Author Archive
Seasteading and Other Technologies for Liberty
I’ve been following Patri Friedman’s work on seasteading for a number of years, so I was excited to see him contribute the lead essay in this month’s Cato Unbound. I think he makes some good points about the difficulty of achieving a free society through ordinary electoral politics. As he points out, libertarians are a minority of the electorate and the political game is stacked against politicians who aren’t willing to use their power to reward special interests. So smart libertarians should be looking at options outside of campaigns and elections to make the world a freer place.
But I think it’s a huge and unwarranted leap to go from this observation about the limits of electoral politics to claim that “the advocacy approach which many libertarian individuals, groups, and think tanks follow (including me sometimes, sadly) is an utter waste of time” and that “academic research has enlarged our understanding but they have gotten us no closer to an actual libertarian state.” It’s not difficult to find examples of academic research that changed the world. One of the most important trends toward liberty in the United States during the last century, the deregulation of transportation and communication markets in the 1970s, came about because a small group of academics persuaded Washington policymakers that deregulation would benefit consumers (and, in the process, their own political prospects). It surely mattered that Margaret Thatcher was a devotee of Friedrich Hayek. And if Friedman will forgive me for personalizing the debate a little bit, he must be familiar with the role his own grandfather had in ending the draft, achieving (relatively) stable money, and inspiring the modern school choice movement.
Now, Friedman says he’s interested in living in an “actual free society.” He probably regards the above examples as merely “small incremental gains in freedom.” But if that’s his critique, he bears the burden of showing that his preferred approach, seasteading, will itself achieve an “actual free society” rather then mere “incremental gains.” I’m not so sure.
Friedman makes much of the distinction between “technology” on the one hand and “advocacy” on the other. He thinks technological approaches are better because they provide superior leverage: a group as small as a few hundred people may be able to permanently lower the barrier to entry to statehood and fundamentally transform the nation-state game.
It’s an appealing vision, but I don’t think the distinction between technology and advocacy is so stark. As my colleague Will Wilkinson has pointed out, ideology is a kind of infrastructure. The tools of persuasion — magazine columns and television specials, for example — are means of improving this infrastructure by spreading new and better ideas. Modern communications technologies offer a kind of leverage not so dissimilar to the leverage Friedman hopes to achieve through seasteading. A small group of talented people can permanently change public attitudes, thereby shifting the Overton Window and changing the constraints politicians face.
Filed under: Government and Politics; Political Philosophy
Work, Social Production, and Inequality
Matt Yglesias links to an interesting discussion about the growth of activities that raise our standard of living without being captured in economic statistics. Wikipedia is a great example of this: it’s tremendously valuable to hundreds of millions of Internet users, but because it’s given away for free that value is not reflected in our economic statistics.
I think this general insight is right, but I don’t agree with John Quiggin’s conclusions about the social implications. In particular, Quiggin writes:
It seems unlikely that large inequalities in income are beneficial to anyone except the recipients of high incomes.
If improvements in welfare are increasingly independent of the market, it would make sense to shift resources out of market production, for example by reducing working hours.
The first point ignores the fact that rich people are a crucial part of many public-spirited enterprises. Jimmy Wales was able to finance the initial development of Wikipedia (then called Nupedia) because he had previously earned profits building commercial websites. The Ubuntu project, creators of an extremely popular Linux-based operating system, is supported to the tune of millions of dollars a year by successful entrepreneur Mark Shuttleworth. Brewster Kahle used the profits from his successful Internet businesses to build the Internet Archive, a crucial repository of public domain works. John Gilmore, who made his fortune as one of Sun’s first employees, has used his wealth to promote a variety of free software projects, including GNU radio and Gnash. I could provide plenty of other examples.
The important thing to recognize is that these projects could only exist because of the combination of their founders’ expertise and their money. Without cash, these folks would have been unable to provide the support necessary to get these projects off the ground. But even more important, these projects also wouldn’t have succeeded without their deep understanding of their fields. Only someone with years of experience in the software industry would have the judgment and the relationships necessary to make a project like Ubuntu successful.
Holder Takes a Small Step toward State Secrets Reform
Brian Beutler, guest-blogging for Matt Yglesias at Think Progress this week, takes a look at the steps the new attorney general, Eric Holder, is taking on the state secrets front. The Supreme Court case that established the modern state secrets privilege involved a lawsuit against the Air Force by three widows whose husbands had died in an aviation accident. The government convinced the Supreme Court that revealing information about the crash to the plaintiffs would endanger national security. But Beutler points out that there was just one problem:
The government lied. Contrary to its claims, the bomber wasn’t on a secret mission, and there were no top secret technologies aboard. Nothing in the incident report, which was declassified several years ago, legitimized the government’s decision to withhold it. What the report did contain, however, was evidence that the plane had been rather poorly maintained–a fact that might have been embarrassing for the Air Force, and vindicating for the dead mens’ wives, but that hardly amounted to a legitimate claim of state secret.
Unfortunately, the Supreme Court’s ruling is still controlling precedent, and the Bush administration used the state secrets privilege for maximum legal advantage, routinely asserting it in cases related to national security. Attorney General Holder has promised to review these assertions and withdraw those that are not “legally appropriate” circumstances.
This is good as far as it goes, but I agree with Beutler that it doesn’t go far enough. It’s nice to have responsible leaders in the executive branch who don’t abuse their powers, but it’s far more important to put laws in place that will prevent irresponsible leaders from abusing those powers in the future. In the case of the state secrets privilege, that means legislation narrowing the privilege to cases where there’s a genuine danger to national security and giving judges the power to review the relevant secrets in private to verify that it’s being invoked legitimately. Maybe that won’t matter while Eric Holder is in office. But even if Holder doesn’t abuse the state secrets privilege, it’s a safe bet that some future attorney general will. Reforming the privilege now, while memories of Bush administration abuses are fresh, is urgently needed.
