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Supreme Court Rules That Police Need a Warrant to Seize Your Cell Phone Location Records

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Someone on Twitter last night was complaining that we never get any good news these days. It’s just an endless hailstorm of crap. I feel his pain. But look! Today brings some good news. In a 5-4 decision, the Supreme Court has ruled that police need a warrant if they want your cell phone location records:

The digital data at issue—personal location information maintained by a third party—does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set addresses a person’s expectation of privacy in his physical location and movements [Jones]….The other addresses a person’s expectation of privacy in information voluntarily turned over to third parties [Smith and Miller].

….A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements….Allowing government access to cell-site records […] contravenes that expectation. In fact, historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers.

….Given the unique nature of cell-site records, this Court declines to extend Smith and Miller to cover them….First, cell phones and the services they provide are “such a pervasive and insistent part of daily life” that carrying one is indispensable to participation in modern society. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.

Like the Obamacare decision, this one is Roberts plus the liberals, with all the other conservatives dissenting. It’s yet another reason for conservatives to think they’ve been betrayed by a Supreme Court nominee. But Roberts wrote the decision and specifically said that his opinion was “informed by historical understandings ‘of what was deemed an unreasonable search and seizure when [the Fourth Amendment] was adopted.’ ” And let’s face it, if you could travel back in time and ask James Madison if he thought it would be OK for the government to use a magic device that tracked the precise movements of virtually every human being in the country, what do you think he’d say? That is, what do you think he’d say before he dropped dead of apoplexy?

Live by originalism, die by originalism. The fact is that it really ought to be the “living Constitution” liberals who have a tough time with a case like this, while the conservatives should be diehard Fourth Amendment purists. But conservatives today are all believers in extreme police power, and that overrides their originalist tendencies. A lot of other things override their originalist tendencies too. This is what makes me so suspicious of originalism to begin with. If you only use it when it produces a result you agree with, what use is it?

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benzado
1 hour ago
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New York, NY (40.785018,-73.97
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Trump’s Ploy

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The President says he’s signing an executive order to end family separations. The actual aim seems to be to pick a fight with the courts and allow separations to continue while blaming judges. According to The New York Times, the President will sign an executive order allowing children to be detained indefinitely with their parents. The problem is that that violates a 1997 consent decree saying that you can’t detain/imprison children for more than 20 days (technically what’s currently happening isn’t detention). It straight up violates that order. So what will almost inevitably happen is that a court will step in, say you can’t do that and then Trump will announce that the judge is forcing him to keep separating families.

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benzado
1 day ago
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New York, NY (40.785018,-73.97
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Enforcing And Not Enforcing The Law

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As it attempted to stave off public outcry about the border crisis, the Trump administration argued that it was helpless to take action. This is a law, or maybe a policy, representatives of the administration said; its hands were bound.

When it comes to immigration, this is a discussion that stretches back decades. The Obama administration also wrestled, heavily, with what aspects of immigration law to enforce, and which to look the other way on. The Trump administration has chosen to enforce the laws, in the most extreme way, across the board: “zero tolerance.”

“Surely it is the beginning of the unraveling of democracy when the body who makes the laws, instead of changing them, tells the enforcement body not to enforce the law,” Department of Homeland Security Secretary Kirstjen Nielsen said Monday.

As many have pointed out, this is not true. The government has tremendous discretion. And the areas in which the Trump administration chooses to enforce the law, and the areas in which it chooses to look the other way, are telling.

The Associated Press discovered through a FOIA request in April that, since Mick Mulvaney took over the CFPB from its Obama-appointed former director, Richard Cordray, the agency has not taken a single enforcement action against banks, credit card companies, debt collectors or any other financial firms.

Similarly, enforcement actions are down by a third at Scott Pruitt’s EPA. This includes looking the other way on methane pollution, one of the most potent drivers of climate change. It also includes failing to warn the public about potentially toxic chemicals, or force individual facilities to clean up their act — even as they’ve dumped toxins into the air above Trump-voting towns.

When it comes to immigrant children, many of whom are refugees, the Trump administration’s hands are tied. The law must be enforced. When it comes to powerful interests, rule of law is more of a guideline.

