Recently in Transparency vs. Privacy Category

I try not to do a lot of "business of real estate" posts. That's not what I'm about. But I figure that we (as agents) have got about a year to save the profession from the traditional brokerages that control the National Association of Realtors.

Last night I attended a session of the San Diego Weblogging group. Being the only non-techie present, when real estate came up they were willing to be quite upfront about their reactions to real estate. When I said "everything is a matter of public record," in a different context, the entire group went off on me about NAR's policy of attempting to control information chokepoints via MLS and limiting what information IDX is allowed to display.

(For those who were present last night, I want to emphasize in no uncertain terms that the your reaction was a good thing from my point of view. I knew intellectually what the public thought about this policy, while not having precisely this sort of eye opening experience about how strong those feelings were. But having the cover of the group and a lone agent to target, you folks felt comfortable displaying exactly what you thought of this policy to that agent: me. The shortsighted reaction would be to get angry and offended and leave. The intelligent reaction is to thank you for providing concrete perspective on something I already knew intellectually, because I am grateful for you all completely clearing the air, and I'm glad it happened.)

For those who weren't present, this is a group of very bright, very intelligent people. It's only small fraction of the number of such people here locally. All over the country are similar groups of very bright, very intelligent people. They've got brains, they've got know-how, they've got marketing expertise and access to venture capital. It is only a matter of time before some group of them figures out how to defeat any MLS monopoly of listing information. Not that there's much of one right now, where MLS information goes out complete to IDX providers and parts are only censored to the general public because it's in the license. But eventually, what shreds of information monopoly are left will be gone. The only thing that needs to remain restricted is, as we all agreed, the showing instructions. Things like lockbox combos and when people are not going to be home so the criminal element can't cart their stuff off. CBB? It's valid information on the state of their agent's mind for buyers. Show it. Contact phone for showing? Show it. Days on market? Definitely show it.

One of the people that was present works for a large IDX provider. We had a good conversation about how even the traditional brokerages are loosening information flow in the name of selling real estate right now. We agreed that it was likely that there will be attempts to re-tighten this control in the future, but that those attempts are going to flat-out fail.

Now, let me tell you something else: While these folks were vehemently hostile to the notion peddled by the traditional minded brokerage controlling market access, they were quite open and responsive to the notion of the expert consultant.

Unfortunately, these folks were all previously unacquainted with that business model. There's a lot of misinformation and disinformation out there about the business of real estate agency. A lot of it's written by people outside the business who want a piece of the action, to encourage an agenda that gives them a piece of the action. The experiences of these folks leads them to be deeply suspicious of large corporations and large organizations with a profit motive.

NAR, for their part, is playing straight into the hands of these people outside the business who want a piece of the action. The entire "controlling market access and information chokepoints" message is anathema to these folks. It tells them that agents and their organizations aren't to be trusted, it tells them that our entire business model is based upon making money by constraining people to come to us. What happens when that constraint vanishes? I guarantee that it will vanish. If not this year, than next year or the year after. Precisely when isn't important. It's coming, and probably sooner than you - or I - think. Agents can decide to anticipate this event as a group, and prosper, or lose almost the entire market when it does happen.

Let's look at the basic inalienable facts of the situation. You have John and Jane Smith. They're looking to buy a house. This is the biggest financial transaction of their lives, and purchasing real estate is an enormously complex transaction they have no real understanding of. They're coming into the market innocent of any real knowledge of trends, or where the market is. They have seen none of the recent sales in the neighborhood. They have no idea how to evaluate a property for future suitability, investment potential, or any number of other things. Do you think people might be willing to pay for all that knowledge and judgment, and know-how? Now consider: If we market ourselves by telling them they have to come to us because we have a monopoly on information of what houses are for sale, what happens when we don't? Crickets chirp, tumbleweeds roll, and 99.9999 percent of all agents go out of business. Market yourself by sending the message that your value is in control of market access, and what happens when your control of market access goes away?

Let's look on the other side of the equation as well, at sellers. You have John and Jane Smith, a few years later. They've decided to sell for some reason or another - there are at least eight categories of reasons. Now they've got a long grocery list of factors that they've never before considered to deal with in selling that property. Time constraints, property constraints, competition constraints, staging, location, construction, layout, the loan, the lender, the market they're in. Do you think people might similarly be willing to pay for expertise in dealing with all of that? But most ways of marketing that agents do boil down to "Our MLS is where all the buyers are." What happens when it isn't? RIAA is learning this lesson right now, and they have a lot more law on their side than agents do.

