Recent revelations about the Internal Revenue Service’s treatment of conservative and Tea Party groups should give pause to advocates of big government. While the strong-arm tactics have elicited condemnation from across the political spectrum, it should be no surprise that as the size and scope of government expands so, too, will its intrusions on the rights of citizens. As decisions and authority are ceded to the public sector they become politicized and subject to bureaucratic discretion. It is a quiet transition from the “rule of law” where all individuals are subject to the same treatment, to the “rule of man,” where the prejudices of the decision makers dictate outcomes.
Public choice economists, who apply the tools of economics to the politics, are all too familiar with such dangers. Specifically, they begin with the premise that individuals are not “bifurcated.” That is, people are people, and they behave the same whether they working in the private sector or the public sector. Everyone is self-interested and will act in ways that further their interests. While unfortunate, and perhaps sometimes criminal, the sight of government bureaucrats pushing their own agendas is not surprising. Whether it is the IRS targeting grassroots activists, the Department of Justice seizing private phone records of reporters, the EPA treating FOIA requests from conservative groups differently than requests from environmental groups, or the Obama administration’s refusal to impose fines on wind farms for deaths of golden eagles (more than 80,000 hunting bird deaths last year) while pursuing fines against oil companies, bureaucratic discretion trumps policy.
The Internal Revenue Service’s treatment of political activists also demonstrates the extent to which government access to private information can generate unwanted outcomes. As the data cloud expands and more activity moves online, individuals run the risk of having even greater amounts of data unknowingly shared with government agencies. Indeed, as IRS is about to take responsibility for enforcing the president’s health care law, a lawsuit already has been filed against the agency for allegedly illegally seizing 60 million personal medical records.
In light of the current political storm over the IRS’s fishing expedition, the Obama administration’s tentative support for the FBI’s plan to ensure that the internet is wiretap friendly should viewed with a jaundiced eye. The Communications Assistance for Law Enforcement Act of 1994 (CALEA) ensures that phone systems can be wiretapped; but as more and more communications are moving to an internet platform, the FBI is proposing to expand its internet spying capabilities to include access to other forms of online communications such as Facebook and Google Beyond the costs of such a mandate, which is far more complex given that the packet-switched internet does not follow the point-to-point communications of the phone system, the expansion of the government’s data-mining capabilities should be troubling to everyone.
At the same time, legislation that would require that law enforcement officials to provide a warrant prior to internet searches languishes in Congress. The Electronic Communications Privacy Act (ECPA) is sorely outdated and not suited for emerging cloud technologies. Under current law, government officials do not need a warrant to search online communications that are over 180 days old, because the law was written for an earlier version of the internet that did not envision things like Facebook and Dropbox. Falling prices of online storage have made ECPA wholly unsuitable for protecting individuals from unlawful digital search and seizure. The need to update ECPA is underscored by recent documents suggesting that the FBI regularly accesses emails and online content. An inquiry by the American Civil Liberties Union found that agency practices were inconsistent and most likely in violation of the Fourth Amendment. The ECPA reform legislation from Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT) would require that law enforcement officials obtain a warrant prior to online search and seizure. Rather than focusing on the need to expand surveillance authority under CALEA, the administration should put its force behind ECPA reform and protecting the rights of American citizens online.
Oftentimes, the case against big government is framed in terms of the adverse economic impacts of increasing federal debts, rising deficits, and growing regulatory burdens. These economic costs are real, but they are not the only danger. An expanding government sector can often replace private decision makers with third party bureaucrats armed with statutes and regulations that provide sweeping discretion for greater intrusions into the lives of American citizens.