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benzado
1 day ago
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New York, NY (40.785018,-73.97
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Obamacare’s Top Ten Worst Design Flaws — Part 2

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Here is Part 2 of Jon Walker’s critique of the technical design of Obamacare.


By Jon Walker

This a pure nuts-and-bolts policy criticism of the design elements of the Affordable Care Act that judges the ACA only on its own terms. Even starting with the assumption that a marketplace of private insurers was the only politically viable option for expanding coverage, there is the problem that the ACA model was executed very poorly. Here are a few of the worst problems.

6. Created a massive negative marginal tax rate

The ACA has a massive subsidy cliff, particularly for older people, which means if an individual earns a dollar over the subsidy threshold, they end up losing thousands. This cliff problem will only get worse as premiums continue to rise. Even without increasing overall spending it would have been possible to smooth out the subsidies to at least remove this massive negative marginal tax rate problem.

7. The creation and promotion of silver plans, when no one should buy middle level insurance

The ACA exchanges offer Bronze through Platinum plans, which makes Silver a middle-level option in terms of cost-sharing. The problem here is that most people have a pretty good idea of whether they’re likely to be high-cost or low-cost patients in a given year. Rationally, high-cost patients should choose Platinum plans and low-cost patients should choose Bronze plans, but the ACA subsidies are designed to force insurers to offer Silver plans—and they all but force many people to buy Silver plans. Most people should only be choosing the highest or lowest cost sharing option depending on their expected health, never the middle option.

Note that this problem gets worse the higher premiums go because the gap between Silver and Bronze also goes up. People who already pay the most are the ones who are hit hardest by the bias of the ACA toward pushing everyone toward Silver plans.

8. A needlessly complex mess of plans

In addition to the four metal tiers, the ACA requires plans to offer Cost Sharing Reductions to some lower income people but only if they buy Silver plans. These CSRs turn Silver plans into effective 94% AV, 87% AV, or 73% AV plans. That is seven different insurance tiers for every insurer, with numerous plans within each tier. It is a confusing administrative mess that also makes it difficult to explain to people why buying a Silver plan is way better than a Gold plan. These multiple subsidies could have been simplified, and these extra saving Silver plans could have just been merged with a “platinum” tier.

9. Terrible public data makes smart shopping impossible

The idea of the ACA was to bring down costs by getting individuals to be better, more conscientious consumers of their health care. This idea can’t even work in theory unless an individual has good data. However, the ACA has done a very poor job of providing people with the critical network data they need. Combined with the needlessly large variety of insurance plan designs, it is unreasonable to expect people to make the best choice.

10. Lets employers punish their sick employees

One part of the ACA allowed employers to charge employees significantly more if they don’t take part in “wellness programs.” These programs offer dubious value when it comes to improving health but have serious privacy and social justice issues. This effort, meant to help encourage sick people get healthy, has likely turned into a way for companies to discriminate against and financially punish those most in need.

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benzado
6 days ago
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New York, NY (40.785018,-73.97
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Obamacare’s Top Ten Worst Design Flaws — Part 1

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A couple of weeks ago I got into a Twitter conversation with Jon Walker, who writes frequently about health care issues. We got to discussing Obamacare and some of the ways that it failed in its design, and I asked him if he’d put together a top ten list of the kinds of things he was talking about. These are not ideological issues like the lack of a public option or subsidies that are too stingy. These are things that, even if you accept the basic design of Obamacare, simply don’t work the way they were supposed to.

I was interested in seeing this myself, and I figured my readers might be interested too. So here they are. I’ve split them up into two posts of five items each. The second post will go up in an hour or two.


By Jon Walker

This a pure nuts-and-bolts policy criticism of the design elements of the Affordable Care Act that judges the ACA only on its own terms. Even starting with the assumption that a marketplace of private insurers was the only politically viable option for expanding coverage, there is the problem that the ACA model was executed very poorly. Here are a few of the worst problems.