Or maybe we're all going down the "constrained to deal with an agent by force of law" argument? All it takes is one licensed agent to put themselves into the deal, and the traditional brokerages have made it trivial to get that license as the way to keep themselves in clueless newbies. Not to mention that most states, including all of the big ones, don't have such laws, and passing them in current environment falls under the heading of "Not Gonna Happen." The few states that have such laws are going to wake up and repeal them eventually.

The "sign in the yard, entry in MLS" listing agent is going to go away no matter what we do. So is the "here is the living room" buyer's agent. Where there is no real value provided, people will go with the cheapest alternative, and you can't stay in such a business competing with "essentially free"

But good agents do provide value, and even more so when there's no agent on the other side. My average for the buyers that are the majority of my business in the last two years is almost twenty percent of the value. Let the people be free not to use any agent if they don't want to. It just makes my clients happier. Let your happy clients tell their friends, and there won't be any shortage of business.

For those agents who can compete with all possible alternatives, it would be a lot easier to attract business if we didn't have to compete by first defusing official NAR pronouncements that are nonsense, and sabotage our efforts by telling the public that the value of an agent is in places where it clearly no longer is. We are entering a new world of information transparency whether we like it or not. I've decided that I like it very much - basic information may be free, but context, analysis, and evaluation are more valuable than ever because of it. But try and charge toll for that basic information, and people will figure out how to route around you.



Balloon Juice has a piece on how you can get anyone's phone records for just over $100. And this evidently surprises not only him but the place he got it. Since the 1970s, the technology has existed to monitor every conversation in any room that has windows from basically any distance. The great defenses have been anonymity (why should anyone care about this), expense (it wasn't cheap) and processing power (somebody had to actually listen to all the garbage in order to extract any jewels). With modern programming, computers can take the place of human listeners at the first filtering, it's becoming cheap enough such that most folks can afford to plant bugs in dozens of locations if they want to, and with it so cheap, anybody is a potential target.



The same thing goes with cameras. If it's worth it to me, I can monitor anything you do from anywhere that is visible from public spaces, and most of the ones that aren't. Credit reports (the social is both login and password, and anyone can find it out if they're motivated enough). Any other information you'd care to name.



There is no defense. Not de facto, not really de jure. Outside of some pretty campy science fiction (the original Thunderbirds) I haven't seen anyone seriously propose any kind of detector for this. Failing that, the only way to stop it is nearly microscopic level sweeps of surrounding terrain on a continuing basis. And it's difficult to prove it belongs to anyone in particular.



Given this, there are essentially two options for individuals. Live in denial until you're caught, as happened to Congressman Cunningham. Or don't do anything such that you'd care if it was on page one of every newspaper and the lead of every newscast for a week.



Now, if there is one thing that everyone should have learned from recent celebrity trials, it's how difficult it is to convict anyone with resources (money) of anything substantial. Given this, making it illegal to spy means that the powerful and wealthy can spy on the less powerful and wealthy, but that the average person could not spy on the powerful and/or wealthy.



I find this idea intolerable.



So we arrive by process of elimination at the conclusion that we need to make all of this specifically legal.



What we gain from this step is also non-trivial. Identity thieves are nailed much sooner. Criminals of every real sort find it much more difficult to ply their trade when they can be captured on film at any moment. The powerful, who would be especially scrutinized, learn to live clean or live poor or live in prison. Yeah, there would be "Exclusive pictures of Congressional orgy!" in all the tabloids. We're all free not to purchase them, and the fact they undergo scrutiny of this sort constantly motivates them not to do anything they'd really care about being caught at. In fact, this kind of routine scrutiny would swiftly cause most sorts of victimless "crime" to be decriminalized, at the very least. There'd be some show trials, and after a very short period of time, it would become evident to even the most die-hard legislator of other people's morality that this nonsense just isn't viable any more.



I'm not exactly happy about the national security angles myself. But National Security is going to be the object of this sort of thing no matter how illegal it is. Treason and Espionage are two of the oldest and strongest death penalties on the books. The people who do these things know this, and do it anyway. On the other hand, legalizing scrutiny makes it much easier for those abiding by the law to find the real bad guys. And legalizing scrutiny means that we can watch our law enforcement, as well, and know if they are really staying within the limits that we have prescribed for them.

