Editor's Note: The introduction to the 2015 Brown Center Report on American Education appears below. Use the Table of Contents to navigate through the report online, or download a PDF of the full report.

TABLE OF CONTENTS

Part I: Girls, Boys, and Reading

Part II: Measuring Effects of the Common Core

Part III: Student Engagement

---

INTRODUCTION

The 2015 Brown Center Report (BCR) represents the 14^th edition of the series since the first issue was published in 2000.  It includes three studies.  Like all previous BCRs, the studies explore independent topics but share two characteristics: they are empirical and based on the best evidence available.  The studies in this edition are on the gender gap in reading, the impact of the Common Core State Standards -- English Language Arts on reading achievement, and student engagement.

Part one examines the gender gap in reading.  Girls outscore boys on practically every reading test given to a large population.  And they have for a long time.  A 1942 Iowa study found girls performing better than boys on tests of reading comprehension, vocabulary, and basic language skills.  Girls have outscored boys on every reading test ever given by the National Assessment of Educational Progress (NAEP)—the first long term trend test was administered in 1971—at ages nine, 13, and 17.  The gap is not confined to the U.S.  Reading tests administered as part of the Progress in International Reading Literacy Study (PIRLS) and the Program for International Student Assessment (PISA) reveal that the gender gap is a worldwide phenomenon.  In more than sixty countries participating in the two assessments, girls are better readers than boys. 

Perhaps the most surprising finding is that Finland, celebrated for its extraordinary performance on PISA for over a decade, can take pride in its high standing on the PISA reading test solely because of the performance of that nation’s young women.  With its 62 point gap, Finland has the largest gender gap of any PISA participant, with girls scoring 556 and boys scoring 494 points (the OECD average is 496, with a standard deviation of 94).   If Finland were only a nation of young men, its PISA ranking would be mediocre.

Part two is about reading achievement, too. More specifically, it’s about reading and the English Language Arts standards of the Common Core (CCSS-ELA).  It’s also about an important decision that policy analysts must make when evaluating public policies—the determination of when a policy begins. How can CCSS be properly evaluated? 

Two different indexes of CCSS-ELA implementation are presented, one based on 2011 data and the other on data collected in 2013.  In both years, state education officials were surveyed about their Common Core implementation efforts.  Because forty-six states originally signed on to the CCSS-ELA—and with at least forty still on track for full implementation by 2016—little variability exists among the states in terms of standards policy.  Of course, the four states that never adopted CCSS-ELA can serve as a small control group.  But variation is also found in how the states are implementing CCSS.  Some states are pursuing an array of activities and aiming for full implementation earlier rather than later.  Others have a narrow, targeted implementation strategy and are proceeding more slowly. 

The analysis investigates whether CCSS-ELA implementation is related to 2009-2013 gains on the fourth grade NAEP reading test.  The analysis cannot verify causal relationships between the two variables, only correlations.  States that have aggressively implemented CCSS-ELA (referred to as “strong” implementers in the study) evidence a one to one and one-half point larger gain on the NAEP scale compared to non-adopters of the standards.  This association is similar in magnitude to an advantage found in a study of eighth grade math achievement in last year’s BCR.  Although positive, these effects are quite small.  When the 2015 NAEP results are released this winter, it will be important for the fate of the Common Core project to see if strong implementers of the CCSS-ELA can maintain their momentum.

Part three is on student engagement.  PISA tests fifteen-year-olds on three subjects—reading, math, and science—every three years.  It also collects a wealth of background information from students, including their attitudes toward school and learning.  When the 2012 PISA results were released, PISA analysts published an accompanying volume, Ready to Learn: Students’ Engagement, Drive, and Self-Beliefs, exploring topics related to student engagement.

Part three provides secondary analysis of several dimensions of engagement found in the PISA report.  Intrinsic motivation, the internal rewards that encourage students to learn, is an important component of student engagement.  National scores on PISA’s index of intrinsic motivation to learn mathematics are compared to national PISA math scores.  Surprisingly, the relationship is negative.  Countries with highly motivated kids tend to score lower on the math test; conversely, higher-scoring nations tend to have less-motivated kids. 

The same is true for responses to the statements, “I do mathematics because I enjoy it,” and “I look forward to my mathematics lessons.”  Countries with students who say that they enjoy math or look forward to their math lessons tend to score lower on the PISA math test compared to countries where students respond negatively to the statements.  These counterintuitive finding may be influenced by how terms such as “enjoy” and “looking forward” are interpreted in different cultures.  Within-country analyses address that problem.  The correlation coefficients for within-country, student-level associations of achievement and other components of engagement run in the anticipated direction—they are positive.  But they are also modest in size, with correlation coefficients of 0.20 or less. 

Policymakers are interested in questions requiring analysis of aggregated data—at the national level, that means between-country data.  When countries increase their students’ intrinsic motivation to learn math, is there a concomitant increase in PISA math scores?  Data from 2003 to 2012 are examined.  Seventeen countries managed to increase student motivation, but their PISA math scores fell an average of 3.7 scale score points.  Fourteen countries showed no change on the index of intrinsic motivation—and their PISA scores also evidenced little change.  Eight countries witnessed a decline in intrinsic motivation.  Inexplicably, their PISA math scores increased by an average of 10.3 scale score points.  Motivation down, achievement up.

Correlation is not causation.  Moreover, the absence of a positive correlation—or in this case, the presence of a negative correlation—is not refutation of a possible positive relationship.  The lesson here is not that policymakers should adopt the most effective way of stamping out student motivation.  The lesson is that the level of analysis matters when analyzing achievement data.  Policy reports must be read warily—especially those freely offering policy recommendations.  Beware of analyses that exclusively rely on within- or between-country test data without making any attempt to reconcile discrepancies at other levels of analysis.  Those analysts could be cherry-picking the data.  Also, consumers of education research should grant more credence to approaches modeling change over time (as in difference in difference models) than to cross-sectional analyses that only explore statistical relationships at a single point in time. 

Part I: Girls, Boys, and Reading »

Downloads

• Download the report

      

Part II of the 2015 Brown Center Report on American Education

Over the next several years, policy analysts will evaluate the impact of the Common Core State Standards (CCSS) on U.S. education.  The task promises to be challenging.  The question most analysts will focus on is whether the CCSS is good or bad policy.  This section of the Brown Center Report (BCR) tackles a set of seemingly innocuous questions compared to the hot-button question of whether Common Core is wise or foolish.  The questions all have to do with when Common Core actually started, or more precisely, when the Common Core started having an effect on student learning.  And if it hasn’t yet had an effect, how will we know that CCSS has started to influence student achievement? 

The analysis below probes this issue empirically, hopefully persuading readers that deciding when a policy begins is elemental to evaluating its effects.  The question of a policy’s starting point is not always easy to answer.  Yet the answer has consequences.  You can’t figure out whether a policy worked or not unless you know when it began.^[i] 

The analysis uses surveys of state implementation to model different CCSS starting points for states and produces a second early report card on how CCSS is doing.  The first report card, focusing on math, was presented in last year’s BCR.  The current study updates state implementation ratings that were presented in that report and extends the analysis to achievement in reading.  The goal is not only to estimate CCSS’s early impact, but also to lay out a fair approach for establishing when the Common Core’s impact began—and to do it now before data are generated that either critics or supporters can use to bolster their arguments.  The experience of No Child Left Behind (NCLB) illustrates this necessity.

Background

After the 2008 National Assessment of Educational Progress (NAEP) scores were released, former Secretary of Education Margaret Spellings claimed that the new scores showed “we are on the right track.”^[ii] She pointed out that NAEP gains in the previous decade, 1999-2009, were much larger than in prior decades.  Mark Schneider of the American Institutes of Research (and a former Commissioner of the National Center for Education Statistics [NCES]) reached a different conclusion. He compared NAEP gains from 1996-2003 to 2003-2009 and declared NCLB’s impact disappointing.  “The pre-NCLB gains were greater than the post-NCLB gains.”^[iii]  It is important to highlight that Schneider used the 2003 NAEP scores as the starting point for assessing NCLB.  A report from FairTest on the tenth anniversary of NCLB used the same demarcation for pre- and post-NCLB time frames.^[iv]  FairTest is an advocacy group critical of high stakes testing—and harshly critical of NCLB—but if the 2003 starting point for NAEP is accepted, its conclusion is indisputable, “NAEP score improvement slowed or stopped in both reading and math after NCLB was implemented.” 

Choosing 2003 as NCLB’s starting date is intuitively appealing.  The law was introduced, debated, and passed by Congress in 2001.  President Bush signed NCLB into law on January 8, 2002.  It takes time to implement any law.  The 2003 NAEP is arguably the first chance that the assessment had to register NCLB’s effects. 

Selecting 2003 is consequential, however.  Some of the largest gains in NAEP’s history were registered between 2000 and 2003.  Once 2003 is established as a starting point (or baseline), pre-2003 gains become “pre-NCLB.”  But what if the 2003 NAEP scores were influenced by NCLB? Experiments evaluating the effects of new drugs collect baseline data from subjects before treatment, not after the treatment has begun.   Similarly, evaluating the effects of public policies require that baseline data are not influenced by the policies under evaluation.   

Avoiding such problems is particularly difficult when state or local policies are adopted nationally.  The federal effort to establish a speed limit of 55 miles per hour in the 1970s is a good example.  Several states already had speed limits of 55 mph or lower prior to the federal law’s enactment.  Moreover, a few states lowered speed limits in anticipation of the federal limit while the bill was debated in Congress.  On the day President Nixon signed the bill into law—January 2, 1974—the Associated Press reported that only 29 states would be required to lower speed limits.  Evaluating the effects of the 1974 law with national data but neglecting to adjust for what states were already doing would obviously yield tainted baseline data.

There are comparable reasons for questioning 2003 as a good baseline for evaluating NCLB’s effects.  The key components of NCLB’s accountability provisions—testing students, publicizing the results, and holding schools accountable for results—were already in place in nearly half the states.  In some states they had been in place for several years.  The 1999 iteration of Quality Counts, Education Week’s annual report on state-level efforts to improve public education, entitled Rewarding Results, Punishing Failure, was devoted to state accountability systems and the assessments underpinning them. Testing and accountability are especially important because they have drawn fire from critics of NCLB, a law that wasn’t passed until years later.

