not follow at all that, having accepted a duty not to engage in such free-riding, we must all collectively commit to ignoring considerations of marginal benefit entirely, so that Group B is always allowed to die. If you’re at all tempted to endorse this perverse scenario, it’s a good sign something has gone badly wrong with your moral reasoning.

The analogy to the voting situation should be obvious, but just to spell it out: Let’s assume there’s a pool of writers and voters whose first priority—call it Objective A—is that the major party candidate they regard as least bad wins. Because their less-bad candidate is still quite bad on a number of issues, however, they would also like to achieve Objective B: An unexpectedly strong electoral showing for a third-party candidate (perhaps their first preference in an ideal world, but with no realistic chance of victory) who is a vocal critic of the less-bad candidate on these very issues, and whose success at the polls may help focus attention on those issues, and minimize the impression of an overwhelming mandate for the victorious less-bad candidate. Here, again, we can quibble about the relevant numbers and probability ranges, but it seems pretty clear that there are highly plausible fact patterns under which, given well-founded beliefs about what others are likely to do, what one ought to do in order to achieve both objectives is advocate (or cast) a third-party vote.

Moreover, Yglesias glosses over the extent to which the argument for an Obama or Romney vote also depends on the very considerations he thinks are irrelevant when deployed to support a third-party vote. What, after all, is the argument for choosing between Romney and Obama if you actually believe Johnson or Stein would make the best president? Obviously it’s that your first choice can’t actually win, given what we know about how other people are likely to vote—which is just another way of saying that your individual vote (or, for a writer, the pool of people whose votes you’re likely to be able to influence) will not make the difference between victory and defeat for your most preferred candidate. The writer who’d actually prefer Stein or Johnson but makes the case for holding your nose and casting a pragmatic vote for the “lesser evil” major party candidate is also taking as a key premise the imperfect persuasiveness of his own argument—otherwise he’d be arguing for his first preference—but Yglesias clearly doesn’t find reliance on this premise “problematic” in such cases.

Against this background, perhaps we can say something about the link between the two types of arguments Yglesias identifies, and why they’re not really about “entirely different subjects.” Implicit in the case Yglesias makes is the notion that the “your vote won’t make the difference” argument is really an argument against voting at all, and that someone who’s prepared to cast a ballot for some candidate or another must already be prepared to reject that argument. So let’s consider some grounds on which people might do so.

One possible rationale is utilitarian: Even if the probability of casting a decisive vote is vanishingly tiny, it is not zero, and so has to be multiplied by the difference in social welfare that would accrue if it were decisive in order to yield an expected social value for the action. I won’t say much about this argument, mostly because I doubt that it’s what actually motivates anyone but Derek Parfit.

Another potential rationale is that people see voting as having expressive and symbolic value even when they’re sure it won’t be decisive. People with opposing political views, who know their votes will simply cancel each other out, could just make a friendly agreement to both stay home and save themselves the time and trouble—which would take care of the probabilistic utilitarian argument—but very few people actually do this, suggesting that most voters see a value to the act of voting beyond any possible effect on the outcome. Yet surely the symbolic and expressive value of voting depends in part on our not thinking of it as purely symbolic, but as a constituent of the process by which we together really do determine our shared political fate.

That brings us to what we might call the “folk Kantian” line of reasoning—also known as “what if everyone did that?”—which undergirds a lot of common-sense morality: Yes, it might not ultimately make a difference whether I individually vote (or litter, or keep a vegetarian diet), but if everyone reasoned that way, the system would fail to all our detriment. So we internalize a kind of moralized collective rationality: We each act in the way that it would be morally best for all rather than none of us who are relevantly similarly situated to act, even if it would be no worse morally (and perhaps even somewhat better individually) for some subset of us to defect.

The trick, of course—and one of the notorious difficulties in applying Kant’s test of universalizability—is figuring out who are the members of the “relevantly similarly situated” group following a rule of action at a given level of specificity. As the Rescue hypothetical (and common sense) shows, we often don’t want every member of humanity, or even a particular society, doing literally the same action, but rather to act according to a rule they’d want generalized across some relevant social subgroup. Yglesias, for example, doesn’t want people with the preference ordering {(1) Johnson, (2) Obama, (3) Romney} to vote in the way they’d will all Americans to vote, but rather to take into account the certainty that most Americans won’t vote that way, and instead act in the way they wish the subset who prefer Obama to Romney would vote given that the very large subgroup who prefer Romney to Obama will be doing the same.

This, I think, is the link Yglesias is missing between the “problems with Obama” thread of the argument and the “won’t be decisive” thread, which doesn’t just apply individually, but at least in certain states also collectively, to the subgroup who might be motivated to cast a protest vote in light of their strong reservations about Obama. It’s true that if someone accepts the “won’t be decisive’ thread as dispositive at the individual level, that’s an argument about voting as such. But the “problems with Obama” argument is actually doing double duty here: Yes, it’s an argument for why the reader should not want to signal unqualified support for Obama, should want dissenting voices to do well at the polls, and so on. But it’s also an attempt to construct an imagined community over which individuals generalize when they decide on a rule of action: The social subgroup of people for whom these concerns are especially salient, whose collective votes (unlike an individual vote) might well have significant signalling value without altering the outcome of the two-party contest. Yglesias can challenge the empirical, mathematical premises of this argument if he wants—and he does that too, in passing—but he can’t reject it as formally incoherent without implicitly indicting the case for a major-party vote in the same breath.

Addendum: Henry Farrell reminds me that Daniel “D-Squared” Davies, in a 2010 Crooked Timber post, made essentially the same point about the tension between folk-Kantian and instrumentalist arguments for casting a major-party ballot.

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