1. State control combined with zero direct incentives for the states to make it work

The ACA left much of the regulation of the individual market and the implementation of the exchanges to the states, but it gave states no incentive to perform these tasks well. State/federal partnerships are common and there is nothing inherently wrong with them, but they almost always offer strong incentives for states to use good oversight. For example, with Medicaid, states are responsible for paying a portion of their costs, so they have a strong incentive to keep Medicaid costs low. The ACA should have given total control to the federal government or given states financial incentives for keeping premiums low, but lawmakers chose the worst of all policy designs. There was zero political justification for this design mistake.

2. Punishes low income people if their state or county tries to make the ACA work

Even worse, the law actively punishes low-income people in states and counties which try to make the exchanges function well. ACA’s tax credits for the poor are based on the price of the second-lowest-cost silver plan, which means that regions with higher prices also provide higher subsidies. Perversely, it turns out that badly managed ACA plans produce premiums so high that the tax subsidies rise even higher—which produces a lower net cost for anyone who qualifies for subsidies. Conversely, in well-managed states like California, the net cost of a bronze or silver plan tends to be fairly steep.

3. Heavily encourages development of local monopolies

In any market there is already a strong incentive for companies to try to develop local monopolies, but the ACA design supercharges this with its subsidies based on the second-lowest-cost silver plan. The low-cost insurer in a market can game this design by offering two low-cost silver plans, thus making it nearly impossible for anyone else to compete. California adopted plan standardization rules to reduce this problem and make shopping for plans easier. The Obama administration could have adopted similar rules for Healthcare.gov but chose not to. This is often worst in rural places where there are concentrated hospital markets, making it impossible for any but the largest insurer to negotiate decent rates, or markets where the dominant hospital network is the insurer. Of course, once an insurer has created a monopoly position, it can then use it to create a potentially massive windfall. The ACA was premised on the idea that more insurance competition should be a top goal, but its design encourages the opposite.

4. Designed to get worse over time

The exchange plans and subsidies are based off actuarial value (AV). An actuarial value of 70% means the average person pays 30% of health care costs and the insurer pays 70%. The problem is that if health care costs rise faster than inflation, consumers end up paying the price. If health care spending averages $10,000 per person, cost sharing is $3,000. But if premiums go up to $20,000, then cost sharing goes up to $6,000. Even if you believe that the subsidy structure of the ACA was sufficient to make care “affordable” for people with specific income levels at the time of its passage, the design assures it will slowly make care unaffordable over time. What’s worse, ACA’s design includes a “failsafe” mechanism that will reduce subsidies if demand for insurance ever gets high enough—as it’s likely to do during a recession. Cutting help during a recession is a terrible policy move.

5. Accidently drove young, healthy people off the exchange

The ACA allows insurers to charge older people as much as three times more than young people pay in premiums; this is called a 3:1 age band. Compared to requiring insurers to charge everyone the same price, this added some real administrative complexity, but it was done to prevent premiums for older customers from getting too high. This inevitably means that premiums for younger people will be higher than they would be otherwise, but this at least was expected. What wasn’t expected is that young people might end up actually paying more for health insurance than older people. However, thanks to the subsidy design, it’s often the case that the net cost of insurance is more for the young than for the old. At the same time, if your income is high enough that you don’t qualify for subsidies, then it’s old people who pay more. This is a perfect example of people designing complex policies without even understanding how they work together. Regardless of whether you think the young or the old should pay more, it ought to be the same regardless of income level.

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benzado
7 days ago
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New York, NY (40.785018,-73.97
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The Cure For Boredom

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My memory of childhood contains very long periods of boredom. I suppose learning to cope with boredom is healthy - both in terms of accepting being bored and finding creative ways to not be bored - and a lack of boredom likely reduces the attention span significantly, but being bored... sucked. Totally sucked. Boredom was torture. And there were limits to the old parental standbys, "read a book" (which I did, often) and "go walk around the block" (it was a boring block).

Being bored as an adult kinda sucks, too. Waiting rooms. Airplanes. Bus rides.

But the phones. The world is in our pocket. Who amongst us can't easily kill 2 hours messing around on those things? Music, video, the intertubes, games, whatever. I used to spring for Amtrak sometimes when I went to NYC and now "eh, whatever, I'll take the bus." 10 bucks or so and 2 hours if traffic behaves. The phone will entertain me. And occasionally I will still read a book.
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benzado
8 days ago
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New York, NY (40.785018,-73.97
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