Data Mining: Russian Style

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Samizdata has a thoroughly chilling (even for me) post on Data mining: Russian style.



Seems a businessperson checked into a hotel in Moscow. Within a couple of days, someone is reading his mail and accessing all of his business information in Beijing.



He tells it from point of view of cybernetic warfare, and that it is. But the capacity to do this is not limited to governments. It most certainly is not limited to totalitarian governments.



Yes, it's a real problem when the totalitarians do this. But with less anonymity and more tracing of pathways, it would be stark raving obvious that someone was setting themselves up to accomplish this.



We need less anonymity, not more. Only then can one user be certain that the data is going where it needs to, and nowhere else.





Database Mining

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Captain's Quarters notes that Congressional investigators have noticed what I did in this article, and takes the wrong tack:



we should instead move to limit its application. For instance, the need for the Internal Revenue Service to conduct data-mining operations eludes me. The IRS already has its hands on almost every single movement of cash through the requirement of federal tax IDs and Social Security numbers for financial transactions to take place.



This is only the official stuff - and has nothing to do with under the table transactions. As a working loan officer I've acquired a good feel as to part of the size of the underground economy, and it is enormous. Personally, I've had two offers within the past month to do work for a discount if I paid in cash. I have a firm policy of refusing such offers as in my profession, the regulators finding an off the books transaction is reason to terminate my license if they want it to be. But these are underground transactions, and they cost you, me and everyone else a lot of money in taxes, in benefits that the people performing said work really don't qualify for, and other things.



The IRS is supposed to look for stuff like this. This is how they sent many of the old time gangsters to jail when the FBI and police failed.



Nor is the government supposed to be blind in gathering evidence. What they are supposed to do is have a "reasonable person's" idea that there is a problem before they perform a search. A search is basically looking for non-public data. If you are doing drugs or performing a mugging on a public street and a police officer drives by, he doesn't have to get a warrant to act. He can see it with his own eyes. What the fourth amendment is intended to prohibit is "fishing", using the law to terrorize citizens, going in to some opponent's affairs just on the chance that there is a violation. All of what they are looking for is in public databases.



Captain Ed does continue



Congress should make clear the uses and parameters of data mining to head off major abuses of the data, and it should limit the use of this technique to critical national-security functions. Do not let the privacy-at-all-costs make us fight the war without the effective tools necessary to find our enemies before they find us.



So he gets it fifty percent right. But consider: If everyone's financial data is public, who is going to be the most scrutinized? If you answered public officials, you win the prize! I can think of no better method of insuring corruption is kept to a minimum. Everybody who wants a public life will know they've got to be squeeky clean, and have no complaint coming if something comes up. I can think of no better way of insuring that trustees and directors of charities and corporations are clean, and performing their duties. And if everyone's financial stuff is public, identity thieves might as well dance naked in the street, because they're not getting away with it. Security can be provided by biometrics, by public and private encryption keys, and any number of other methods. Most of the problem and vulnerability with social security numbers and similar schemes can be traced to the fact that they are a single data item trying to fulfill functions of both identifier and password gatekeeper.



If you offer most people a choice between privacy and tranparency, they will choose privacy for themselves and transparency for everyone else. I admit that I'd like to be anonymous while I can hold everyone else accountable, but somehow I suspect that you, the readers, wouldn't like that very much. Given the state of the law, the powerful and the rich can mine your information if they want to, and likely avoid any penalties even if they are caught. On the other hand, they have all the levers they could want to protect their own information in the reverse situation. I hope I am not alone in finding that intolerable. Going further in the direction of privacy is fruitless. Only in transparency is there relief. I admit the idea makes me a little nervous, but bottom line, I've got nothing worth hiding. Especially not when everyone's coming out into the open. Any little warts on basically honest individuals will be overshadowed and ignored. It's only the crooks who have cause to worry.



The databases are there, bottom line they are available to the public, and the bad guys (identity thieves and others) are mining them. There is no turning back. The genie will not go back into the bottle. We can pretend he's still there to our detriment, or decide to stop pretending and step out into transparency.



While I was reading up on the Able Danger controversy this morning, I ran across some side information on a recurring theme of mine. I want to bring this to the attention of my readers:



From the CNN interview of Colenel Shaffer





What I did was I married the land information warfare activity, LIMA, at Fort Belvoir, Virginia, an Army unit, Army capability, to the special operations command for the purposes of this exercise, this targeting exercise of al Qaeda. What the LIWA did — and it was their ability to go through massive amounts of open-source data, 2.5 terabytes, and look for patterns that related to previously-known terrorists. It was that information then which popped up...



