The United States exports digital goods worth hundreds of billions of dollars across the Atlantic each year.  And both Silicon Valley and Hollywood do big business with Europe every year.  Differences in approaches to privacy have always made this relationship unsteady but the Snowden disclosures greatly complicated the prospects of a Transatlantic Trade and Investment Partnership.  In this paper Cameron Kerry examines that politics of transatlantic trade and the critical role that U.S. privacy policy plays in these conversations.

Kerry relies on his experience as the U.S.’s chief international negotiator for privacy and data regulation to provide an overview of key proposals related to privacy and data in Europe.  He addresses the possible development of a European Internet and the current regulatory regime known as Safe Harbor. Kerry argues that America and Europe have different approaches to protecting privacy both which have strengths and weaknesses.

To promote transatlantic trade the United states should:

• Not be defensive about its protection of privacy
• Provide clear information to the worldwide community about American law enforcement surveillance
• Strengthen its own privacy protection
• Focus on the importance of trade to the American and European economies

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• Download the paper

Sen. Rand Paul has just completed his nearly thirteen hour filibuster against John Brennan's nomination to head the CIA. Breaking off his filibuster (because, he inferred, he had to pee), Rand was heralded for bringing back the "talking filibuster." There was much written (and tweeted) about his filibuster, which began with Paul’s dramatic:

"I will speak until I can no longer speak…I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court."

I thought I would add a few late-night thoughts in honor of this day spent with C-Span 2 humming in my ear.

First, I think Jon Bernstein’s reaction to the filibuster was right on the mark.  There’s been a lot of enthusiasm for the talking filibuster today, from Ezra Klein's "If more filibusters went like this, there’d be no reason to demand reform," to Josh Marshall’s, "This is a good example of why we should have the talking filibuster and just the talking filibuster." But Bernstein raises a critical point: "Today’s live filibuster shows again just how easy it is to hold the Senate floor for an extended period." The motivation of recent reformers has been to reduce filibustering by raising the costs of obstruction for the minority. In theory, making the filibuster more burdensome to the minority—while putting their views under the spotlight—should make filibusters more costly and more rare. (Paul did note in coming off the Senate floor tonight that his feet hurt…) But as Bernstein points out, Paul believes in his cause, and it plays well with his constituencies. On the physical front, the tag-team of GOP senators rallying to Paul's cause also lessened the burden on Paul (as would have a pair of filibuster-proof shoes). That said, today's filibuster was a little unusual. The majority seemed unfazed by giving up the day to Paul’s filibuster, perhaps because the rest of Washington was shutdown for a pseudo-snow storm. Moreover, the Brennan nomination had bipartisan support, with Reid believing there were 60 senators ready to invoke cloture.  In short, today's episode might not be a great test case for observing the potential consequences of reform.

Second, keep in mind that this was a double-filibuster day. The nomination of Caitlin Halligan for the DC Court of Appeals was blocked, failing for the second time to secure cloture. With 41 Republican senators voting to block an up or down confirmation vote on Halligan, an often-noted alternative reform (which would require 41 senators to block cloture instead of 60 senators to invoke it) would have made no difference to the outcome. And what if the minority had been required to launch a talking filibuster to block Halligan’s nomination? Reid might have been willing to forfeit the floor time to Paul today.  But Reid would unlikely have wanted to give up another day to Halligan’s opponents. As Steve Smith has argued, the burden of talking filibusters also falls on the majority, which typically wants to move on to other business. "Negotiating around the filibuster," Smith has argued, "would still be common."  On a day with two successful minority filibusters (at least in consuming floor time and deterring the majority from its agenda), we can see why the majority might be reticent to make senators talk.

Third, let's not lose sight of the target of Rand's filibuster: The head of the CIA.  Although the chief spook is not technically in the president’s cabinet, the position certainly falls within the ranks of nominations that have typically been protected from filibusters.  Granted, that norm was trampled with the Hagel filibuster for Secretary of Defense. But rather than seeing the potential upside of today's talking filibuster, I can't help but see the downside: In an age of intense policy and political differences between the parties, no corner of Senate business is immune to filibusters.

All that said, what's not to like about a mini demonstration of a real live filibuster?!  Perhaps Paul's late day Snickers break was cheating.  But it was a good C-Span type of day overall, for filibuster newbies to Franklin Burdette devotees. Even Dick Durbin well after midnight seemed to be enjoying the fray. Perhaps there’s a silver lining for talking filibusters after all.