The poster child for state secrets reform should be the ongoing Al Haramain case. An Islamic charity accused of funneling money to terrorist organizations was inadvertently handed a document that contained evidence that the government had spied on the charity without proper legal authority. When Al Haramain sued the government for this apparent violation of the law, the government made the astonishing argument that the document’s very existence was a state secret, that Al Haramain must return its copies of the document, and that therefore Al Haramain had no standing to sue the government because it had no evidence that it was the target of illegal surveillance. While we don’t know exactly what was in the document, it appears that rather than containing genuine state secrets, it simply contains politically-embarrassing evidence that the government has been conducting an illegal domestic surveillance program. The law should be changed to make it clear that the government can’t use the state secrets doctrine to get politically embarrassing evidence thrown out of court. And the law should explicitly give judges the power to review secret evidence in for themselves (in private and with appropriate security precautions) and judge for themselves whether the evidence merits state secret protection.
NSA Spying on Journalists: We Need a New Church Committee
Last week Keith Olbermann conducted a pair of interviews that gives a troubling look at the NSA’s domestic wiretapping operations. First, Olbermann talked with Russell Tice, a former NSA analyst who tells Olbermann that the NSA had access to all of the American’s peoples’ electronic communications, including those of journalists. Second, Olbermann talked to a New York Times reporter who is currently being pressured by federal prosecutors to divulge his sources for his 2006 book State of War, which focused on the CIA’s recent intelligence-gathering activities. The federal government hauled various former government officials before a grand jury and confronted them with phone records showing conversations between the government officials and Risen. Olbermann suggests that Risen’s phone records might have been obtained by the NSA using the dragnet surveillance program Tice has described.
It’s important to acknowledge that we don’t know if Risen was a target of the NSA program. Federal prosecutors do have legal powers to obtain the phone records of suspects without the knowledge of those suspects. It’s quite possible that the feds got Risen’s records using a valid subpoena under judicial supervision. However, the fact that we don’t know the full story is itself a serious problem. If Tice has described the program accurately and Risen’s phone records were obtained as part of such a surveillance program, that would be a pretty major scandal. Remember that even last year’s extremely permissive FISA Amendments Act didn’t legalize warrantless eavesdropping on purely domestic communications.
The problem is that we don’t know. And unfortunately, this is an area where our system of checks and balances have broken down. Congress has shown little appetite for performing one of its most important functions: investigating the activities of the executive branch to verify that the law is being followed.
Congress wasn’t always so timid. Thirty-five years ago, after another lawless president left office, we had not just one but three investigations of the prior administration: one in the House, one in the Senate, and one in the executive branch. The most successful of the three was the Senate committee that came to be known as the Church Committee. It produced a massive report documenting a ton of illegal activities by the executive branch over the preceding half-century. Gene Healy and I discussed a few of their findings here, and Julian Sanchez has a more thorough summary of the findings here.
In the forthcoming edition of the Cato Handbook on Policy, I argue that Congress should launch a broad investigation of executive branch surveillance abuses modeled on the Church Committee. Only by uncovering the full extent of domestic surveillance activities in the past can we craft sensible safeguards to make sure that abuses cannot happen again. I think there are three crucial factors in making a new Church Committee a success. First, it needs to be bipartisan. That is, it can’t focus merely on the misdeeds of the Bush administration. I recommend starting where the Church Committee left off and including the activities of the NSA, CIA, and FBI under presidents Carter, Reagan, Bush 41, Clinton, and Bush 43. If done right, this would be more than a fig leaf. Bill Clinton was hardly a doctrinaire civil libertarian, and so investigation might uncover real abuses that occurred under Clinton’s watch.
Second, it’s important that as much of the results as possible be made public. The lasting impact of the Church Committee was largely due to the sheer quantity of illegal activities it uncovered. If the Church Committee had only released information about the most egregious violations of the law, advocates of executive power might have been able to spin them as the work of a few bad apples. But because the Church Committee documented a pattern of law breaking involving dozens of people over the course of decades, under Democratic and Republican presidents alike, it became clear that there were systematic problems requiring systematic reforms. The passage of the original FISA Act was one of the most important results of the Church Committee report.
Of course, partisans for the recently-departed Bush administration will paint any effort by Congress to expose these secret programs as a partisan witchhunt that will aid the enemy. And obviously, Congress should be careful not to reveal details that could derail ongoing terrorist investigations or put undercover agents at risk, and the like. But there’s plenty of work Congress could do that is plainly neither a partisan witchhunt nor a danger to national security. The information the Electronic Frontier Foundation has uncovered regarding cooperation between telecom companies and the government would be a good place to start. Maybe Congress will find nothing improper happened there, but it’s important for the public to know what did happen so we can decide for ourselves.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Patents and Property: The Evidence
I’ve been really impressed with the job that Regulation, Cato’s quarterly journal of regulatory policy, has been doing covering patent policy of late. A year ago, I highlighted a fantastic exchange between legendary libertarian legal scholar (and Cato adjunct scholar) Richard Epstein and Berkeley law professor Peter Menell over the legal and philosophical status of the patent system. Epstein, drawing a close parallel between traditional property rights and patent rights, argued that courts should give patent holders the same kind of strong enforcement powers—including the power to obtain injunctions against infringers—that are available to the holders of traditional property rights. Menell, for his part, emphasized the differences between patents and traditional property rights, and argued that in light of the patent system’s various deficiencies, it’s a good idea to give trial judges wide discretion about whether to award injunctions or monetary damages in infringement cases.
In the latest issue of Regulation, two of my favorite patent scholars, James Bessen and Michael J. Meurer, contribute something that’s all too rare in patent debates: empirical evidence. They argue that at root, Epstein and Menell’s dispute isn’t so much a philosophical disagreement as an empirical one: do patents, in fact, operate in the same beneficial fashion as traditional property rights? That is, do they enhance legal certainty and increase incentives for innovation, or do they confuse and discourage potential innovators? This is a question that can’t be settled in the abstract; it must be answered by looking at the performance of real patent systems and seeing what effects they have in real industries.