S. O'BRIEN: So, by trolling the Internet and LexusNexus, things like that, I think that's what you mean by open source data? Am I right about that?



SHAFFER: Open source — anything that's not a classified database. We're talking about commercial databases, financial databases. Anything that's out there that relates to the real world.



And let me be specific on this. S. O'BRIEN: And his name pops up?



SHAFFER: Well, yes, because terrorists live in the real world. As we recognize from the London bombings, there's a picture of the terrorist in a whitewater rafting trip. They live in the real world just like we do. They plan in the real world.



S. O'BRIEN: What were those documents that — give me a sense of what kinds of documents targeted Mohamed Atta a year before 9/11 as a potential terrorist.





Look at this. This man is telling you that you have no privacy. Just the illusion. If someone wants to find out about you, they can. So don't do anything that you wouldn't want to see on the front page of every paper in the world.



Now, this illusion of privacy allows for a lot of evil things to go on. Identity theft. Cons and scams. Evil men and women going from place to place to place to catch new victims. It allows the powerful to protect their privacy legally while invading yours in fact. They can prevent us from looking at them; it is much easier for them to look at us.



It also allows for the perpetuation of more hypocrisy than most people think about. If it were legal and trivial for me to find out if Mr. Rich or Ms. Powerful violated any number of vice statutes (drugs, prostitution, gambling, blue laws, etcetera), how long would the police be able to hassle ordinary citizens on these points? How long would vices of personal choice like this remain illegal? What would this do to the economic underpinnings of organized crime and gangs? Why should anyone pay Mr. Criminal Drug Dealer whatever the street price of illegal drugs is when they can go buy it at the pharmacy? How much would we save on all the enforcement activities and incarceration? How much would we lower theft, burlary, and mugging when the stuff is no more expensive than aspirin?



On the economic front, imagine if every Good Faith Estimate for every loan that every loan officer ever did was freely available to prospective clients, along with the subsequent HUD-1 when the loan funded. Prospective clients could see if a loan officer did or did not have a track record of delivering what they said they would. Imagine if every real estate transaction had a subsequent issues attachment in a public file, and you could search the database for past performance by an agent, by an owner, or by a property. Imagine if every piece of investment advice could be tracked on a database by who gave it, who followed it (and whether the person giving the advice was among them), and what the results were. The deadwood and parasites would vanish from all three of these professions. Con games and fraud would shrink to a fraction of their current size. Real Estate and loan transactions would have large portions of their costs demolished.



This is not a complete list, by any means. But I've long since decided that this illusion of privacy is far too expensive. It allow the powerful the ability to restrict our liberty while maintaining theirs. It allows the criminal to steal our property. It allows the incompetent to remain anonymous, and the con man to prevent their victims from being warned. It forces us to spend our tax money places it doesn't need to be spent. It allows too much of the way we spend our tax money, and the process by which it is allocated, to remain unscrutinized. It allows the very process by which our tax money is collected to remain unscrutinized, and if potential IRS abuse of the tax code doesn't bother you, or abuse of the tax code by those who can afford "protection money" (i.e. lawyers, accountants, etcetera), then something is wrong.



Bottom line: This illusion of privacy allows those who would do us harm to walk among us undiscovered. It allows those with power the ability to harrass those who aren't hurting anyone. It allows those who have harmed us to escape what should be the consequences of their actions.



This is one book with a very worthwhile explanation of the issues. I've been hitting this subject since before it came out, but Mr. Brin does a more comprehensive job here with these issues than I have seen elsewhere. It also discusses what some limits to transparency should be.



Take your time and decide which is more important to you: Being able to pretend in public, or not having to pretend because no one else can, either. Lies, Hypocrisy, and Demogoguery to distract us, or public disclosure and scrutiny of real issues. Criminals and incompetents and rip off artists being able to pretend in public that they are fine upstanding citizens with our interests at heart, or being carted off to jail, losing their licenses, and just plain being put out of business? Being able to escape accountability for your actions, or being able to ensure that everybody is accountable.



I know which side I'm on.



(If you'll check this article, you'll see that this is a theme I keep returning to, and a Hat Tip to Captain's Quarters for the original link.)



Eric's Grumbles responds to one of my posts responding to one of his.