The Congressional debate of NCLB legislation took all of 2001, allowing states to pass anticipatory policies.  Derek Neal and Diane Whitmore Schanzenbach reported that “with the passage of NCLB lurking on the horizon,” Illinois placed hundreds of schools on a watch list and declared that future state testing would be high stakes.^[v] In the summer and fall of 2002, with NCLB now the law of the land, state after state released lists of schools falling short of NCLB’s requirements.  Then the 2002-2003 school year began, during which the 2003 NAEP was administered.  Using 2003 as a NAEP baseline assumes that none of these activities—previous accountability systems, public lists of schools in need of improvement, anticipatory policy shifts—influenced achievement.  That is unlikely.^[vi]

The Analysis

Unlike NCLB, there was no “pre-CCSS” state version of Common Core.  States vary in how quickly and aggressively they have implemented CCSS.  For the BCR analyses, two indexes were constructed to model CCSS implementation.  They are based on surveys of state education agencies and named for the two years that the surveys were conducted.  The 2011 survey reported the number of programs (e.g., professional development, new materials) on which states reported spending federal funds to implement CCSS.  Strong implementers spent money on more activities.  The 2011 index was used to investigate eighth grade math achievement in the 2014 BCR.  A new implementation index was created for this year’s study of reading achievement.  The 2013 index is based on a survey asking states when they planned to complete full implementation of CCSS in classrooms.  Strong states aimed for full implementation by 2012-2013 or earlier.      

Fourth grade NAEP reading scores serve as the achievement measure.  Why fourth grade and not eighth?  Reading instruction is a key activity of elementary classrooms but by eighth grade has all but disappeared.  What remains of “reading” as an independent subject, which has typically morphed into the study of literature, is subsumed under the English-Language Arts curriculum, a catchall term that also includes writing, vocabulary, listening, and public speaking.  Most students in fourth grade are in self-contained classes; they receive instruction in all subjects from one teacher.  The impact of CCSS on reading instruction—the recommendation that non-fiction take a larger role in reading materials is a good example—will be concentrated in the activities of a single teacher in elementary schools. The burden for meeting CCSS’s press for non-fiction, on the other hand, is expected to be shared by all middle and high school teachers.^[vii] 

Results

Table 2-1 displays NAEP gains using the 2011 implementation index.  The four year period between 2009 and 2013 is broken down into two parts: 2009-2011 and 2011-2013.  Nineteen states are categorized as “strong” implementers of CCSS on the 2011 index, and from 2009-2013, they outscored the four states that did not adopt CCSS by a little more than one scale score point (0.87 vs. -0.24 for a 1.11 difference).  The non-adopters are the logical control group for CCSS, but with only four states in that category—Alaska, Nebraska, Texas, and Virginia—it is sensitive to big changes in one or two states.  Alaska and Texas both experienced a decline in fourth grade reading scores from 2009-2013.

The 1.11 point advantage in reading gains for strong CCSS implementers is similar to the 1.27 point advantage reported last year for eighth grade math.  Both are small.  The reading difference in favor of CCSS is equal to approximately 0.03 standard deviations of the 2009 baseline reading score.  Also note that the differences were greater in 2009-2011 than in 2011-2013 and that the “medium” implementers performed as well as or better than the strong implementers over the entire four year period (gain of 0.99).

Table 2-2 displays calculations using the 2013 implementation index.  Twelve states are rated as strong CCSS implementers, seven fewer than on the 2011 index.^[viii]  Data for the non-adopters are the same as in the previous table.  In 2009-2013, the strong implementers gained 1.27 NAEP points compared to -0.24 among the non-adopters, a difference of 1.51 points.  The thirty-four states rated as medium implementers gained 0.82.  The strong implementers on this index are states that reported full implementation of CCSS-ELA by 2013.  Their larger gain in 2011-2013 (1.08 points) distinguishes them from the strong implementers in the previous table.  The overall advantage of 1.51 points over non-adopters represents about 0.04 standard deviations of the 2009 NAEP reading score, not a difference with real world significance.  Taken together, the 2011 and 2013 indexes estimate that NAEP reading gains from 2009-2013 were one to one and one-half scale score points larger in the strong CCSS implementation states compared to the states that did not adopt CCSS.

Common Core and Reading Content

As noted above, the 2013 implementation index is based on when states scheduled full implementation of CCSS in classrooms.  Other than reading achievement, does the index seem to reflect changes in any other classroom variable believed to be related to CCSS implementation?  If the answer is “yes,” that would bolster confidence that the index is measuring changes related to CCSS implementation. 

Let’s examine the types of literature that students encounter during instruction.  Perhaps the most controversial recommendation in the CCSS-ELA standards is the call for teachers to shift the content of reading materials away from stories and other fictional forms of literature in favor of more non-fiction.  NAEP asks fourth grade teachers the extent to which they teach fiction and non-fiction over the course of the school year (see Figure 2-1). 

Historically, fiction dominates fourth grade reading instruction.  It still does.  The percentage of teachers reporting that they teach fiction to a “large extent” exceeded the percentage answering “large extent” for non-fiction by 23 points in 2009 and 25 points in 2011.  In 2013, the difference narrowed to only 15 percentage points, primarily because of non-fiction’s increased use.  Fiction still dominated in 2013, but not by as much as in 2009.

The differences reported in Table 2-3 are national indicators of fiction’s declining prominence in fourth grade reading instruction.  What about the states?  We know that they were involved to varying degrees with the implementation of Common Core from 2009-2013.  Is there evidence that fiction’s prominence was more likely to weaken in states most aggressively pursuing CCSS implementation? 

Table 2-3 displays the data tackling that question.  Fourth grade teachers in strong implementation states decisively favored the use of fiction over non-fiction in 2009 and 2011.  But the prominence of fiction in those states experienced a large decline in 2013 (-12.4 percentage points).  The decline for the entire four year period, 2009-2013, was larger in the strong implementation states (-10.8) than in the medium implementation (-7.5) or non-adoption states (-9.8).  

Conclusion

This section of the Brown Center Report analyzed NAEP data and two indexes of CCSS implementation, one based on data collected in 2011, the second from data collected in 2013.  NAEP scores for 2009-2013 were examined.  Fourth grade reading scores improved by 1.11 scale score points in states with strong implementation of CCSS compared to states that did not adopt CCSS.  A similar comparison in last year’s BCR found a 1.27 point difference on NAEP’s eighth grade math test, also in favor of states with strong implementation of CCSS.  These differences, although certainly encouraging to CCSS supporters, are quite small, amounting to (at most) 0.04 standard deviations (SD) on the NAEP scale.  A threshold of 0.20 SD—five times larger—is often invoked as the minimum size for a test score change to be regarded as noticeable.  The current study’s findings are also merely statistical associations and cannot be used to make causal claims.  Perhaps other factors are driving test score changes, unmeasured by NAEP or the other sources of data analyzed here. 

The analysis also found that fourth grade teachers in strong implementation states are more likely to be shifting reading instruction from fiction to non-fiction texts.  That trend should be monitored closely to see if it continues.  Other events to keep an eye on as the Common Core unfolds include the following:

1.  The 2015 NAEP scores, typically released in the late fall, will be important for the Common Core.  In most states, the first CCSS-aligned state tests will be given in the spring of 2015.  Based on the earlier experiences of Kentucky and New York, results are expected to be disappointing.  Common Core supporters can respond by explaining that assessments given for the first time often produce disappointing results.  They will also claim that the tests are more rigorous than previous state assessments.  But it will be difficult to explain stagnant or falling NAEP scores in an era when implementing CCSS commands so much attention.   

2.  Assessment will become an important implementation variable in 2015 and subsequent years.  For analysts, the strategy employed here, modeling different indicators based on information collected at different stages of implementation, should become even more useful.  Some states are planning to use Smarter Balanced Assessments, others are using the Partnership for Assessment of Readiness for College and Careers (PARCC), and still others are using their own homegrown tests.   To capture variation among the states on this important dimension of implementation, analysts will need to use indicators that are up-to-date.

3.  The politics of Common Core injects a dynamic element into implementation.  The status of implementation is constantly changing.  States may choose to suspend, to delay, or to abandon CCSS.  That will require analysts to regularly re-configure which states are considered “in” Common Core and which states are “out.”  To further complicate matters, states may be “in” some years and “out” in others.

A final word.  When the 2014 BCR was released, many CCSS supporters commented that it is too early to tell the effects of Common Core.  The point that states may need more time operating under CCSS to realize its full effects certainly has merit.  But that does not discount everything states have done so far—including professional development, purchasing new textbooks and other instructional materials, designing new assessments, buying and installing computer systems, and conducting hearings and public outreach—as part of implementing the standards.  Some states are in their fifth year of implementation.  It could be that states need more time, but innovations can also produce their biggest “pop” earlier in implementation rather than later.  Kentucky was one of the earliest states to adopt and implement CCSS.  That state’s NAEP fourth grade reading score declined in both 2009-2011 and 2011-2013.  The optimism of CCSS supporters is understandable, but a one and a half point NAEP gain might be as good as it gets for CCSS.

« Part I: Girls, boys, and reading

Part III: Student Engagement »

Downloads

• Download the report

      

       

       

Tom Loveless, a nonresident senior fellow in Governance Studies, explains his latest research on measuring achievement of American students.

“The bottom line here: the implementation of the common core has appeared to have very little impact on student achievement,” Loveless says. In this episode, he discusses whether the common core is failing our students, whether AP achievement is indicative of student success, and the role of principals as instructional leaders.

Also in this episode: Get to know Constanze Stelzenmüller, the Robert Bosch Senior Fellow in the Center on the United States and Europe, during our "Coffee Break” segment. Also stay tuned to hear the final episode in our centenary series with current and past Brookings scholars.

Show Notes:

The Brown Center Report on American Education

Brookings Centenary Timeline

---

Subscribe to the Brookings Cafeteria on iTunes, listen in all the usual places, and send feedback email to BCP@Brookings.edu.

       

The addition of Medicare in 1965 completed a suite of federal programs designed to protect the wealth and health of people reaching older ages in the United States, starting with the Committee on Economic Security of 1934—known today as Social Security. While few would deny Medicare’s important role in improving older and disabled Americans’ financial security and health, many worry about sustaining and strengthening Medicare to finance high-quality, affordable health care for coming generations.

In 1965, average life expectancy for a 65-year-old man and woman was another 13 years and 16 years, respectively. Now, life expectancy for 65-year-olds is 18 years for men and 20 years for women—effectively a four- to five-year increase.