Bessen and Meurer’s answer to the question “do patents promote innovation?” is “it depends.” In particular, there appears to be wide variation in the efficacy of the patent system across nations, industries, and time periods. Historically, the patent system appears to have worked somewhat better in the United States than the UK, although its performance in the 19th century was mixed in both cases. Today, the patent system appears to work well for the pharmaceutical and chemical industries and poorly for most other industries. In most non-chemical industries, the costs of litigation are so astronomical as to completely swamp the patent system’s benefits. That is, the threat of litigation due to inadvertent infringement discourages research and development more than the patent system’s rewards to inventors encourages it. If Bessen and Meurer’s data are right, then the public would be better off if those industries did not have access to the patent system at all.
Bessen and Meurer stop there in their Regulation piece, but in their book, they argue that the fundamental problem is that outside of the chemical industries, the patent system does a poor job of defining the boundaries of patent rights. That is, in industries like software, it’s difficult to determine which patents cover any given product or technology. It’s analogous to a physical property regime in which there were numerous, overlapping claims for any given piece of land, and no clear procedure for sorting out the true owner. Such a “property” system would not have any of the beneficial features that libertarians correctly attribute to well-designed property regimes.
Friedman prize winner Hernando de Soto made a name for himself by advocating reforms to third-world property systems to make them work more like Western property systems. I think we should regard patent reformers like Bessen, Meurer, and Menell as doing something similar: seeking to reform the patent system to bring something like the predictability found in traditional property systems. De Soto understood that until that can be achieved, it’s crucial that the old “property” system not be strictly enforced, because the laws on the books are so far out of sync with the facts on the ground. It’s not fair to a Guatamalan squatter to raze the home he’s lived in for a decade because some bureaucrat decides the land rightfully belongs to someone else. By the same token, it would be unfair to an innovator like Vonage to force it to shut down the Internet telephony network it has constructed because it accidentally violated one of Verizon’s overly-broad patents. Before insisting that people respect patents, we need to make sure that the patent system is respectable.
Patent Trolls Are a Symptom of Deeper Problems
The Center for American Progress’s Matt Yglesias emailed to tell me about the latest issue of Science Progress, CAP’s science journal, which includes an in-depth series of articles on patent reform. The article that particularly caught my eye was this piece on patent trolls. In it, Daniel P. McCurdy discusses the controversy over firms whose sole reason for existence is to acquire patents and then use the threat of litigation to extract licensing revenues. The classic patent troll has no products and no employees other than the lawyers required to negotiate licensing deals and file patent lawsuits.
Patent trolls are a real concern. Most famously, in 2006 Research in Motion was forced to pay $612.5 million to a patent-trolling firm called NTP. No one in the case claimed that RIM had directly infringed NTP’s patents. Rather, RIM had independently developed its technology and only found out years after the fact that it might be covered by NTP’s patents. Even more outrageous, the Patent Office had issued “non-final rejections” of the patents at issue in the case, but didn’t move quickly enough to spare RIM from forking over a 9-figure settlement to NTP.
With that said, it’s important to keep in mind that patent trolls are a symptom of deeper problems with the patent system, not the cause of the patent system’s problems. If we had a well-designed patent system in which only high-quality patents were issued, it would be much harder for patent trolls to engage in the kinds of abusive behaviors McCurdy laments. The reason patent trolling is so profitable is that over the last quarter century the courts have expanded patenting into new areas like software and business methods, and dramatically lowered the bar for receiving a patent. As a result, patents that would have been rejected 30 years ago (like this ridiculous patent on removing white space from database entries, which IBM received earlier this month) are now routinely approved by the Patent Office. As a result, patent trolls are able to buy up low-quality patents by the truckload. Even though the vast majority of the patents won’t survive legal challenges, defendants can’t take the chance that one of them might survive and force the firm into a 8- or 9-figure settlement.
Patent trolls make good poster children for the patent system’s dysfunctions, but focusing too much on them ignores the fact that abusing the patent system is a game played by large companies as well. For example, Verizon managed to extort tens of millions of dollars from Vonage to settle a lawsuit over an absurdly broad Internet telephony patent. Verizon, of course, isn’t a “patent troll,” but a competitor interested in hobbling an up-and-coming competitor. Any patent reform needs to address the Verizons of the world too, not just the NTPs.
The problems with the patent system have primarily been caused by the United States Court of Appeals for the Federal Circuit, which has jurisdiction over patent appeals and has aggressively expanded patenting over the quarter-century since its creation by Congress in the early 1980s. In the long run, the only solution to what ails the patent system is to undo the mistakes the Federal Circuit made. The Supreme Court has begun to make progress in that direction with recent decisions such as eBay (which weakened patent trolls by making injunctions harder to get) and KSR (which raised the bar on obviousness). The Federal Circuit’s Bilski decision, which placed new restrictions on “abstract” patents, is another step in the right direction. But there’s much more to be done. Most importantly, the courts need to overturn the Federal Circuit’s decisions from the 1990s that ruled (ignoring contrary Supreme Court precedent) that software was eligible for patent protection. It’s not a coincidence that the most prominent examples of abusive patent lawsuits are almost all in the IT sector.
There are also steps Congress could take, but the changes most frequently discussed—switching to a “first to file” system, for example—aren’t likely to have much of an impact on the problems of low-quality patents. A better option would be to follow Jim Bessen and Michael Meurer’s advice and dramatically increase fees for obtaining and renewing patents, which would give patent holders incentives not to waste everyone’s time with low-quality patents.