Editor's Note: The current U.S. presidential race demonstrates the deep political divisions that exist in our country. But what does it mean to be "liberal" or "conservative," "Republican" or "Democratic"? According to Shadi Hamid, certain values transcend political chasms. This post originally appeared on PBS NewsHour.

What does it mean to say that the Republican Party is on the “right”? The GOP, long defined (at least in theory) by its faith in an unbridled free market, the politics of personal responsibility, and a sort of Christian traditionalism, is no longer easily plotted on the traditional left-right spectrum of American politics. Under the stewardship of presidential nominee Donald Trump, the Republican Party appears to be morphing into a European-style ethnonationalist party. With Trump’s open disrespect for minority rights and the Bill of Rights, the GOP can no longer be considered classically “liberal” (not to be confused with capital-L American Liberalism). This is a new kind of party, an explicitly illiberal party.

These developments, of course, further constrain Republicans’ appeal to minority voters (I haven’t yet met an American Muslim willing to admit they’re voting for Trump, but they apparently exist). This makes it all the more important to distinguish between conservative values and those of this latest iteration of the Republican Party.

There are some aspects of Burkean conservative thought – including aspects of what might be called civic communitarianism – that could plausibly strike a chord in the current cultural landscape across “left” and “right,” categories which, in any case, are no longer as clearly distinguishable as they once were. (Take, for example, British Labour leader Jeremy Corbyn’s Euroskepticism and that of his opponents on the right, or the populist anti-elitism and trade protectionism that are now the province of both Republicans and Democrats).

Everyone seems angry or distrustful of government institutions, which, even when they provide much needed redistributive fiscal stimulus and services, are still blamed for being incompetent, inefficient, or otherwise encouraging a kind of undignified dependency. After the Brexit debacle, it seemed odd that some of the most Europhobic parts of Britain were the very ones that benefited most from EU subsidies. But this assumes that people are fundamentally motivated by material considerations and that they vote – or should vote – according to their economic interests.

If there’s one thing that the rise of Trump and Brexit – and the apparent scrambling of left-right divides – demonstrates, it’s that other things may matter more, and that it’s not a matter of people being too stupid to realize what’s good for them. As Will Davies put it in one of the more astute post-Brexit essays, what many Brexiteers craved was “the dignity of being self-sufficient, not necessarily in a neoliberal sense, but certainly in a communal, familial and fraternal sense.”

The communitarian instinct – the recognition that meaning ultimately comes from local communities rather than happiness-maximizing individuals or bloated nanny-states – transcends the Republican-Democratic or the Labour-Conservative chasm. In other words, an avowedly redistributive state is fine, at least from the standpoint of the left, but that shouldn’t mean neglecting the importance of local control and autonomy, and finding ways, perhaps through federal incentives, to encourage things like “local investment trusts.”

Setting up local investment trusts, expanding the child tax credit, or introducing a progressive consumption tax aren’t exactly a call-to-arms, and various traditionalist and communitarian-minded philosophers have, as might be expected from philosophers, tended to stay at the level of abstraction (authors armed with more policy proposals are more likely to be young conservative reformers like Ross Douthat, Reihan Salam, and Yuval Levin). Douthat and Salam want to use wide-ranging tax reform to alter incentives in the hope of strengthening families and communities. This is a worthy goal, but realizing such policies requires leadership on the federal level from the very legislators who we should presumably become less dependent on.

This is the reformer’s dilemma, regardless of whether you’re on the left or right. If your objective is to weaken a centralized, overbearing state and encourage mediating or “middle” institutions, then you first need recourse to that same overbearing state, otherwise the proposed changes are unlikely to have any significant impact on the aggregate, national level.

The fact that few people seem interested in talking about any of this in our national debate (we instead seem endlessly intrigued by Melania Trump’s copy-and-paste speechwriting) suggests that we’re likely to be stuck for some time to come. Incidentally, however, the Hillary Clinton campaign slogan of “Stronger Together” has an interesting communitarian tinge to it. I doubt that was the intent, and it’s only in writing this column that I even took a minute to think about what the slogan might actually mean. I, as it happens, have been much more interested in talking about – and worrying about – an unusually fascinating and frightening man named Donald Trump.