In 2011, the first of 75-million-plus baby boomers became eligible for Medicare. And by 2029, when all of the baby boomers will be 65 or older, the U.S. Census Bureau predicts 20 percent of the U.S. population will be older than 65. Just by virtue of the sheer size of the aging population, Medicare spending growth will accelerate sharply in the coming years.

---

Estimated Medicare Spending, 2010-2030

      

Medicare Hospital Insurance and Social Security would not add to deficits because they can’t spend money they don’t have.

The dog days of August have given way to something much worse. Congress returned to session this week, and the rest of the year promises to be nightmarish. The House and Senate passed budget resolutions earlier this year calling for nearly $5 trillion in spending cuts by 2025. More than two-thirds of those cuts would come from programs that help people with low-and moderate-incomes. Health care spending would be halved. If such cuts are enacted, the president will likely veto them. At best, another partisan budget war will ensue after which the veto is sustained. At worst, the cuts become law.

The putative justification for these cuts is that the nation faces insupportable increases in public debt because of expanding budget deficits. Even if the projections were valid, it would be prudent to enact some tax increases in order to preserve needed public spending. But the projections of explosively growing debt are not valid. They are fantasy.

Wait! you say. The Congressional Budget Office has been telling us for years about the prospect of rising deficit and exploding debt. They repeated those warnings just two months ago. Private organizations of both the left and right agree with the CBO’s projections, in general if not in detail. How can any sane person deny that the nation faces a serious long-term budget deficit problem?

The answer is simple: The CBO and private organizations use a convention in preparing their projections that is at odds with established policy and law. If, instead, projections are based on actual current law, as they claim to be, the specter of an increasing debt burden vanishes. What is that convention? Why is it wrong? Why did CBO adopt it, and why have others kept it?

CBO’s budget projections cover the next 75 years. Its baseline projections claim to be based on current law and policy. (CBO also presents an ‘alternative scenario’ based on assumed changes in law and policy). Within that period, Social Security (OASDI) and Medicare Hospital Insurance (HI) expenditures are certain to exceed revenues earmarked to pay for them. Both are financed through trust funds. Both funds have sizeable reserves — government securities — that can be used to cover short falls for a while. But when those reserves are exhausted, expenditures cannot exceed current revenues. Trust fund financing means that neither Social Security nor Medicare Hospital Insurance can run deficits. Nor can they add to the public debt.

Nonetheless, CBO and other organizations assume that Social Security and Medicare Hospital Insurance can and will spend money they don’t have and that current law bars them from spending.

One of the reasons why trust fund financing was used, first for Social Security and then for Medicare Hospital Insurance, was to create a framework that disciplined Congress earmarked to earmark sufficient revenues to pay for benefits it might award. Successive presidents and Congresses, both Republican and Democratic, have repeatedly acted to prevent either program’s cumulative spending from exceeding cumulative revenues. In 1983, for example, faced with an impending trust fund shortfall, Congress cut benefits and raised taxes enough to turn prospective cash flow trust fund deficits into cash flow surpluses. And President Reagan signed the bill. In so doing, they have reaffirmed the discipline imposed by trust fund financing.

Trust fund accounting explains why people now are worrying about the adequacy of funding for Social Security and Medicare. They recognize that the trust funds will be depleted in a couple of decades. They understand that between now and then Congress must either raise earmarked taxes or fashion benefit cuts. If it doesn’t raise taxes, benefits will be cut across the board. Either way, the deficits that CBO and other organizations have built into their budget projections will not materialize.

The implications for projected debt of CBO’s inclusion in its projections of deficits that current law and established policy do not allow are enormous, as the graph below shows.

If one excludes deficits in Social Security and Medicare Hospital Insurance that cannot occur under current law and established policy, the ratio of national debt to gross domestic product will fall, not rise, as CBO budget projections indicate. In other words, the claim that drastic cuts in government spending are necessary to avoid calamitous budget deficits is bogus.

It might seem puzzling that CBO, an agency known for is professionalism and scrupulous avoidance of political bias, would adopt a convention so at odds with law and policy. The answer is straightforward—Congress makes them do it. Section 257 of the Balanced Budget and Emergency Deficit Control Act of 1985 requires CBO to assume that the trust funds can spend money although legislation governing trust fund operations bars such expenditures. CBO is obeying the law.

No similar explanation exonerates the statement of the Committee for a Responsible Federal Budget, which on August 25, 2015 cited, with approval, the conclusion that ‘debt continues to grow unsustainably,’ or that of the Bipartisan Policy Center, which wrote on the same day that ‘America’s debt continues to grow on an unsustainable path.’ Both statements are wrong.

To be sure, the dire budget future anticipated in the CBO projections could materialize. Large deficits could result from an economic calamity or war. Congress could abandon the principle that Social Security and Medicare Hospital Insurance should be financed within trust funds. It could enact other fiscally rash policies. But such deficits do not flow from current law or reflect the trust fund discipline endorsed by both parties over the last 80 years. And it is current law and policy that are supposed to underlie budget projections. Slashing spending because a thirty-year old law requires CBO to assume that Congress will do something it has shown no sign of doing—overturn decades of bipartisan prudence requiring that the major social insurance programs spend only money specifically earmarked for them, and not a penny more—would impose enormous hardship on vulnerable populations in the name of a fiscal fantasy.

---

Editor's Note: This post originally appeared in Fortune Magazine.

      

As government funding for disability insurance is expected to run out next year, Congress should re-evaluate the costs of the program.

Nine million people in America today are receiving Social Security Disability Insurance, double the number in 1995 and six times the number in 1970. With statistics like that, it’s hardly surprising to see some in Congress worry that more will enroll in the program and costs would continue to rise, especially since government funding for disability insurance is expected to run out by the end of next year. If Congress does nothing, benefits would fall by 19% immediately following next year’s presidential election. So, Congress will likely do something. But what exactly should it do?

Funding for disability insurance has nearly run out of money before. Each time, Congress has simply increased the share of the Social Security payroll tax that goes for disability insurance. This time, however, many members of Congress oppose such a shift unless it is linked to changes that curb eligibility and promote return to work. They fear that rolls will keep growing and costs would keep rising, but findings from a report by a government panel conclude that disability insurance rolls have stopped rising and will likely shrink. The report, authored by a panel of the Social Security Advisory Board, is important in that many of the factors that caused disability insurance to rise, particularly during the Great Recession, have ended.

• Baby-boomers, who added to the rolls as they reached the disability-prone middle age years, are aging out of disability benefits and into retirement benefits. 


• The decades-long flood of women increased the pool of people with the work histories needed to be eligible for disability insurance. But women’s labor force participation has fallen a bit from pre-Great Recession peaks, and is not expected again to rise materially. 


• The Great Recession, which led many who lost jobs and couldn’t find work to apply for disability insurance, is over and applications are down. A recession as large as that of 2008 is improbable any time soon. 


• Approval rates by administrative law judges, who for many years were suspected of being too ready to approve applications, have been falling. Whatever the cause, this stringency augurs a fall in the disability insurance rolls.

      

Two recently posted papers by Brookings colleagues purport to show that “even a large increase in the top marginal rate would barely reduce inequality.”[1]  This conclusion, based on one commonly used measure of inequality, is an incomplete and misleading answer to the question posed: would a stand-alone increase in the top income tax bracket materially reduce inequality?  More importantly, it is the wrong question to pose, as a stand-alone increase in the top bracket rate would be bad tax policy that would exacerbate tax avoidance incentives.  Sensible tax policy would package that change with at least one other tax modification, and such a package would have an even more striking effect on income inequality.  In brief:

• A stand-alone increase in the top tax bracket would be bad tax policy, but it would meaningfully increase the degree to which the tax system reduces economic inequality.  It would have this effect even though it would fall on just ½ of 1 percent of all taxpayers and barely half of their income.
• Tax policy significantly reduces inequality.  But transfer payments and other spending reduce it far more.  In combination, taxes and public spending materially offset the inequality generated by market income.
• The revenue from a well-crafted increase in taxes on upper-income Americans, dedicated to a prudent expansions of public spending, would go far to counter the powerful forces that have made income inequality more extreme in the United States than in any other major developed economy.

---

[1] The quotation is from Peter R. Orszag, “Education and Taxes Can’t Reduce Inequality,” Bloomberg View, September 28, 2015 (at http://bv.ms/1KPJXtx). The two papers are William G. Gale, Melissa S. Kearney, and Peter R. Orszag, “Would a significant increase in the top income tax rate substantially alter income inequality?” September 28, 2015 (at http://brook.gs/1KK40IX) and “Raising the top tax rate would not do much to reduce overall income inequality–additional observations,” October 12, 2015 (at http://brook.gs/1WfXR2G). 

Downloads

• Download the paper

      

Social Security faces a financial shortfall. If Congress does nothing about it, current projections indicate that benefits will be cut automatically by 21 percent in 2034. Congress could close the gap by raising revenues, lowering benefits, or doing some of both. If benefits seem generous, Congress is likely to lean toward benefit cuts more than revenue increases. If they seem stingy, then the reverse.

Given the split between the two parties on whether to cut benefits or to raise them, evidence on the adequacy of benefits is central to this key policy debate. Those perceptions will help determine whether Social Security continues to provide basic retirement income for workers with comparatively low earnings histories and a foundation of retirement income for most others or it will become just a minimal safety-net backstop against extreme destitution?

Down-in-the-weeds disagreements among analysts often seem too arcane for anyone other than specialists. But sometimes they are too important to ignore. A current debate about the adequacy of Social Security benefits is an example.

The not-so-simple question is this: are Social Security benefits ‘generous’ or ‘stingy’? To answer this question, people long looked to the Office of the Social Security Actuary. For many years that office published estimates of something called the ‘replacement rate’—that is, how high are benefits paid to retirees and the disabled relative what they earned during their working years. A 2014 retiree with median earnings had average lifetime earnings of about $46,000. That worker qualified for a benefit at age 66 of about $19,000, a replacement rate of about 41%. Replacement rates vary with earnings. Dollar benefits rise with earnings, but they rise less than proportionately. As a result, replacement rates of low earners are higher than replacement rates of high earners.

As you might suppose, there are many ways in which to compute such ‘replacement rates. Because of analytical disputes on which method is best, the Social Security trustees in 2014 decided to stop including replacement rate estimates in their annual reports.