Finally, given that the Federal Circuit has been responsible for many of the problems with the patent system, Congress should strongly consider phasing out the Federal Circuit and returning jurisdiction over patent issues to the 11 geographically-based circuit courts. As I argued in an issue of TechKnowledge last year, competition among circuit courts is an important part of our decentralized common-law system of justice, and it has served us well in virtually every other area of the law. The experiment with a unified patent appeals court has not gone well, and Congress should consider reversing its mistake.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
The Journal vs. the Fourth Amendment
There’s an astonishing editorial in the Wall Street Journal today about the FISA amendments that were passed in July. As you might recall, that legislation granted retroactive, blanket immunity for companies that illegally participated in the government’s wiretapping programs and substantially weakened judicial oversight of government surveillance of domestic-to-foreign communications. Under the new law, the government is no longer required to obtain an individualized warrant if it wishes to spy on your communications with people overseas. Rather, it can submit a “certification” that describes the general parameters of a broad eavesdropping program. Judges are required to approve the requests without ever seeing specific information about who would be targeted. The legislation also lengthened the grace period during which the government can conduct surveillance without any judicial oversight at all. Whereas emergency warrants were previously required within three days of the start of eavesdropping, the new legislation allows the government to spy for as long as four months while the judicial branch deliberates about its legality.
With all that in mind, I’m surprised to learn that the Journal seems to believe that the new, watered-down version of FISA is still too restrictive:
The Attorney General is only allowed to pursue threats up to certain legalistic edges, which contracted under this year’s political compromise that greatly expanded the role of the courts in intelligence gathering. Commissioner Kelly is practically begging people to think about what this means in the real world.
FISA was passed before the advent of disposable cell phones, encrypted emails and high-speed fiber optic networks. Now we live in a world where terrorist communications that originate in, say, Peshawar happen to move through U.S. switching networks. The executive branch already possesses the Constitutional authority to monitor such communications, but Democrats and the political left claimed it was “illegal” under FISA.
Then the anti-antiterror bar filed multibillion-dollar lawsuits against the telecom companies whose good-faith assistance after 9/11 made such surveillance possible. The goal was to shut down the program, and the telcos made it clear they couldn’t cooperate without Congress’s blessing. Forced to choose between a Democratic deal that gave the companies legal immunity or giving up a key U.S. antiterror tool, President Bush chose the former. The price — the one Commissioner Kelly is paying — was narrowing the government’s antiterror wiretapping powers.
What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is.
If the Journal believes it’s problematic for a “faceless FISA judge” who “answers to no one” to deny surveillance requests, then its quarrel isn’t with liberals, Democrats, or trial lawyers, it’s with the Constitution itself. The whole point of the Fourth Amendment is that “unelected judges” oversee the activities of law enforcement.
Moreover, the FISA bill the Journal derides makes it crystal clear that the government can intercept purely foreign-to-foreign communications without any judicial oversight whatsoever. And if our hypothetical Peshawar terrorist is communicating with an American, the government can take advantage of the new “certification” process that involves only cursory judicial review and doesn’t require any showing that the target is involved in terrorism. Only in cases where both ends of the communication are in the United States does the government require an individual warrant.
The Journal appears to take the extreme viewpoint that there should be no judicial oversight of the government’s domestic antiterrorism activities at all. But we know what happens when the government engages in surveillance without judicial oversight. History tells us that when judicial oversight is absent, abuses are inevitable. And if we create a terrorism exception to the warrant requirement, it would steadily grow to swallow the rule. Fighting terrorism is important, but we can do it without sacrificing judicial oversight.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Libertarians Can’t Win
I was pleased to read Ezra Klein’s reaction to this month’s installment of Cato Unbound, in which he defended libertarians’ honor. Well, sort of:
This also gets at the weird nexus between libertarianism and corporate interests. Anti-state is not the same as pro-corporation, and insofar as a lot of liberals understand libertarians to be simple corporate stooges, they’re not quite right. In certain places — notably tech and patent issues, which is one of those spots where government policy and corporate interests converge — there’s nearly unanimous opposition to the position that’s most closely associated with corporate profits. And so Cato doesn’t get a lot of contributions from the recording industry.
But there are plenty of spaces where corporations or other wealthy economic actors see profit in avoiding or repealing certain regulations and laws — energy is notable here, as is the estate tax — and so libertarians find themselves rather well-funded. And then there are spaces where corporations want to profit from a service the government currently controls — like Social Security — and libertarians are quite happy to create an ideological argument for corporate self-interest. Crucially, it’s not that libertarians are always and everywhere in favor of corporate profits, but that they often are, and corporations find that useful, and so you have frequent marriages of convenience that also end up ensuring that the priorities of professional libertarians priorities are those that most effectively support corporate profits, as those are the projects that get funded.
It sounds to me like what Ezra is saying here, in an extremely back-handed fashion, is that libertarians aren’t corporate stooges at all. When the interests of corporations happen to align with what we regard as good public policy, then corporate interests tend to be our allies. Otherwise, they tend not to be. Which, as far as I can tell, is exactly how it should be.
It’s interesting that this discussion is coming up at a time when the biggest issue on the economic policy agenda is how many more hundreds of billions of dollars the American taxpayer will be forced to give to large corporate interests in Detroit, Manhattan, and elsewhere. Strangely enough, you’ll find people on the left-hand side of the political spectrum cautiously endorsing government handouts to some of the nation’s largest and most dysfunctional corporations, while scholars here at the Cato Institute have been sharply critical of welfare for large corporations.
Now, I don’t doubt for a minute that liberals’ support for government handouts to giant corporations is based on their sober assessment of the policy merits, rather than a dedication to “corporate profits” as such. But it is a little bit frustrating that when libertarians take a firm stance against the interests of large corporations, we don’t get praised for our independence so much as getting attacked for our ideological rigidity. These charges can’t both be right: we can’t both be solicitous corporate shills and inflexible ideologues. If people are going to question our motives, I wish they’d at least get their story straight on exactly which kind of intellectual dishonesty they think we’re engaging in.
Is Cato Asleep at the Switch on Copyrights and Patents?