Now, Eric, before I get started on the issues you managed to embed in your attack tirade, let's pull a few quotes from your response:





Wow, where to start with this mishmash of thought!



The Constitution is written in plain English, albeit late 18th century vernacular. But that is not so different from today's English that an 8th grader can't understand what it says. In fact, I first read the Constitution in its entirety and analyzed its meaning in 8th grade, in my US History class. This clearly means to say that I have a right to be secure in my property, and not just my house. I hate to restate the language, since it is so clear, but apparently I must.





This leaves out misstatements of my points and straw men which I intend to demolish later. These are pure ad hominem attacks. Where, precisely, in my response did I say anything to deserve either of these? That you perhaps do not understand my position, or choose to pretend you do not understand my position, is not grounds for this.



Basically, I thought better of you and if this is an example of how you deal with an argument perhaps I would be better off not interfacing with you. If we cannot agree to go after the issue rather than the individual espousing it, I'm afraid this will be my last communication to you.





Now, to the issues:



First off, you either misunderstood or misstated the effects of the following passage:



Me:



That it is unconstitutional under the Fourth Amendment, or as a violation of privacy, is incorrect and at best an easy excuse to harrass the government. My right not to be killed or wounded in a public conveyance trumps your right to keep explosives in your backpack, or to keep items of whatever nature private in your backpack, and one has no reasonable expectation of privacy in a public conveyance.





Eric:



You don't have a "right to privacy" in a public place, thus the 4th Amendment doesn't apply.





That's public conveyance, actually. The distinction between what I actually said and what Eric said I said is important, for reasons that become clear later. See below.



He actually spends paragraphs on it later:



Now, personally, I wouldn't tackle this problem with a lawsuit as the NYCLU did. If I lived in New York and a Transit Authority police officer tried to search me, I would demand to see a warrant and then refuse to be searched when the officer couldn't produce one, nor show probable cause to my satisfaction that I was a threat or public danger. If I was prevented from entering the subway, or arrested, I would fight the case as far as I had to, which I suspect wouldn't be very far, to show that the attempted search, and subsequent arrest, was unconstitutional. If I were simply prevented from entering the subway, I would bring a lawsuit under Article 1 of the Fourteenth Amendment:



1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.



The important part is that no state shall make/enforce laws that abridge my privileges and immunities, specifically search and seizure and the right to peaceably assemble.





The problem is, you're hunting the wrong target.



A public-benefit corporation chartered by New York State in 1965, the MTA is governed by a 17-person Board. Members are nominated by the Governor, with some recommended by New York City's mayor and the county executives of Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam counties, with the members representing the latter four casting one collective vote. The Board also has six rotating non-voting seats held by representatives of organized labor and the Permanent Citizens Advisory Committee (PCAC), which serves as a voice for users of MTA transit and commuter facilities. All Board members are confirmed by the New York State Senate. Source here





In short, it's a corporation. Publicly chartered, publicly controlled, but a corporation - not the state, not the feds, not the government. They issue bonds to investors in their own name. The related entity supplement does not discuss any aspect of government at any level. Various government agencies are on the board of directors, but it remains a corporation legally independent of them as much as Microsoft is legally independent of Bill Gates. When you deal with MTA, you are not dealing with a government, federal, state, local, or otherwise. YOU ARE DEALING WITH A CORPORATION. Yes, the Mayor of New York has a relationship with the corporation. This doesn't mean that it is not legally distinct. Corporations are not bound by the Fourth Amendment - As I understand it, only a governmental entity can be the proper object of a fourth amendment suit. If I had realized you didn't know this, I probably would have stated it more explicitly, as I do not know of a public conveyance which isn't run by a public corporation. It's kind of universal in this country, although there are likely exceptions somewhere.



This corporation has a legal duty of care to take all possible steps to ensure that the conveyances are safe, not only from poor practices on their part, but from actions of third parties who may have active hostile intent. You are under no obligation to do business with the corporation, and aside from things such as Title VI covering non-discrimination, the corporation is under no obligation to do business with you. If it announces it will allow no riders wearing green on March 17th, and you want to ride, you'd better leave the green leprechaun hat at home. They want to search every backpack going in, the state of the law allows it. If you refuse to be searched, they are within their rights not permit you to ride. If you sue, you'd better be prepared to pay their attorney's fees.