In December 2015, the Congressional Budget Office (CBO) offered what it considered a better measure of the generosity of Social Security. It estimated that replacement rates for middle income recipients were about 60%–dramatically higher than the 41% that the Social Security Trustees had estimated.

The gap between the estimates of CBO and those of Social Security is even larger than it seems. To see why, one needs to recognize that to sustain living standards retirees on average need only about 75% to 80% as much income as they did when working. Retirees need less income because they are spared some work-related expenses, such as transportation to and from work. Those are only average of course; some need more, some less.

If one believed the SSA actuaries, Social Security provides median earners barely more than half of what they need to be as well off as they were when working. Benefit cuts from that modest level would threaten the well-being for the majority of retirees who are entirely or mostly dependent on Social Security benefits—and especially for those with large medical expenses uncovered by Medicare.

On the other hand, if one accepted CBO’s estimates, Social Security provids more than three-quarters of the retirement income target. Against that baseline, benefit cuts would still sting, but they would pose less of a threat, and not much of a threat at all for most retirees who have some income from private pensions or personal savings.

When the CBO estimates came out, conservative commentators welcomed the findings and cited CBO’s well-established and well-earned reputation for objectivity. They correctly noted that many retirees have additional income from private pensions, 401ks, or other personal savings, and asserted that there was no general retirement income shortage. By inference, cutting benefits a bit to help close the long-term funding gap would be no big deal. Social Security advocates were put on the defensive, hard-pressed to challenge the estimates of the widely-respected Congressional Budget Office.

But earlier this year, CBO acknowledged that it had made mistakes in its Decameter estimates and revised them. The new CBO estimate put the replacement rate for middle-level earners at around 42%, almost the same as the estimate of the Social Security actuaries, not the much higher level that had sent ripples through the policy community. One conservative analyst, Andrew Biggs, who had trumpeted the initial CBO finding in The Wall Street Journal, promptly and honorably retracted his article.

Two aspects of this green-eyeshade kerfuffle stand out. The first is that policy debates often depend on obscure technical analyses that are, in turn, remarkably sensitive to ‘black-box’ methods to which few or no outsiders have ready access. The second is that CBO burnished its reputation for honesty by owning up to its own mistakes — in this case, a whopping overestimate of a key number. Such candor is all too rare; it merits notice and praise.

But there is a broader lesson as well. Technical issues of comparable complexity surround numerous current political disputes. Is Bernie Sanders’ single-payer plan affordable? Will Marco Rubio’s tax plan cause deficits to balloon? To vote rationally, people must struggle to see through the rhetorical chaff that surrounds candidates’ favorite claims. There is, alas, no substitute for paying close attention to the data, even if they are ‘down in the weeds.’

---

Editor's note: This piece originally appeared in Fortune.

       

Recently, Brookings has posted two articles commenting on proposals to raise the full retirement age for Social Security retirement benefits from 67 to 70. One revealed a fundamental misunderstanding of how the program actually works and what the effects of the policy change would be. The other proposes changes to the system that would subvert the fundamental purpose of the Social Security in the name of ‘reforming’ it.

A number of Republican presidential candidates and others have proposed raising the full retirement age. In a recent blog, Robert Shapiro, a Democrat, opposed this move, a position I applaud. But he did so based on alleged effects the proposal would in fact not have, and misunderstanding about how the program actually works. In another blog, Stuart Butler, a conservative, noted correctly that increasing the full benefit age would ‘bolster the system’s finances,’ but misunderstood this proposal’s effects. He proposed instead to end Social Security as a universal pension based on past earnings and to replace it with income-related welfare for the elderly and disabled (which he calls insurance).

Let’s start with the misunderstandings common to both authors and to many others. Each writes as if raising the ‘full retirement age’ from 67 to 70 would fall more heavily on those with comparatively low incomes and short life expectancies. In fact, raising the ‘full retirement age’ would cut Social Security Old-Age Insurance benefits by the same proportion for rich and poor alike, and for people whose life expectancies are long or short. To see why, one needs to understand how Social Security works and what ‘raising the full retirement age’ means.

People may claim Social Security retirement benefits starting at age 62. If they wait, they get larger benefits—about 6-8 percent more for each year they delay claiming up to age 70. Those who don’t claim their benefits until age 70 qualify for benefits -- 77 percent higher than those with the same earnings history who claim at age 62. The increments approximately compensate the average person for waiting, so that the lifetime value of benefits is independent of the age at which they claim. Mechanically, the computation pivots on the benefit payable at the ‘full retirement age,’ now age 66, but set to increase to age 67 under current law. Raising the full retirement age still more, from 67 to 70, would mean that people age 70 would get the same benefit payable under current law at age 67. That is a benefit cut of 24 percent. Because the annual percentage adjustment for waiting to claim would be unchanged, people who claim benefits at any age, down to age 62, would also receive benefits reduced by 24 percent.

In plain English, ‘raising the full benefit age from 67 to 70' is simply a 24 percent across-the-board cut in benefits for all new claimants, whatever their incomes and whatever their life-expectancies.

Thus, Robert Shapiro mistakenly writes that boosting the full-benefit age would ‘effectively nullify Social Security for millions of Americans’ with comparatively low life expectancies. It wouldn’t. Anyone who wanted to claim benefits at age 62 still could. Their benefits would be reduced. But so would benefits of people who retire at older ages.

Equally mistaken is Stuart Butler’s comment that increasing the full-benefit age from 67 to 70 would ‘cut total lifetime retirement benefits proportionately more for those on the bottom rungs of the income ladder.’ It wouldn’t. The cut would be proportionately the same for everyone, regardless of past earnings or life expectancy.

Both Shapiro and Butler, along with many others including my other colleagues Barry Bosworth and Gary Burtless, have noted correctly that life expectancies of high earners have risen considerably, while those of low earners have risen little or not at all. As a result, the lifetime value of Social Security Old-Age Insurance benefits has grown more for high- than for low-earners. That development has been at least partly offset by trends in Social Security Disability Insurance, which goes disproportionately to those with comparatively low earnings and life expectancies and which has been growing far faster than Old-Age Insurance, the largest component of Social Security.

But even if the lifetime value of all Social Security benefits has risen faster for high earners than for low earners, an across the board cut in benefits does nothing to offset that trend. In the name of lowering overall Social Security spending, it would cut benefits by the same proportion for those whose life expectancies have risen not at all because the life expectancy of others has risen. Such ‘evenhandeness’ calls to mind Anatole France’s comment that French law ‘in its majestic equality, ...forbids rich and poor alike to sleep under bridges, beg in streets, or steal loaves of bread.’

Faulty analyses, such as those of Shapiro and Butler, cannot conceal a genuine challenge to policy makers. Social Security does face a projected, long-term funding shortfall. Trends in life expectancies may well have made the system less progressive overall than it was in the past. What should be done?

For starters, one needs to recognize that for those in successive age cohorts who retire at any given age, rising life expectancy does not lower, but rather increases their need for Social Security retirement benefits because whatever personal savings they may have accumulated gets stretched more thinly to cover more retirement years.

For those who remain healthy, the best response to rising longevity may be to retire later. Later retirement means more time to save and fewer years to depend on savings. Here is where the wrong-headedness of Butler’s proposal, to phase down benefits for those with current incomes of $25,000 or more and eliminate them for those with incomes over $100,000, becomes apparent. The only source of income for full retirees is personal savings and, to an ever diminishing degree, employer-financed pensions. Converting Social Security from a program whose benefits are based on past earnings to one that is based on current income from savings would impose a tax-like penalty on such savings, just as would a direct tax on those savings. Conservatives and liberals alike should understand that taxing something is not the way to encourage it.

Still, working longer by definition lowers retirement income needs. That is why some analysts have proposed raising the age at which retirement benefits may first be claimed from age 62 to some later age. But this proposal, like across-the-board benefit cuts, falls alike on those who can work longer without undue hardship and on those in physically demanding jobs they can no longer perform, those whose abilities are reduced, and those who have low life expectancies. This group includes not only blue-collar workers, but also many white-collar employees, as indicated by a recent study of the Boston College Retirement Center. If entitlement to Social Security retirement benefits is delayed, it is incumbent on policymakers to link that change to other ‘backstop’ policies that protect those for whom continued work poses a serious burden. It is also incumbent on private employers to design ways to make workplaces friendlier to an aging workforce.

The challenge of adjusting Social Security in the face of unevenly distributed increases in longevity, growing income inequality, and the prospective shortfall in Social Security financing is real. The issues are difficult. But solutions are unlikely to emerge from confusion about the way Social Security operates and the actual effects of proposed changes to the program. And it will not be advanced by proposals that would bring to Social Security the failed Vietnam War strategy of destroying a village in order to save it.

       

Only days before her retirement at age 71, Kathleen Elliott Yinug succumbed to a recurrence of cancer, which had been in remission for fifteen years. Over a Brookings career spanning four decades, she not only assisted several members of the Brookings community, but also became their valued friend. A woman of intelligence and liberal values, she elicited, demanded, and merited the respect of all with whom she worked.

After college, she joined the Peace Corps and was sent to the island of Yap. There she met her husband to be and there her son, Falan, was born. The family returned to the United States so that her husband could attend law school. Kathleen came to work at Brookings, helping to support her husband's law school training. When he returned to Yap, Kathleen assumed all parental responsibility. Her son has grown into a man of character, a devoted husband and father of two daughters. He and his wife, Louise, with compassion and generosity, made their home Kathleen's refuge during her final illness. Over extended periods, she held second jobs to supplement her Brookings income.

Her personal warmth, openness, and personal integrity made her a natural confidante of senior fellows, staff assistants, and research assistants, alike. She demanded and received respect from all. Her judgment on those who did not meet her standards was blunt and final; on one occasion, she 'fired'—that is, flatly refused to work with—one senior staff member whose behavior and values she rightly deplored.

With retirement approaching, Kathleen bought a condominium in Maine, a place she had come to love after numerous visits with her long-time friend, Lois Rice. After additional visits, her affection for Maine residents and the community she had chosen deepened. She spoke with intense yearning for the post-retirement time when she could take up life in her new home. That she was denied that time is a cruel caprice of life and only deepens the sense of loss of those who knew and loved her.

       

       

       

       

       

       

       

       

       

       

In their recent blog for Social Mobility Memos, Brad Wilcox, Robert Lerman, and Joseph Price make a convincing case that a stable family structure is an important factor in increased social mobility, higher economic growth, and less poverty over time.

Why is marriage so closely tied to family income?