In today’s installment of Cato Unbound, Dean Baker calls libertarians to task for their failure to take a more skeptical stance toward the government-granted monopolies we call copyright and patent protections:
Their enforcement efforts have required terrorizing people for making unauthorized copies of copyrighted material. In a recent case, a single mother was fined several hundred thousand dollars for allowing her computer to be used to download 24 songs over the web. The entertainment industry has gotten the government to prohibit the production of electronic devices because they had inadequate protection against duplicating copyrighted material. They had a Russian computer scientist arrested when he visited the United States because he gave an academic lecture that explained how an encryption lock could be broken. They even went after the Girl Scouts for singing copyrighted songs without permission.
The extraordinary abuses that we see every day as a result of patent protection for prescription drugs and copyright protection should be sending libertarians through the roof, and perhaps it does. But, where are the libertarians’ research programs on alternatives to patents for financing drug research or alternatives to copyrights for financing creative and artistic work?
My area of expertise is information technology policy, so I haven’t written much about pharmaceutical patents, but as a Cato scholar I’ve certainly spilled plenty of ink criticizing the excesses of copyright and patent law as it applies to information technology. Here is the study I did in 2006 criticizing the Digital Millennium Copyright Act, which was responsible for putting that Russian computer scientist in jail. Here is an op-ed I wrote for the New York Times last year pointing out that software patents have become an impediment to innovation in the software industry. Here is an article I wrote this summer for Reason magazine pointing out the problems the DMCA is creating for music consumers. And I’ve done dozens of posts at the Technology Liberation Front criticizing the recent expansion of copyright and patent restrictions. For example, in 2006 I did about 20 posts examining various software patents and pointing out how they were impeding progress in the software industry.
Moreover, we’ve written extensively about methods for producing creative works without copyright protection. These include free software, selling advertising, catering to core fans, selling security, and selling services. Cato published an excellent study in 2006 about the rise of “amateur-to-amateur” culture, which largely thrives outside the constraints of copyright. The growth of these alternative approaches to content creation suggests that in the future, copyright is likely to be less, rather than more, important than it was in the 20th Century.
Filed under: Cato Publications; Telecom, Internet & Information Policy
Diseconomies of Scale vs. Network Effects
I was very interested to read Roderick Long’s opening essay for this month’s Cato Unbound. Long draws a distinction between genuine free markets and policies such as corporate welfare and protectionism that favor the interests of incumbent businesses at the expense of the general public. Almost all libertarians draw this distinction, of course, but Long suggests that many libertarians too readily classify as “free market” policies that are more properly regarded as corporate welfare.
What caught my eye about Long’s article was his claim that in a genuinely free market, businesses would be significantly smaller than they are today. He points out that large, hierarchical businesses are subject to many of the same inefficiencies that plague government bureaucracies. The executives of the largest corporations cannot possibly have enough knowledge to make good decisions about the thousands of different projects various parts of their companies are undertaking, and so it’s inevitable that large companies will suffer from inefficiencies greater than those that afflict smaller firms.
I think this is an important point, and indeed is a theme that runs through my own work. For example, one of the key arguments of my Policy Analysis on network neutrality, which Cato released on Wednesday, is that the Internet’s success depends on the fact that it isn’t owned or managed by any single entity. Back in the 1990s, when the Internet was competing with proprietary online services like AOL and Compuserve, the Internet’s lack of centralized control turned out to be its most important strength. The hierarchical decision-making processes of the AOL and Compuserve companies simply couldn’t keep up with the spontaneous order of millions of Internet users acting without central direction.
Filed under: General; Government and Politics; Telecom, Internet & Information Policy
Ten Years of the DMCA, and Little to Cheer about
This week is the tenth anniversary of the Digital Millennium Copyright Act, which Bill Clinton signed into law on October 28, 1998. I was on last Friday’s Cato Daily Podcast discussing the DMCA’s detrimental effects on high tech innovation, and I’ve got a post at the Freedom to Tinker blog discussing one likely casualty of the DMCA, digital juke box software:
What we’re seeing in the video market is what the digital audio marketplace would have looked like if the recording industry had won its lawsuit against the first MP3 players. The recording industry lost that lawsuit, and entrepreneurs went on to build products that were much better than the “official” ones being pushed by the labels. Unfortunately, entrepreneurs in the digital video market don’t have that same option.
If the DMCA were not on the books, it seems likely that many of us would have set-top boxes with 500 GB hard drives capable of ripping dozens of DVDs to an open, standard format for subsequent streaming to any display in the user’s house. The existence of those boxes would spur the creation of a wider market for other digital video products designed to interoperate with the emerging open video standard.
Unfortunately, that’s not how things have gone. Hollywood has managed to do what the recording industry was unable to do: to ban users from converting their legally-purchased content to open formats. As a result, the market for open digital video devices is a pale shadow of what it would be in a competitive market. We’re stuck with clunky, proprietary, and non-interoperable products like Apple TV that require users to re-purchase their existing movie collections in order to watch them on the new device. I think everyone would agree that it was a good thing that the courts didn’t let the recording industry shut down the MP3 player market a decade ago. So why do we tolerate a law that effectively shuts down the analogous market for DVD jukeboxes?
Deregulation and Inequality
Matt Yglesias has been doing some great blogging lately about the negative effects of certain kinds of government regulation on ordinary consumers:
The fact that Joe is not a licensed plumber would be a great opportunity for an enterprising politician to try to make an issue out of the growth of occupational licensing requirements in the United States and the barriers to economic growth and opportunity they create.
And occupational licensing is hardly the only such example. Lots of America’s land use and business licensing regulations are, likewise, measures that do much more to entrench existing privilege than to promote any kind of public interest…
The original wave of deregulation was promoted by conservatives, but also liberals like Ted Kennedy, Steven Breyer, and Ralph Nader. I think we see now that that wave went too far in some respects, but in other areas it hasn’t gone nearly far enough. This is a good cause for progressives to pick up, but also one that would be completely open for a conservatism that was interested in helping the little guy rather than mocking efforts to help him as the second coming of Josef Stalin.