A recent blog suggested that CMS’ efforts to standardize assessment data was based on a goal of “….creating a functional measurement tool that could be used throughout the industry.” In fact, CMS has been working since 2005 to meet the Congressional directive to standardize assessment information at hospital discharge, and post-acute care (PAC) admission and discharge for payment and quality reporting purposes (Deficit Reduction Act of 2005). The CARE tool was developed as part of the national Post-Acute Care Payment Reform Demonstration (PAC PRD). The conceptual domains and items were selected with the input of the wide range of stakeholder communities working with PAC populations. Clinicians from acute hospitals and each of the four PAC settings, including long term care hospitals (LTCHs), inpatient rehabilitation facilities (IRFs), skilled nursing facilities (SNFs), and home health agencies (HHAs) identified items to test in four areas: medical status, functional status, cognitive status, and some social support factors. Input was given by physicians, nurses, physical therapists, occupational therapists, speech and language pathologists, social workers and case managers working in each of the different levels of care. Initial item selection was based on a review of existing assessment items, including those in the three Federally-mandated instruments, (the IRF-PAI, MDS 2.0, and OASIS-B which were in effect at this time) and the input of each of the scientific communities working in these areas.

Developers of proprietary systems such as the UDS-MR©, Inter-RAI ©, and AM-PAC ©, as well as public domain items tested in clinical trials such as the PROMIS items, were all reviewed as part of this process. The selected items needed to be in the public domain so the measures could be modified as science advanced practice.

Over 200 providers participated nationwide to submit over 53,000 CARE assessments over the course of the PAC PRD. Participating clinicians also provided feedback during training and exit interviews. In general, positive feedback was provided on most items. Feedback showed that almost all items were commonly collected on existing instruments in hospitals and PAC providers, although some of the information may have been informally noted in charts rather than provided in the structured form of the CARE items.

The items were tested for reliability so they could be applied consistently across populations and settings. Most of the items were previously tested and found reliable in at least one of the five levels of care. Two types of reliability tests were conducted on the final CARE tool item set used in the PAC PRD. The results showed that most items when applied to the other four settings were at least as reliable as the existing Federal assessment items (Kappa scores of 0.6 or better) ensuring their reliable use in future quality measures or payment models would reach consistent results. Complete reports on item reliability and PAC PRD results can be found here.

Data standardization is critical to allow providers to exchange information as they follow the patient. The Deficit Reduction Act of 2005 directed CMS to use standardized assessment items at acute hospital discharge and PAC admission and discharge to allow for empirical comparisons of key questions arising out of changing incentives in the Medicare payment policies. The standardized CARE items are consensus-based versions of the items already collected by clinicians. These and additional items being incorporated into CMS’ assessment item library represent the “best in class.” The team developing the CARE item set represented the leading experts in each of the areas – Dr. Margaret Stineman of the University of Pennsylvania, developer of the function-related groups associated with the proprietary FIM©, Dr. Deborah Saliba, UCLA, lead developer of the MDS 3.0, and Dr. Chris Murtaugh of the Visiting Nurse Service of New York. Team members included Drs. Anne Deutsch and Trudy Mallinson of the Rehabilitation Institute of Chicago. Input was also given by Dr. David Hittle, of the University of Colorado who has worked closely with the OASIS tool, Dr. Samuel Markello, formerly of the UDS-MR©, and Dr. Patrick Murray of Case Western University.

The blog suggested that, “the early reviews of the CARE tool have been poor.” While this clearly is not true, it is worth pointing out that the author owns one of the key proprietary assessment instruments. The CARE items have been evaluated for reliability and they meet the national standards; they allow providers and others the opportunity to download the e-specification of the items without charge and to have the clinicians trained for free under CMS’ regular assessment training initiatives. CMS is currently developing quality measures using the “best in class” assessment items which all meet scientific standards. The quality measure development process already requires CMS to submit measures for endorsement by the National Quality Forum. The “loophole” identified by the UDS-MR© author is non-existent. The Measures Application Partnership is part of the existing NQF process included in the IMPACT legislation. Further, use of uniform data elements across settings, such as those used in the currently collected pressure ulcer measure, allows for exchangeability and improves communication across the system, finally creating a “data follows the person” system.