The interesting question is: what lies behind this relationship? Why is a rise (or a smaller decline) in the proportion of married families associated, for example, with higher growth in average family incomes or a decline in poverty? The authors suggest a number of reasons, including the positive effects of marriage for children, less crime, men’s engagement in work, and income pooling. Of these, however, income pooling is by far the most important. Individual earnings have increased very little, if at all, over the past three or four decades, so the only way for families to get ahead was to add a second earner to the household. This is only possible within marriage or some other type of income pooling arrangement like cohabitation. Marriage here is the means: income pooling is the end.

Is marriage the best route to income pooling?

How do we encourage more people to share incomes and expenses? There are no easy answers. Wilcox and his co-authors favor reducing marriage penalties in tax and benefit programs, expanding training and apprenticeship programs, limiting divorces in cases where reconciliation is still possible, and civic efforts to convince young people to follow what I and others have called the “success sequence.” All of these ideas are fine in principle. The question is how much difference they can make in practice. Previous efforts have had at best modest results, as a number of articles in the recent issue of the Brookings-Princeton journal The Future of Children point out.      

Start the success sequence with a planned pregnancy

Our success sequence, which Wilcox wants to use as the basis for a pro-marriage civic campaign, requires teens and young adults to complete their education, get established in a job, and to delay childbearing until after they are married. The message is the right one.

The problem is that many young adults are having children before marriage. Why? Early marriage is not compatible, in their view, with the need for extended education and training. They also want to spend longer finding the best life partner. These are good reasons to delay marriage. But pregnancies and births still occur, with or without marriage. For better or worse, our culture now tolerates, and often glamorizes, multiple relationships, including premarital sex and unwed parenting. This makes bringing back the success sequence difficult.

Our best bet is to help teens and young adults avoid having a child until they have completed their education, found a steady job, and most importantly, a stable partner with whom they want to raise children, and with whom they can pool their income. In many cases this means marriage; but not in all. The bottom line: teens and young adults need more access and better education and counselling on birth control, especially little-used but highly effective forms as the IUD and the implant. Contraception, not marriage, is where we should be focusing our attention.

      

If you’re reading this article, chances are you know people who are still getting married. But it’s getting rarer, especially among the youngest generation and those who are less educated. We used to assume people would marry before having children. But marriage is no longer the norm. Half of all children born to women under 30 are born out of wedlock. The proportion is even higher among those without a college degree.

What’s going on here? Most of today’s young adults don’t feel ready to marry in their early 20s. Many have not completed their educations; others are trying to get established in a career; and many grew up with parents who divorced and are reluctant to make a commitment or take the risks associated with a legally binding tie.

But these young people are still involved in romantic relationships. And yes, they are having sex. Any stigma associated with premarital sex disappeared a long time ago, and with sex freely available, there’s even less reason to bother with tying the knot. The result: a lot of drifting into unplanned pregnancies and births to unmarried women and their partners with the biggest problems now concentrated among those in their 20s rather than in their teens. (The teen birth rate has actually declined since the early 1990s.)

Does all of this matter? In a word, yes.

These trends are not good for the young people involved and they are especially problematic for the many children being born outside marriage. The parents may be living together at the time of the child’s birth but these cohabiting relationships are highly unstable. Most will have split before the child is age 5.

Social scientists who have studied the resulting growth of single-parent families have shown that the children in these families don’t fare as well as children raised in two-parent families. They are four or five times as likely to be poor; they do less well in school; and they are more likely to engage in risky behaviors as adolescents. Taxpayers end up footing the bill for the social assistance that many of these families need.

Is there any way to restore marriage to its formerly privileged position as the best way to raise children? No one knows. The fact that well-educated young adults are still marrying is a positive sign and a reason for hope. On the other hand, the decline in marriage and rise in single parenthood has been dramatic and the economic and cultural transformations behind these trends may be difficult to reverse.

Women are no longer economically dependent on men, jobs have dried up for working-class men, and unwed parenthood is no longer especially stigmatized. The proportion of children raised in single-parent homes has, as a consequence, risen from 5 percent in 1960 to about 30 percent now.

Conservatives have called for the restoration of marriage as the best way to reduce poverty and other social ills. However, they have not figured out how to do this.

The George W. Bush administration funded a series of marriage education programs that failed to move the needle in any significant way. The Clinton administration reformed welfare to require work and thus reduced any incentive welfare might have had in encouraging unwed childbearing. The retreat from marriage has continued despite these efforts. We are stuck with a problem that has no clear governmental solution, although religious and civic organizations can still play a positive role.

But perhaps the issue isn’t just marriage. What may matter even more than marriage is creating stable and committed relationships between two mature adults who want and are ready to be parents before having children. That means reducing the very large fraction of births to young unmarried adults that occur before these young people say they are ready for parenthood.

Among single women under the age of 30, 73 percent of all pregnancies are, according to the woman herself, either unwanted or badly mistimed. Some of these women will go on to have an abortion but 60 percent of all of the babies born to this group are unplanned.

As I argue in my book, “Generation Unbound,” we need to combine new cultural messages about the importance of committed relationships and purposeful childbearing with new ways of helping young adults avoid accidental pregnancies. The good news here is that new forms of long-acting but fully reversible contraception, such as the IUD and the implant, when made available to young women at no cost and with good counseling on their effectiveness and safety, have led to dramatic declines in unplanned pregnancies. Initiatives in the states of Colorado and Iowa, and in St. Louis have shown what can be accomplished on this front.

Would greater access to the most effective forms of birth control move the needle on marriage? Quite possibly. Unencumbered with children from prior relationships and with greater education and earning ability, young women and men would be in a better position to marry. And even if they fail to marry, they will be better parents.

My conclusion: marriage is in trouble and, however desirable, will be difficult to restore. But we can at least ensure that casual relationships outside of marriage don’t produce children before their biological parents are ready to take on one of the most difficult social tasks any of us ever undertakes: raising a child. Accidents happen; a child shouldn’t be one of them.

---

Editor's Note: this piece originally appeared in Inside Sources.

      

The issue of paid leave is heating up in 2016. At least two presidential candidates — Democrat Hillary Clinton and Republican Sen. Marco Rubio (Fla.) — have proposed new federal policies. Several states and large cities have begun providing paid leave to workers when they are ill or have to care for a newborn child or other family member.

This forward movement on paid-leave policy makes sense. The United States is the only advanced country without a paid-leave policy. While some private and public employers already provide paid leave to their workers, the workers least likely to get paid leave are low-wage and low-income workers who need it most. They also cannot afford to take unpaid leave, which the federal government mandates for larger companies.

Paid leave is good for the health and development of children; it supports work, enabling employees to remain attached to the labor force when they must take leave; and it can lower costly worker turnover for employers. Given the economic and social benefits it provides and given that the private market will not generate as much as needed, public policies should ensure that such leave is available to all.

But it is important to do so efficiently, so as not to burden employers with high costs that could lead them to substantially lower wages or create fewer jobs.

States and cities that require employers to provide paid sick days mandate just a small number, usually three to seven days. Family or temporary disability leaves that must be longer are usually financed through small increases in payroll taxes paid by workers and employers, rather than by employer mandates or general revenue.

Policy choices could limit costs while expanding benefits. For instance, states should limit eligibility to workers with experience, such as a year, and it might make sense to increase the benefit with years of accrued service to encourage labor force attachment. Some states provide four to six weeks of family leave, though somewhat larger amounts of time may be warranted, especially for the care of newborns, where three months seems reasonable.

Paid leave need not mean full replacement of existing wages. Replacing two-thirds of weekly earnings up to a set limit is reasonable. The caps and partial wage replacement give workers some incentive to limit their use of paid leave without imposing large financial burdens on those who need it most.

While many states and localities have made sensible choices in these areas, some have not. For instance, the D.C. Council has proposed paid-leave legislation for all but federal workers that violates virtually all of these rules. It would require up to 16 weeks of temporary disability leave and up to 16 weeks of paid family leave; almost all workers would be eligible for coverage, without major experience requirements; and the proposed law would require 100 percent replacement of wages up to $1,000 per week, and 50 percent coverage up to $3,000. It would be financed through a progressive payroll tax on employers only, which would increase to 1 percent for higher-paid employees.

Our analysis suggests that this level of leave would be badly underfunded by the proposed tax, perhaps by as much as two-thirds. Economists believe that payroll taxes on employers are mostly paid through lower worker wages, so the higher taxes needed to fully fund such generous leave would burden workers. The costly policy might cause employers to discriminate against women.

The disruptions and burdens of such lengthy leaves could cause employers to hire fewer workers or shift operations elsewhere over time. This is particularly true here, considering that the D.C. Council already has imposed costly burdens on employers, such as high minimum wages (rising to $11.50 per hour this year), paid sick leave (although smaller amounts than now proposed) and restrictions on screening candidates. The minimum wage in Arlington is $7.25 with no other mandates. Employers will be tempted to move operations across the river or to replace workers with technology wherever possible.

Cities, states and the federal government should provide paid sick and family leave for all workers. But it can and should be done in a fiscally responsible manner that does not place undue burdens on the workers themselves or on their employers.

---

Editor's note: this piece originally appeared in The Washington Post. 

      

Senior Fellows Ron Haskins and Isabel Sawhill are the first joint recipients of the Daniel Patrick Moynihan Prize from the American Academy of Political and Social Science (AAPSS). The prize is awarded each year to a leading policymaker, social scientist, or public intellectual whose career focuses on advancing the public good through social science. It was named after the late senator from New York and renowned sociologist Daniel Patrick Moynihan. The pair accepted the award May 12 at a ceremony in Washington, DC. 

In their joint lecture delivered at the ceremony, Haskins and Sawhill emphasized the importance of evidence-based public policy, highlighting Sawhill’s latest work in her book, Generation Unbound (Brookings, 2014). Watch their entire speech here:

“Marriage is disappearing and more and more babies are born outside marriage,” Sawhill said during the lecture. “Right now, the proportion born outside of marriage is about 40 percent. It’s higher than that among African Americans and lower than that among the well-educated. But it’s no longer an issue that just affects the poor or minority groups.”

Download Sawhill's slides » | Download Ron Haskins' slides »

The power of evidence-based policy is finally being recognized, Haskins added. “One of the prime motivating factors of the current evidence-based movement,” he said, “is the understanding, now widespread, that most social programs either have not been well evaluated or they don’t work.” Haskins continued:

Perhaps the most important social function of social science is to find and test programs that will reduce the nation’s social problems. The exploding movement of evidence-based policy and the many roots the movement is now planting, offer the best chance of fulfilling this vital mission of social science, of achieving, in other words, exactly the outcomes Moynihan had hoped for.