Matt is getting some criticism from his mostly left-of-center readers for this, but he’s right. Even if you think some recent deregulation went too far (personally I think a lot of what was labeled “deregulation” in recent years wasn’t), the deregulation of the airline, trucking, and telecommunications industries in the 1970s was unambiguously good for consumers and economic growth. Liberals like Ted Kennedy and Stephen Breyer understood this and were key architects of the deregulation effort. A similar wave of deregulation at the local level could do a ton of good, and it would be a lot more likely to succeed if we had the same kind of ideological buy-in from the left-hand side of the spectrum.
I think there’s a related point here for libertarians: we’re often too quick to reject populist rhetoric and concerns about inequality. Certainly there are good reasons to be skeptical of proposals to redistribute income via the tax code. But there are also lots of ways in which government policies widen the gap between rich and poor. So when people express concerns about inequality, the most effective response is not to dismiss those concerns out of hand, but to turn the conversation to the many ways that bad government policies have increased inequality. Liberalization of occupational licensure, business licensing, and land use regulations, restrictions on eminent domain, school choice, and a reduction of corporate welfare are all policies that deregulate and reduce inequality. Libertarians and liberals ought to be natural allies on these populist, deregulatory issues, and such a coalition is more likely to emerge if libertarians take liberals’ concerns about inequality more seriously.
Not All Banks Are Doing Badly
The Washington Post had a story on Friday pointing out that not all banks are on the verge of collapse:
Many smaller banks said they were actually benefiting from the problems on Wall Street. Deposits are flowing in as customers flee riskier investments, and well-qualified borrowers are lining up for loans.
“We collect money from local savers, and we lend it in the local community,” said William Dunkelberg, chairman of Liberty Bell Bank in Cherry Hill, N.J. “We’re doing fine. There are 9,000 financial institutions out there, and most of them are small and most of them are doing fine.”
Dunkelberg, a professor of economics at Temple University and chief economist for the National Federation of Independent Business, added that a recent survey of that group’s members found that only 2 percent said getting a bank loan was the great challenge facing their businesses.
It’s important to remember that “the financial industry” is sprawling and diverse. Some banks are on the verge of collapse. Others appear to be doing just fine. It would be unfair to these more prudent banks (not to mention taxpayers) to bail out their irresponsible competitors. And it’s a mistake to assume that, simply because a few reckless Manhattan firms have fallen, the entire financial industry is on the verge of collapse. It may be that these are simply firms that made too many bad investments, in which case their bankruptcy is precisely what is supposed to happen in a free market. Any Congressional action should be focused on preserving the health of the financial system as a whole, not at preventing the bankruptcy of individual firms that made bad investments.
Filed under: Finance, Banking & Monetary Policy; General
Adventures in Censorship
Matt Yglesias details the ways that McCain-Feingold is restricting his free speech rights. It seems that because Matt now works for a company that lacks a “media exemption,” he’s prohibited from commenting on the “character, qualifications, and fitness for office” of candidates for office. Since Matt has an extremely low opinion of one of the major presidential candidates, I imagine this is pretty hard for him.
And yet Matt doesn’t reach what seems to me the obvious conclusion: that McCain-Feingold is a restriction on free speech that can’t be reconciled with the First Amendment. Matt doesn’t defend McCain-Feingold either, and he’s said in the past that he doesn’t think McCain-Feingold will accomplish much. But it’s awfully hard to come up with an interpretation of “Congress shall make no law… abridging the freedom of speech” that doesn’t protect Matt’s right to question the “qualifications and fitness for office” of candidates for office, or the Center for American Progress’s right to pay him to do so.
Update: Matt writes to point out that both he and his erstwhile colleagues at the American Prospect have long opposed McCain-Feingold as a restriction on free speech. Good for them. They’re more enthusiastic about public financing than I am, but they recognize the basic point that the First Amendment doesn’t allow Congress to restrict people from criticizing political candidates in the months before an election. It’s a pity that the “liberal” members of the McConnell court had trouble grasping the same point. Maybe they should spend less time reading the censorious New York Times editorial page and more time reading the Prospect.
Crovitz on our Broken Patent System
It’s a little old, but I wanted to highlight an excellent column by L. Gordon Crovitz, the Wall Street Journal publisher turned technology columnist, about the damage our broken patent system is doing to innovation:
Companies as diverse as Verizon, Google, Cisco and Hewlett-Packard recently formed the Allied Security Trust to buy patents they may want to use some day and that otherwise could end up in the hands of “patent trolls.” These firms buy up old patents not to produce anything, but instead to work the system to extract settlements. A similar group formed against trolls to protect the Linux open-source operating system. A Google executive explained that helping to buy up and license patents is the “legal equivalent of taking a long, deep, relaxing breath.” Companies can rest easier, and legitimate inventors get paid for their work.
These corporate trusts seem like odd ways to protect products, but the memory is still fresh of the BlackBerry device almost being forced to shut down. Parent company Research in Motion paid more than $600 million in 2006 to settle a case. But in this and many other cases, companies can’t be sure whether or not they are complying with patent law. For example, by one estimate there are more than 4,000 patents that must be reviewed and potentially licensed by firms selling products or services online. The legal abuses arising from uncertainty are legion. More than 100 companies are being sued for alleged patent infringement by using text messaging internationally.
When our most innovative companies are spending large sums to buy protection from the patent system, you know something has gone awry. Crovitz also highlights important new research suggesting that outside of the pharmaceutical and chemical industries, the patent system as a whole actually creates a net disincentive for innovation:
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Pots, Kettles, and Sen. Brownback
Via Yglesias, Sam Brownback is outraged that the Chinese government would spy on foreigners on its soil without a warrant. When it was pointed out to him that the United States government is now authorized to conduct warrantless spying in the United States, he had this to say:
We don’t put the hardware and software on hotels. If there is a targeted individual that seems to be a likely prospect of terrorists, they must go through the FISA court and ask for a court to determine that there is probable cause to be able to listen in on that information.
This is a blanket requirement of a hotel to operate a license in China. It is non-specific to anybody. It can be used on journalists. It can be used on athletes — or, excuse me, they’re at the Olympic village — but on their families. It can be used on democracy advocates, human rights advocates, none of which is prohibited. It is real time.