More Eric:



Moving onwards with Dan's arguments. The idea that Dan's right to be protected from a terrorist means that the government can take away (or trump, to use his terms) some right of mine is the entire foundation for the Patriot Act, among other things. Yet, in historical terms, when the US has taken such actions, we have later decided that they were wrong, or even unconstitutional. The clearest one, of course, was the relocation and internment of American citizens of Japanese descent (Nisei) during World War II. This was clearly unconstitutional and was based in just the concept that Dan expresses. The fear that one of these Americans might be a spy or saboteur caused us to infringe their inherent rights. Not only was it wrong, morally, but it was also ineffective.





This is a classic logical fallacy: The straw man. Setting up a different example which you flame away at, and burn up. To many people, in many situations, it might appear that you have made a valid argument. You haven't. Previous examples are not this one. The USA PATRIOT Act has been ruled constitutional, as a matter of fact. (As an irrelevant aside, you might talk to Michelle Malkin as to whether Internment was effective and reasonable. We already know it was ruled unconstitutional, correctly in my opinion, albeit by a generation of justices who I'm not convinced understood the situation.)





The idea that somehow Dan's rights are more important than mine is a fallacy. It creates a set of citizens who have more rights than others. And it is part of the slippery slope from individualism to collectivism. If you believe in life, liberty and property, limited, constitutional government and the individual over the group, then you have to see this fallacious argument for what it is, an argument that uses consequentialism to elevate the needs of the group above the needs of the individual.





Actually, this is a misrepresentation of what I said, namely, one right of mine trumps a different one of yours. In this particular context, my statement happens to be true, as I believe that I have demonstrated above. Also, I was speaking in the aggregate although I am to fault for not making this explicit. I thought it was obvious, but evidently I was wrong.



But this whole argument of Eric's also rests on another logical fallacy: appeal to popularity. In fact, I do not see it; I actively disagree. I think we are far safer, and individual rights are more assured, when everybody has to submit to those searches. No exceptions for Mr. Millionaire or Ms. Politician. They're going to search us anyway, legally or not, if not in this setting, then in another (From Heinlein or realpolitik: What happens if you outlaw bugs?). It is my considered opinion that we are better off if the law gives us the same right to search them and their cronies.



Me (repeat of above quote)



That it is unconstitutional under the Fourth Amendment, or as a violation of privacy, is incorrect and at best an easy excuse to harrass the government. My right not to be killed or wounded in a public conveyance trumps your right to keep explosives in your backpack, or to keep items of whatever nature private in your backpack, and one has no reasonable expectation of privacy in a public conveyance.





Eric:



And I must say that the idea that I shouldn't "harrass the government" is certainly not consistent with the founding of this country. Indeed, Dan betrays, here, a very clear "classic conservative" approach to politics. Not an ideological "neo-con" approach, but rather the way that the Tories of 18th Century England thought. This is a paternalist way of thinking, a "father knows best" sort of statement. The government knows best until they are clearly demonstrated to have done something wrong. This is 180 degrees opposite from how I think, and, indeed, how our Founding Fathers thought. I have the right, indeed the duty and and obligation, to "harrass" the government any time I think it has overstepped its limited authority granted within the Constitution. And I don't intend to stop because of the global war on terror, or whatever we're calling it today. In fact, the destruction of my freedom to behave as I please and say what I want is precisely one of the goals of our enemies. Given that, Dan, you should be supporting my harrassment of the government, not opposing it.





The relevant part of my quote being the first sentence. Actually, I didn't say that I necessarily oppose, nor do I actually oppose, harrassing the government. In this case, however, it is harrassing the government to no good purpose as they are not the proper object of your ire, which is something I do oppose. I did not, nor am I going to argue that you can't do it, but you'd be wasting tax money to no good purpose. We're all paying for this crap, every time it happens. That you have the right to bring a case does not imply that you should.



One last bit of Eric:



Finally, we come to my own consequentialist argument. Now, in my opinion, my consequentialist argument is the weakest portion of my argument, but Dan takes it as the strongest portion of the argument. This betrays a position that is founded in utilitarianism, not principle, rights of the individual and the Constitution. It is absolutely true that the random searches are completely ineffective, and should be stopped. But if they were constitutional and moral then the only argument I could make would be that they were not going to work. This, alone, might not be reason enough for me to go along with trying to stop the searches. However, when you combine the consequentialist and the moral to arrive at the same position, then you have an argument I cannot ignore. And clearly the searches are a waste of time and money, they cannot possibly work, as constituted. If I have malicious intent and I see a police officer conducting searches at the subway entrance I plan to use, I can simply turn around, walk a few blocks and enter the subway by an entrance that is not the site of an illegal search.