He pointed toward the executive branch, state governments, and non-profits implementing policies that could make substantial progress against the nation’s social problems.

Richard Reeves, a senior fellow at Brookings and co-director, with Haskins, of the Center on Children and Families (CCF), acknowledged Haskins and Sawhill’s “powerful and unique intellectual partnership” and their world-class work on families, poverty, opportunity, evidence, parenting, work, and education.

Haskins and Sawhill were the first to be awarded jointly by the AAPSS, which recognizes their 15-year collaboration at Brookings and the Center on Children and Families, which they established. In addition to their work at CCF, the two co-wrote Creating an Opportunity Society (Brookings 2009) and serve as co-editors of The Future of Children, a policy journal that tackles issues that have an impact on children and families.

Haskins and Sawhill join the ranks of both current and past Brookings scholars who have received the Moynihan Prize, including Alice Rivlin (recipient of the inaugural prize), Rebecca Blank, and William Julius Wilson along with other distinguished scholars and public servants.

Want to learn more about the award’s namesake? Read Governance Studies Senior Fellow and historian Steve Hess’s account of Daniel Patrick Moynihan’s time in the Nixon White House in his book The Professor and the President (Brookings, 2014).

       

When Franklin Roosevelt delivered his second inaugural address on January 20, 1936 he lamented the “one-third of a nation ill-housed, ill-clad, ill-nourished.” He challenged Americans to measure their collective progress not by “whether we add more to the abundance of those who have much; [but rather] whether we provide enough for those who have too little.” In our new paper, One third of a nation: Strategies for helping working families, we ask a simple question: How are we doing?

In brief, we find that:

• The gulf in labor market income between the haves and have-nots remains wide. The median income of households in the bottom third in 2014 was $24,000, just a little more than a quarter of the median of $90,000 for the top two-thirds.
• The bottom-third households are disproportionately made up of minority adults, adults with limited educational attainment, and single parents.  
• The most important reason for the low incomes of the bottom third is a “work gap”: the fact that many are not employed at all, or work limited hours. 

The work gap

The decline in labor force participation rates has been widely documented, but the growing gulf in the work gap between the bottom third and the rest of the population is truly striking:

While the share of men who are employed in the top two-thirds has been quite stable since 1980, lower-income men’s work rates have declined by 11 percentage points. What about women?

Middle- and upper-income women have increased their work rates by 13 percentage points. This has helped maintain or even increase their family’s income. But employment rates among lower-income women have been flat, despite reforms of the welfare system and safety net designed to encourage work.

Why the lack of paid work for the bottom third?

Many on the left point to problems like low pay and lack of access to affordable childcare, and so favor a higher minimum wage and more subsidies for daycare. For many conservatives, the problem is rooted in family breakdown and a dependency-inducing safety net. They therefore champion proposals like marriage promotion programs and strict work requirements for public benefits. Most agree about the importance of education.

We model the impact of a range of such proposals, using data from the Census Bureau, specifically: higher graduation rates from high school, a tighter labor market, a higher minimum wage, and “virtual” marriages between single mothers and unattached men. In isolation, each has only modest effects. In our model, the only significant boost to income comes from employment, and in particular from assuming that all bottom-third household heads work full time:

Time to debate some more radical solutions 

It may be that the standard solutions to the problems of the bottom third, while helpful, are no longer sufficient. A debate about whether to make safety net programs such as Food Stamps and housing assistance conditional on work or training is underway. So are other solutions such as subsidized jobs (created by some states during the Great Recession as a natural complement to a work-conditioned safety net), more work sharing (used in Germany during the recession), or even a universal basic income (being considered by Swiss voters in June).

       

       

       

       

       

       

       

       

       

Introduction

It was 2025 when Facebook decided to post live feeds from public and private surveillance cameras, so they could be searched online. The decision hardly came as a surprise. Ever since Facebook passed the 500 million-member mark in 2010, it found increasing consumer demand for applications that allowed users to access surveillance cameras with publicly accessible IP addresses. (Initially, live feeds to cameras on Mexican beaches were especially popular.) But in the mid-2020s, popular demand for live surveillance camera feeds were joined by demands from the U.S. government that an open circuit television network would be invaluable in tracking potential terrorists. As a result, Facebook decided to link the public and private camera networks, post them live online, and store the video feeds without restrictions on distributed servers in the digital cloud.

Once the new open circuit system went live, anyone in the world could log onto the Internet, select a particular street view on Facebook maps and zoom in on a particular individual. Anyone could then back click on that individual to retrace her steps since she left the house in the morning or forward click on her to see where she was headed in the future. Using Facebook’s integrated face recognition app, users could click on a stranger walking down any street in the world, plug her image into the Facebook database to identify her by name, and then follow her movements from door-to-door. Since cameras were virtually ubiquitous in public and commercial spaces, the result was the possibility of ubiquitous identification and surveillance of all citizens virtually anywhere in the world—and by anyone. In an enthusiastic launch, Mark Zuckerberg dubbed the new 24/7 ubiquitous surveillance system “Open Planet.”

Open Planet is not a technological fantasy. Most of the architecture for implementing it already exists, and it would be a simple enough task for Facebook or Google, if the companies chose, to get the system up and running: face recognition is already plausible, storage is increasing exponentially; and the only limitation is the coverage and scope of the existing cameras, which are growing by the day. Indeed, at a legal Futures Conference at Stanford in 2007, Andrew McLaughlin, then the head of public policy at Google, said he expected Google to get requests to put linked surveillance networks live and online within the decade. How, he, asked the audience of scholars and technologists, should Google respond?

If “Open Planet” went live, would it violate the Constitution? The answer is that it might not under Supreme Court doctrine as it now exists—at least not if it were a purely-private affair, run by private companies alone and without government involvement. Both the First Amendment, which protects free speech, and the Fourth Amendment, which prohibits unreasonable searches and seizures, only restrict actions by the government. On the other hand, if the government directed Open Planet’s creation or used it to track citizens on government-owned, as well as private-sector, cameras, perhaps Facebook might be viewed as the equivalent of a state actor, and therefore restricted by the Constitution.

At the time of the framing of the Constitution, a far less intrusive invasion of privacy – namely, the warrantless search of private homes and desk drawers for seditious papers – was considered the paradigmatic case of an unreasonable and unconstitutional invasion of privacy. The fact that 24/7 ubiquitous surveillance may not violate the Constitution today suggests the challenge of translating the framers’ values into a world in which Google and Facebook now have far more power over the privacy and free speech of most citizens than any King, president, or Supreme Court justice. In this essay, I will examine four different areas where the era of Facebook and Google will challenge our existing ideas about constitutional protections for free speech and privacy: ubiquitous surveillance with GPS devices and online surveillance cameras; airport body scanners; embarrassing Facebook photos and the problem of digital forgetting; and controversial YouTube videos. In each area, I will suggest, preserving constitutional values requires a different balance of legal and technological solutions, combined with political mobilization that leads to changes in social norms.

Let’s start with Open Planet, and imagine sufficient government involvement to make the courts plausibly consider Facebook’s program the equivalent of state action. Imagine also that the Supreme Court in 2025 were unsettled by Open Planet and inclined to strike it down. A series of other doctrines might bar judicial intervention. The Court has come close to saying that we have no legitimate expectations of privacy in public places, at least when the surveillance technologies in question are in general public use by ordinary members of the public.[1]  As mobile camera technology becomes ubiquitous, the Court might hold that the government is entitled to have access to the same linked camera system that ordinary members of the public have become accustomed to browsing. Moreover, the Court has said that we have no expectation of privacy in data that we voluntarily surrender to third parties.[2] In cases where digital images are captured on cameras owned by third parties and stored in the digital cloud—that is, on distributed third party servers--we have less privacy than citizens took for granted at the time of the American founding. And although the founders expected a degree of anonymity in public, that expectation would be defeated by the possibility of 24/7 surveillance on Facebook.

The doctrinal seeds of a judicial response to Open Planet, however, do exist. A Supreme Court inclined to strike down ubiquitous surveillance might draw on recent cases involving decisions by the police to place a GPS tracking device on the car of a suspect without a warrant, tracking his movements 24/7. The Supreme Court has not yet decided whether prolonged surveillance, in the form of “dragnet-type law enforcement practices” violates the Constitution.[3] Three federal circuits have held that the use of a GPS tracking device to monitor someone’s movements in a car over a prolonged period is not a search because we have no expectations of privacy in our public movements.[4] But in a visionary opinion in 2010, Judge Douglas Ginsburg of the U.S. Court of Appeals disagreed. Prolonged surveillance is a search, he recognized, because no reasonable person expects that his movements will be continuously monitored from door to door; all of us have a reasonable expectation of privacy in the “whole” of our movements in public. [5] Ginsburg and his colleagues struck down the warrantless GPS surveillance of a suspect that lasted 24 hours a day for nearly a month on the grounds that prolonged, ubiquitous tracking of citizen’s movements in public is constitutionally unreasonable. “Unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil,” Ginsburg wrote. Moreover, “That whole reveals more – sometimes a great deal more – than does the sum of its parts.”[6] Like the “mosaic theory” invoked by the government in national security cases, Ginsburg concluded that “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.  These types of information can each reveal more about a person than does any individual trip viewed in isolation.”[7] Ginsburg understood that 24/7 ubiquitous surveillance differs from more limited tracking not just in degree but in kind – it looks more like virtual stalking than a legitimate investigation – and therefore is an unreasonable search of the person.