I think there is a huge difference between these two that are taking place.
Well, except there isn’t. All that’s required under the FISA Amendments that the Senate passed a couple of weeks ago is that the government “certify” that the “target” of the surveillance is located overseas. There’s no requirement that the government identify specific targets, and there’s no “probable cause” requirement at all — not even the permissive “agent of a foreign power” standard that had previously governed FISA intercepts.
This means that if the Olympics were held in the United States, the US government could “target,” say, a foreign newspaper such as the Guardian. And as a means of “targeting” the Guardian, it could tap the hotel rooms of all Guardian reporters in the United States.
Now, under the FISA Amendments Act, the government would have to submit a “certification” to a judge describing the eavesdropping plan. And the judge is required to verify that the interceptions are not “targeting” persons located within the United States. But, the government could argue with some plausibility, the “target” of the acquisition is the Guardian, which is located overseas, not the particular reporters who are in the United States. It would be a close legal question. And anyway, the government “is not required to identify the specific facilities, places, premises, or property” in the certification it submits to the judge, so the judge might not even realize that the government is bugging every reporter.
Worst of all, even if the judge rejected the “certification,” the government would have 30 days to continue eavesdropping before it was required to comply with a judge’s order. Since the Olympics are only about 3 weeks long, that means the government could intercept every single call from every single foreign reporter throughout the entire Olympics regardless of what the judge nominally overseeing the eavesdropping said.
Finally, lest we think the United States government would never do such a thing, the FBI repeatedly spied on “democracy advocates” and “human rights advocates” during the Cold War. For example, between 1954 and 1973, the FBI’s New York office alone conducted 433 break-ins of organizations J. Edgar Hoover didn’t like. Targets included the National Lawyers Guild, the Chicago Committee to Defend the Bill of Rights, the American Youth Congress, Vietnam Veterans against the War, Students for a Democratic Society, the Student Non-Violent Coordinating Committee, the Joint Anti-Fascist Refugee Committee, the League of American Writers, the National Mobilization to End the War in Vietnam, the Jewish Cultural Society, the Civil Rights Congress, and dozens of other organizations. And we only know about those break-ins because the head of the FBI field office failed to destroy his records as he had been ordered to do by Hoover. The records of other field offices were destroyed, but there is every reason to think that a similar number of organizations were spied upon in other cities.
Now, I have no evidence that anything of the sort is going on today. But this is precisely why there needs to be judicial supervision of eavesdropping efforts. Because we know from history that without external oversight, power will inevitably be abused. And unfortunately, Sen. Brownback voted for legislation that significantly reduced judicial oversight of wiretapping activities. Brownback is absolutely right to say that domestic eavesdropping shouldn’t occur until the government has demonstrated probable cause to a judge. Too bad he didn’t vote that way.
Censorship vs. Editorial Discretion
Via Ezra Klein, Tim Fernholz seems to be confused about the nature of censorship:
Conservatives argue (often with comparisons to communist states) that the doctrine, which hasn’t been in effect since 1987, forced the state to mandate speech. It really just provides for reasonable discussion of views, but the Right demagogues the issue to raise money and keep Rush Limbaugh on the air unopposed.
But now that McCain can’t get his stuff in the Times, it’s a terrible moment for American media! The FCC’s regulation wouldn’t affect a print newspaper, obviously, but it’s rank hypocrisy for McCain to complain that he’s not getting a fair shot, especially when he is co-sponsoring legislation to permanently ban the Fairness Doctrine. Apparently, equal time is only a bad idea when liberal views are being silenced.
This really isn’t complicated: The difference between advocates for bringing back the fairness doctrine and conservative critics of the New York Times is that the conservatives are not (as far as I know) advocating that the government force the New York Times to carry John McCain’s op-ed, or even to carry a certain quota of conservative columnists in order to ensure a “reasonable discussion of views.”
Fernholz dances around this issue, asserting that it’s not really censorship because the goal is simply to promote a “reasonable discussion of views.” And it’s true, I guess, that the Fairness Doctrine doesn’t involve giving the White House veto power over which stories get aired on NPR. But imagine if every five years the New York Times had to get its printing license renewed, and the Federal Press Commission reviewed the previous five year’s op-ed pages to ensure that they had represented a “reasonable discussion of views.” Fernholz can’t seriously claim that this would have no effect on the Times’s coverage—that it might not decide to scratch a few op-eds critical of the current administration or maybe hire an extra conservative (or liberal, depending on who was in power) columnist to make sure there weren’t any “reasonableness” problems during the license renewal process.
No, conservatives and liberals agree that the publishers of newspapers have a right to print whoever they please on their op-ed pages, “reasonable” or otherwise. The same principle applies to broadcast media, and for the same reasons.
Larry Lessig’s Crusade against “Money in Politics”
A few months ago, during a visit to DC, I had the pleasure of meeting Chris Hayes, a sharp writer for the Nation. At the time, he was working on this profile of Larry Lessig, which I missed when it first ran back in May. Lessig made a name for himself with his writings on copyright policy, which have greatly influenced my own work on the subject. He made headlines last year when he announced that he would be leaving copyright policy behind to focus instead on a new project that became the Change Congress movement. The goal is to use cutting-edge tools to pressure members of Congress to take four pledges: to stop taking money from lobbyists and PACs, to support earmark reform, to support increased government transparency, and to support public financing in campaigns. As Hayes describes it, Lessig’s fundamental goal is to, in the oft-repeated phrase, “get money out of politics”:
In today’s terms, you might call it the Medicare Part D problem: even when Congress starts out with a laudable policy goal, like providing prescription drugs for seniors, by the time the legislation gets through both houses it amounts to little more than a grab bag of giveaways to politically connected business interests. Case in point: the recent Senate-passed Foreclosure Prevention Act, which contains $25 billion in tax breaks for home-builders and other businesses while doing very little to justify its name. The reason for this is straightforward: the amount of money spent on lobbying in the last Congressional session was $2.8 billion, nearly two times more than was spent in 2000. Overall, industry has contributed $14 million to Congressional candidates in this session.