The part about my belief that it's the strongest argument "betrays a position founded in utilitarianism" is an ad hominem, as it implies that a position founded in utilitarianism, or that someone who espouses utilitarianism, cannot be right. This is not the case. Now, the reason I believe it is your best case is because it's your only case with a solid legal basis, as I believe that I have shown above. Yes, judges rule Fourth Amendment applies this all the time, and if the MTA doesn't appeal, the ruling stands. But my understanding is that all the standing precedents go the other way.



Now it happens that my position does flow not only from love of liberty but from utility (not utilitarianism, in the sense I belive you mean) as well. Love of liberty is not my only parameter, I admit it. Actually, I'll shout it from the rooftops if you so desire. So what? I've got kids, and nephews and friend's kids whose future I care about as deeply as my own, if not more. I want a society that works and perserveres and continues to grow, and purist positions are often not sufficiently grounded in reality to perservere. For example, the platforms of the Communist and Green and Libertarian parties. Reading L. Neil Smith makes a pleasant fantasy, but in the real world it'd last about three weeks. I am an incrementalist. I want to construct society in such a manner that it is stable in the mathematical sense, as well as tending further towards personal freedoms. Better pretty good and stable or getting better for the forseeable future than perfect for a short time and then gone. Furthermore, a lot of the libertarian positions has never really been tried, or not on the scale of the United States - there is no data as to whether it actually works. Maybe we've got a wonderful theory that doesn't work quite as we think. If the evidence says that a given idea doesn't work out as planned, I'd like the ability to change it back. Maybe we even have an idea like communism, where it isn't going to work at all if we ever get to try it. Some metaphorical prices I will not pay, and I suspect (without evidence) that most folks, and even most of those sympathetic to libertarian positions, agree with me. And for what it's worth, I think those libertarians determined to accept nothing less than a purist vision are part of the problem, not part of the solution, but instead of coercion (believe my way or else!) like the dreaded statist of libertarian lore, I believe in persuasion and rational argument to the issue and even (gasp!) agreeing to disagree.



Now, my understanding of the libertarian position says that this still makes me a libertarian if I want to be. But if we're going to get into persecutions for being imperfectly pure of belief according to the beliefs of one (or any other number of) self-appointed high priest(s), perhaps I just need to leave the church on my own, as I understand this being the United States of America, I still have that option. Your call.



UPDATE: Snippiness forgiven. Eric in comments makes a reply, so here is mine. References are to the comment.



Paragraph two: This is the definition of a straw man argument. Guilt by association.



Paragraph three: Does not matter who is conducting the searches, only who is requiring them. It is the MTA. That the NYPD is helping out is nice, and helps the searches go faster, but it is the MTA requiring them. Does not matter really matter that MTA is publicly owned, what matters is that it is an independent non-governmental body which the average citizen does have a realistic choice of not patronizing.



In comments to my Links and Minifeatures yesterday





...my argument is not rooted in a "right to privacy", rather it is rooted in the combination of the unreasonable search and seizure, lack of a warrant and complete ineffectiveness of the strategy. By the way, my opinion is the same with regard to any other public facility. The same goes for the searches prior to entering an airport terminal. IF it was not mandated by the government and was, instead, a requirement of the airline, it would be different. It would be voluntary and a private contract between customer and airline.





The "unreasonable search and seizure" is rooted, albeit not explicitly, in privacy, as is lack of a warrant. The complete ineffectiveness of the strategy as enacted is a separate issue. That the strategy is an ineffective token, and as such, basically an excuse to hassle your average citizen is a valid reason to oppose it. That it is unconstitutional under the Fourth Amendment, or as a violation of privacy, is incorrect and at best an easy excuse to harrass the government. My right not to be killed or wounded in a public conveyance trumps your right to keep explosives in your backpack, or to keep items of whatever nature private in your backpack, and one has no reasonable expectation of privacy in a public conveyance.



The problem is that opposing it on grounds of being ineffective harrassment is legally difficult at best, and while I'm no lawyer, I believe precedents are few on the ground and go mostly the other way (Just because it's not perfect doesn't mean you can't do anything). Fourth Amendment is legally easy and you might just win via judicial fiat. Harder but the correct response would be to get the public on board for a campaign to either get rid of it or make it effective. But that's not in the ACLU playbook anymore, and not in accordance with their not-so-hidden agenda.

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