Because prolonged surveillance on “Open Planet” potentially reveals far more about each of us than 24/7 GPS tracking does, providing real time images of all our actions, rather than simply tracking the movements of our cars, it could also be struck down as an unreasonable search of our persons. And if the Supreme Court struck down Open Planet on Fourth Amendment grounds, it might be influenced by the state regulations of GPS surveillance that Ginsburg found persuasive, or by Congressional attempts to regulate Facebook or other forms of 24/7 surveillance, such as the Geolocational Privacy and Surveillance Act proposed by Sen. Ron Wyden (D-OR) that would require officers to get a warrant before electronically tracking cell phones or cars.[8]

The Supreme Court in 2025 might also conceivably choose to strike down Open Planet on more expansive grounds, relying not just on the Fourth Amendment, but on the right to autonomy recognized in cases like Casey v. Planned Parenthood and Lawrence v. Texas. The right to privacy cases, beginning with Griswold v. Connecticut and culminating in Roe v. Wade and Lawrence, are often viewed as cases about sexual autonomy, but in Casey and Lawrence, Justice Anthony Kennedy recognized a far more sweeping principle of personal autonomy that might well protect individuals from totalizing forms of ubiquitous surveillance. Imagine an opinion written in 2025 by Justice Kennedy, still ruling the Court and the country at the age of 89. “In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence,” Kennedy wrote in Lawrence. “Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[9] Kennedy’s vision of an “autonomy of self” that depends on preventing the state from becoming a “dominant presence” in public as well as private places might well be invoked to prevent the state from participating in a ubiquitous surveillance system that prevents citizens from defining themselves and expressing their individual identities. Just as citizens in the Soviet Union were inhibited from expressing and defining themselves by ubiquitous KGB surveillance, Kennedy might hold, the possibility of ubiquitous surveillance on “Open Planet” also violates the right to autonomy, even if the cameras in question are owned by the private sector, as well as the state, and a private corporation provides the platform for their monitoring.  Nevertheless, the fact that the system is administered by Facebook, rather than the Government, might be an obstacle to a constitutional ruling along these lines. And if Kennedy (or his successor) struck down “Open Planet” with a sweeping vision of personal autonomy that didn’t coincide with the actual values of a majority of citizens in 2025, the decision could be the Roe of virtual surveillance, provoking backlashes from those who don’t want the Supreme Court imposing its values on a divided nation.

Would the Supreme Court, in fact, strike down “Open Planet” in 2025? If the past is any guide, the answer may depend on whether the public, in 2025, views 24/7 ubiquitous surveillance as invasive and unreasonable, or whether citizens have become so used to ubiquitous surveillance on and off the web, in virtual space and real space, that the public demands “Open Planet” rather than protesting against it. I don’t mean to suggest that the Court actually reads the polls. But in the age of Google and Facebook, technologies that thoughtfully balance privacy with free expression and other values have tended to be adopted only when companies see their markets as demanding some kind of privacy protection, or when engaged constituencies have mobilized in protest against poorly designed architectures and demanded better ones, helping to create a social consensus that the invasive designs are unreasonable.

The paradigmatic case of the kind of political mobilization on behalf of constitutional values that I have in mind is presented by my second case: the choice between the naked machine and the blob machine in airport security screening. In 2002, officials at Orlando International airport first began testing the millimeter wave body scanners that are currently at the center of a national uproar. The designers of the scanners at Pacific Northwest Laboratories offered U.S. officials a choice: naked machines or blob machines? The same researchers had developed both technologies, and both were equally effective at identifying contraband. But, as their nicknames suggest, the former displays graphic images of the human body, while the latter scrambles the images into a non-humiliating blob.[10]

Since both versions of the scanners promise the same degree of security, any sane attempt to balance privacy and safety would seem to favor the blob machines over the naked machines. And that’s what European governments chose. Most European airport authorities have declined to adopt body scanners at all, because of persuasive evidence that they’re not effective at detecting low-density contraband such as the chemical powder PETN that the trouser bomber concealed in his underwear on Christmas day, 2009. But the handful of European airports that have adopted body scanners, such as Schiphol airport in Amsterdam, have opted for a version of the blob machine. This is in part due to the efforts of European privacy commissioners, such as Germany’s Peter Schaar, who have emphasized the importance of designing body scanners in ways that protect privacy.

The U.S. Department of Homeland Security made a very different choice. It deployed the naked body scanners without any opportunity for public comment—then appeared surprised by the backlash. Remarkably, however, the backlash was effective. After a nationwide protest inspired by the Patrick Henry of the anti-Naked Machines movement, a traveler who memorably exclaimed “Don’t Touch my Junk,” President Obama called on the TSA to go back to the drawing board. And a few months after authorizing the intrusive pat downs, in February 2011, the TSA announced that it would begin testing, on a pilot basis, versions of the very same blob machines that the agency had rejected nearly a decade earlier. According to the latest version, to be tested in Las Vegas and Washington, D.C, the TSA will install software filters on its body scanner machines that detects potential threat items and indicates their location on a generic, blob like outline of each passenger that will appear on a monitor attached to the machine. Passengers without suspicious items will be cleared as “OK,” those with suspicious items will be taken aside for additional screening. The remote rooms in which TSA agents view images of the naked body will be eliminated. According to news reports, TSA began testing the filtering software in the fall of 2010 – precisely when the protests against the naked machines went viral. If the filtering software is implemented across the country, converting naked machines into blob machines, the political victory for privacy will be striking.

Of course, it’s possible that courts might strike down the naked machines as unreasonable and unconstitutional, even without the political protests. In a 1983 opinion upholding searches by drug-sniffing dogs, Justice Sandra Day O’Connor recognized that a search is most likely to be considered constitutionally reasonable if it is very effective at discovering contraband without revealing innocent but embarrassing information.[11] The backscatter machines seem, under O'Connor's view, to be the antithesis of a reasonable search: They reveal a great deal of innocent but embarrassing information and are remarkably ineffective at revealing low-density contraband.

It’s true that the government gets great deference in airports and at the borders, where routine border searches don’t require heightened suspicion. But the Court has held that non-routine border searches, such as body cavity or strip searches, do require a degree of individual suspicion.  And although the Supreme Court hasn't evaluated airport screening technology, lower courts have emphasized, as the U.S. Court of Appeals for the 9th Circuit ruled in 2007, that "a particular airport security screening search is constitutionally reasonable provided that it 'is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives.'"[12]

It’s arguable that since the naked machines are neither effective nor minimally intrusive – that is, because they might be designed with blob machine like filters that promise just as much security while also protecting privacy – that courts might strike them down. As a practical matter, however, both lower courts and the Supreme Court seem far more likely to strike down strip searches that have inspired widespread public opposition – such as the strip search of a high school girl wrongly accused of carrying drugs, which the Supreme Court invalidated by a vote of 8-1,[13] then they are of searches that, despite the protests of a mobilized minority, the majority of the public appears to accept.

The tentative victory of the blob machines over the naked machines, if it materializes, provides a model for successful attempts to balance privacy and security: government can be pressured into striking a reasonable balance between privacy and security by a mobilized minority of the public when the privacy costs of a particular technology are dramatic, visible, widely distributed, and people experience the invasions personally as a kind of loss of control over the conditions of their own exposure.

But can we be mobilized to demand a similarly reasonable balance when the threats to privacy come not from the government but from private corporations and when those responsible for exposing too much personal information about us are none other than ourselves? When it comes to invasions of privacy by fellow citizens, rather than by the government, we are in the realm not of autonomy but of dignity and decency. (Autonomy preserves a sphere of immunity from government intrusion in our lives; dignity protects the norms of social respect that we accord to each other.) And since dignity is a socially constructed value, it’s unlikely to be preserved by judges--or by private corporations--in the face of the expressed preferences of citizens who are less concerned about dignity than exposure.

This is the subject of our third case, which involves a challenge that, in big and small ways, is confronting millions of people around the globe: how best to live our lives in a world where the Internet records everything and forgets nothing—where every online photo, status update, Twitter post and blog entry by and about us can be stored forever.[14] Consider the case of Stacy Snyder. Four years ago, Snyder, then a 25-year-old teacher in training at Conestoga Valley High School in Lancaster, Pa., posted a photo on her MySpace page that showed her at a party wearing a pirate hat and drinking from a plastic cup, with the caption “Drunken Pirate.” After discovering the page, her supervisor at the high school told her the photo was “unprofessional,” and the dean of Millersville University School of Education, where Snyder was enrolled, said she was promoting drinking in virtual view of her under-age students. As a result, days before Snyder’s scheduled graduation, the university denied her a teaching degree. Snyder sued, arguing that the university had violated her First Amendment rights by penalizing her for her (perfectly legal) after-hours behavior. But in 2008, a federal district judge rejected the claim, saying that because Snyder was a public employee whose photo didn’t relate to matters of public concern, her “Drunken Pirate” post was not protected speech.[15]

When historians of the future look back on the perils of the early digital age, Stacy Snyder may well be an icon. With Web sites like LOL Facebook Moments, which collects and shares embarrassing personal revelations from Facebook users, ill-advised photos and online chatter are coming back to haunt people months or years after the fact.

Technological advances, of course, have often presented new threats to privacy. In 1890, in perhaps the most famous article on privacy ever written, Samuel Warren and Louis Brandeis complained that because of new technology — like the Kodak camera and the tabloid press — “gossip is no longer the resource of the idle and of the vicious but has become a trade.”[16] But the mild society gossip of the Gilded Age pales before the volume of revelations contained in the photos, video and chatter on social-media sites and elsewhere across the Internet. Facebook, which surpassed MySpace in 2008 as the largest social-networking site, now has more than 500 million members, or 22 percent of all Internet users, who spend more than 500 billion minutes a month on the site. Facebook users share more than 25 billion pieces of content each month (including news stories, blog posts and photos), and the average user creates 70 pieces of content a month.

Today, as in Brandeis’s day, the value threatened by gossip on the Internet – whether posted by us our by others – is dignity. (Brandeis called it an offense against honor.) But American law has never been good at regulating offenses against dignity – especially when regulations would clash with other values, such as protections for free speech. And indeed, the most ambitious proposals in Europe to create new legal rights to escape your past on the Internet are very hard to reconcile with the American free speech tradition.

The cautionary tale here is Argentina, which has dramatically expanded the liability of search engines like Google and Yahoo for offensive photographs that harm someone’s reputation. Recently, an Argentinean judge held Google and Yahoo liable for causing “moral harm” and violating the privacy of Virginia Da Cunha, a pop star, by indexing pictures of her that were linked to erotic content. The ruling against Google and Yahoo was overturned on appeal in August, but there are at least 130 similar cases pending in Argentina to force search engines to remove or block offensive content. In the U.S., search engines are protected by the Communications Decency Act, which immunizes Internet service providers from hosting content posted by third parties. But as liability against search engines expands abroad, it will seriously curtain free speech:  Yahoo says that the only way to comply with injunctions about is to block all sites that refer to a particular plaintiff.[17]

In Europe, recent proposals to create a legally enforceable right to escape your past have come from the French. The French data commissioner, Alex Turc, who has proposed a right to oblivion – namely a right to escape your past on the Internet. The details are fuzzy, but it appears that the proposal would rely on an international body – say a commission of forgetfulness – to evaluate particular take down requests and order Google and Facebook to remove content that, in the view of commissioners, violated an individuals’ dignitary rights.

From an American perspective, the very intrusiveness of this proposal is enough to make it implausible: how could we rely on bureaucrats to protect our dignity in cases where we have failed to protect it on our own? Europeans, who have less of a free speech tradition and far more of a tradition of allowing people to remove photographs taken and posted against their will, will be more sympathetic to the proposal. But from the perspective of most American courts and companies, giving people the right selectively to delete their pasts from public discourse would pose unacceptably great threats to free speech.

A far more promising solution to the problem of forgetting on the Internet is technological. And there are already small-scale privacy apps that offer disappearing data. An app called TigerText allows text-message senders to set a time limit from one minute to 30 days, after which the text disappears from the company’s servers, on which it is stored, and therefore, from the senders’ and recipients’ phones. (The founder of TigerText, Jeffrey Evans, has said he chose the name before the scandal involving Tiger Woods’s supposed texts to a mistress.)[18]

Expiration dates could be implemented more broadly in various ways. Researchers at the University of Washington, for example, are developing a technology called Vanish that makes electronic data “self-destruct” after a specified period of time. Instead of relying on Google, Facebook or Hotmail to delete the data that is stored “in the cloud” — in other words, on their distributed servers — Vanish encrypts the data and then “shatters” the encryption key. To read the data, your computer has to put the pieces of the key back together, but they “erode” or “rust” as time passes, and after a certain point the document can no longer be read. The technology doesn’t promise perfect control — you can’t stop someone from copying your photos or Facebook chats during the period in which they are not encrypted. But as Vanish improves, it could bring us much closer to a world where our data don’t linger forever.

Facebook, if it wanted to, could implement expiration dates on its own platform, making our data disappear after, say, three days or three months unless a user specified that he wanted it to linger forever. It might be a more welcome option for Facebook to encourage the development of Vanish-style apps that would allow individual users who are concerned about privacy to make their own data disappear without imposing the default on all Facebook users.

So far, however, Zuckerberg, Facebook’s C.E.O., has been moving in the opposite direction — toward transparency, rather than privacy. In defending Facebook’s recent decision to make the default for profile information about friends and relationship status public, Zuckerberg told the founder of the publication TechCrunch that Facebook had an obligation to reflect “current social norms” that favored exposure over privacy. “People have really gotten comfortable not only sharing more information and different kinds but more openly and with more people, and that social norm is just something that has evolved over time,” [19] he said.

It’s true that a German company, X-Pire, recently announced the launch of a Facebook app that will allow users automatically to erase designated photos. Using electronic keys that expire after short periods of time, and obtained by solving a Captcha, or graphic that requires users to type in a fixed number combinations, the application ensures that once the time stamp on the photo has expired, the key disappears.[20] X-Pire is a model for a sensible, blob-machine-like solution to the problem of digital forgetting. But unless Facebook builds X-Pire-like apps into its platform – an unlikely outcome given its commercial interests – a majority of Facebook users are unlikely to seek out disappearing data options until it’s too late. X-Pire, therefore, may remain for the foreseeable future a technological solution to a grave privacy problem—but a solution that doesn’t have an obvious market.

The courts, in my view, are better equipped to regulate offenses against autonomy, such as 24/7 surveillance on Facebook, than offenses against dignity, such as drunken Facebook pictures that never go away. But that regulation in both cases will likely turn on evolving social norms whose contours in twenty years are hard to predict.

Finally, let’s consider one last example of the challenge of preserving constitutional values in the age of Facebook and Google, an example that concerns not privacy but free speech.[21]

At the moment, the person who arguably has more power than any other to determine who may speak and who may be heard around the globe isn’t a king, president or Supreme Court justice. She is Nicole Wong, the deputy general counsel of Google, and her colleagues call her “The Decider.” It is Wong who decides what controversial user-generated content goes down or stays up on YouTube and other applications owned by Google, including Blogger, the blog site; Picasa, the photo-sharing site; and Orkut, the social networking site. Wong and her colleagues also oversee Google’s search engine: they decide what controversial material does and doesn’t appear on the local search engines that Google maintains in many countries in the world, as well as on Google.com. As a result, Wong and her colleagues arguably have more influence over the contours of online expression than anyone else on the planet.

At the moment, Wong seems to be exercising that responsibility with sensitivity to the values of free speech. Google and Yahoo can be held liable outside the United States for indexing or directing users to content after having been notified that it was illegal in a foreign country. In the United States, by contrast, Internet service providers are protected from most lawsuits involving having hosted or linked to illegal user-generated content. As a consequence of these differing standards, Google has considerably less flexibility overseas than it does in the United States about content on its sites, and its “information must be free” ethos is being tested abroad.

For example, on the German and French default Google search engines, Google.de and Google.fr, you can’t find Holocaust-denial sites that can be found on Google.com, because Holocaust denial is illegal in Germany and France. Broadly, Google has decided to comply with governmental requests to take down links on its national search engines to material that clearly violates national laws. But not every overseas case presents a clear violation of national law. In 2006, for example, protesters at a Google office in India demanded the removal of content on Orkut, the social networking site, that criticized Shiv Sena, a hard-line Hindu political party popular in Mumbai. Wong eventually decided to take down an Orkut group dedicated to attacking Shivaji, revered as a deity by the Shiv Sena Party, because it violated Orkut terms of service by criticizing a religion, but she decided not to take down another group because it merely criticized a political party. “If stuff is clearly illegal, we take that down, but if it’s on the edge, you might push a country a little bit,” Wong told me. “Free-speech law is always built on the edge, and in each country, the question is: Can you define what the edge is?”

Over the past couple of years, Google and its various applications have been blocked, to different degrees, by 24 countries. Blogger is blocked in Pakistan, for example, and Orkut in Saudi Arabia. Meanwhile, governments are increasingly pressuring telecom companies like Comcast and Verizon to block controversial speech at the network level. Europe and the U.S. recently agreed to require Internet service providers to identify and block child pornography, and in Europe there are growing demands for network-wide blocking of terrorist-incitement videos. As a result, Wong and her colleagues worry that Google’s ability to make case-by-case decisions about what links and videos are accessible through Google’s sites may be slowly circumvented, as countries are requiring the companies that give us access to the Internet to build top-down censorship into the network pipes.

It is not only foreign countries that are eager to restrict speech on Google and YouTube. In May, 2006, Joseph Lieberman who has become the A. Mitchell Palmer of the digital age, had his staff contacted Google and demanded that the company remove from YouTube dozens of what he described as jihadist videos. After viewing the videos one by one, Wong and her colleagues removed some of the videos but refused to remove those that they decided didn’t violate YouTube guidelines. Lieberman wasn’t satisfied. In an angry follow-up letter to Eric Schmidt, the C.E.O. of Google, Lieberman demanded that all content he characterized as being “produced by Islamist terrorist organizations” be immediately removed from YouTube as a matter of corporate judgment — even videos that didn’t feature hate speech or violent content or violate U.S. law. Wong and her colleagues responded by saying, “YouTube encourages free speech and defends everyone’s right to express unpopular points of view.” Recently, Google and YouTube announced new guidelines prohibiting videos “intended to incite violence.”

That category scrupulously tracks the Supreme Court’s rigorous First Amendment doctrine, which says that speech can be banned only when it poses an imminent threat of producing serious lawless action. Unfortunately, Wong and her colleagues recently retreated from that bright line under further pressure from Lieberman. In November, 2010, YouTube added a new category that viewers can click to flag videos for removal: “promotes terrorism.” There are 24 hours of video uploaded on YouTube every minute, and a series of categories viewers can use to request removal, including “violent or repulsive content” or inappropriate sexual content. Although hailed by Senator Lieberman, the new “promotes terrorism category” is potentially troubling because it goes beyond the narrow test of incitement to violence that YouTube had previously used to flag terrorism related videos for removal. YouTube’s capitulation to Lieberman shows that a user generated system for enforcing community standards will never protect speech as scrupulously as unelected judges enforcing strict rules about when speech can be viewed as a form of dangerous conduct.

Google remains a better guardian for free speech than internet companies like Facebook and Twitter, which have refused to join the Global Network Initiative, an industry-wide coalition committed to upholding free speech and privacy. But the recent capitulation of YouTube shows that Google’s “trust us” model may not be a stable way of protecting free speech in the twenty-first century, even though the alternatives to trusting Google – such as authorizing national regulatory bodies around the globe to request the removal of controversial videos – might protect less speech than Google’s “Decider” model currently does.

I’d like to conclude by stressing the complexity of protecting constitutional values like privacy and free speech in the age of Google and Facebook, which are not formally constrained by the Constitution. In each of my examples – 24/7 Facebook surveillance, blob machines, escaping your Facebook past, and promoting free speech on YouTube and Google -- it’s possible to imagine a rule or technology that would protect free speech and privacy, while also preserving security—a blob-machine like solution. But in some areas, those blob-machine-like solutions are more likely, in practice, to be adopted then others. Engaged minorities may demand blob machines when they personally experience their own privacy being violated; but they may be less likely to rise up against the slow expansion of surveillance cameras, which transform expectations of privacy in public. Judges in the American system may be more likely to resist ubiquitous surveillance in the name of Roe v. Wade-style autonomy than they are to create a legal right to allow people to edit their Internet pasts, which relies on ideas of dignity that in turn require a social consensus that in America, at least, does not exist. As for free speech, it is being anxiously guarded for the moment by Google, but the tremendous pressures, from consumers and government are already making it hard to hold the line at removing only speech that threatens imminent lawless action.

In translating constitutional values in light of new technologies, it’s always useful to ask: What would Brandeis do? Brandeis would never have tolerated unpragmatic abstractions, which have the effect of giving citizens less privacy in the age of cloud computing than they had during the founding era. In translating the Constitution into the challenges of our time, Brandeis would have considered it a duty actively to engage in the project of constitutional translation in order to preserve the Framers’ values in a startlingly different technological world. But the task of translating constitutional values can’t be left to judges alone: it also falls to regulators, legislators, technologists, and, ultimately, to politically engaged citizens. As Brandeis put it, “If we would guide by the light of reason, we must let our minds be bold.”

Downloads

• Download the Full Paper