This money, Lessig says, insidiously distorts Congressional outcomes and priorities because Congress members don’t experience it as corruption. “Let’s say you go to Congress,” says Lessig, “and you believe there are two problems to deal with: piracy of copyrighted materials and welfare mothers who are really getting screwed by the system. You open up shop, and a million [lobbyists] come in and say we’ve got a thousand things to tell you about piracy, and nobody comes into your office and says we’re going to help you with the welfare moms. So you shift your focus, but you never feel it. You think: maybe I could’ve spent more time on welfare moms, but I’m having a real effect on stopping piracy! That’s the dynamic that is so critical here.”
What’s striking about this example is that it actually has very little to do with campaign contributions. The hypothetical here isn’t that the member of Congress starts out with a “good” position on copyright issues and then is persuaded to change his mind when the lobbyist hands him a sackful of campaign cash. Rather, the hypothetical is that the member of Congress already has a variety of legislative goals, and he’s swayed by lobbyist pressure to focus on the ones that serve well-connected interests and ignore the ones that serve the broader public.
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Legislating in the Dark
Andrew Sullivan says he can “live with” the FISA legislation:
But it seems to me the focus of blame should be on the president and should be exercised primarily through political rather than legal means. And the trouble with prosecution is that it does become difficult to determine when exactly we stop forgiving illegal actions designed for the public safety in the immediate wake of a catastrophe like 9/11. I do forgive it in the wake, and see some lee-way for executive energy in moments of crisis or unknowing probably for a while thereafter (even though it horrifies me that the Bush administration would have merrily assigned all these powers to itself indefinitely if it could, and not even told anyone, let alone come promptly to the Congress asking for a reformed FISA law). But how do you prosecute a company on the basis of that kind of blurry line - granting immunity before but not after a point we deem appropriate or defensible?
My concerns are appeased now that the Congress has signed on in the light of day, that a court is there as a safeguard, retroactively if necessary, and that FISA is re-established as the exclusive mechanism for government wiretapping.
What puzzles me about this is that I don’t know what he means by “in the light of day.” We still don’t know who was spied on. We don’t know if it started before the September 11 attacks — one former telecom exec claims it began 7 months before the attacks — or if it was initiated months after the emergency had passed. And we don’t know the extent of the program: if it targeted just a handful of suspected terrorists or if, as the Klein declaration suggests, the phone companies gave the NSA unfettered access to all international traffic it carried. Given that Congress didn’t know these things, it makes no sense to say that it legislated “in the light of day.” Congress chose to debate in the dark, with no real knowledge of what they were granting immunity for, nor what they were approving going forward.
Even worse, the legislation appears to be specifically designed to foreclose avenues that could be used to uncover what has been done. The telecom immunity provisions have gotten a lot of attention, and they’re obviously one vehicle that could have shed some light on things. Another, less noticed, provision prohibits state utility commissions from investigating telco participation in these programs, a provision specifically designed to shut down several pending investigations by state utility commissions. And of course, the reduced judicial oversight, along with the provisions allowing the government to bypass the courts and issue “directives” directly to telecom companies, ensures that judges won’t know all that much about these programs either.
It would be one thing if Congress had conducted a thorough investigation, determined exactly what the telcos had done, and then reached the conclusion that the program, while technically illegal, was a reasonable and forgivable response to an emergency situation. It’s quite another thing to grant immunity without knowing what the immunity is for, and then give the administration and the telecom companies the green light to continue doing it without meaningful judicial oversight. That’s not signing on “in the light of day.” It’s signing a blank check.
I should mention the one provision that may yet bring some details to light: the legislation does mandate that the inspectors general of the various government agencies involved in intelligence-gathering prepare a report on the “Terrorist Surveillance Program” and submit it to Congress. That’s a worthwhile exercise, and similar reports have produced important information about lawbreaking in the past. However, it’s not clear how much detail these reports will contain, nor is it clear what Congress will do if the administration stonewalls. More to the point, Congress should have waited for the results before deciding whether to grant immunity. That’s what the Bingaman Amendment would have done: put the lawsuits on hold but delayed granting immunity until after the inspectors general had delivered their report. If the Senate had been serious about legislating “in the light,” they would have approved that amendment, but it was voted down along with the others.
Plainly Unreasonable
Hans Bader links to a prior post purporting to show how the immunity provisions of the FISA bill will “end a legal double standard that discriminates against the telephone companies.” In particular:
It’s worth noting that the federal officials who created a surveillance program already enjoy “qualified immunity” against having to pay damages, even if a court later declares the program illegal, unless their belief that it was legal was plainly unreasonable. (They can still be ordered by a court to stop operating the program, but they can’t be ordered to pay damages if the defense of qualified immunity applies). But private companies, unlike government officials, do not enjoy such “qualified immunity” against damages, exposing them to potentially huge liabilities and attorneys fees. That is odd, since the government should be subject to a tougher standard of liability than private companies, not the other way around.
There are two problems with this. First, the “qualified immunity” standard Bader discusses is not the standard that the “compromise” FISA legislation would establish. Rather, the legislation would require judges to dismiss the lawsuits if the defendants can produce a piece of paper from the government stating that the program was legal. Since we already know that the companies have such pieces of paper, that imposes no real restriction at all.
More importantly, the theory that warrantless wiretapping is legal was “plainly unreasonable.” Don’t listen to me, listen to Judge Vaughn Walker, a Republican appointee, who wrote in 2006: “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
The FISA Bill: A Paper Tiger
The Washington Post has a defense of the FISA bill that shows a breathtaking level of naivete. Consider this sentence, for example:
The measure requires an individualized, court-approved warrant to conduct surveillance targeted at Americans’ communications with those overseas and — in an expansion of existing FISA protections — at Americans abroad.
It’s true that the bill contains language nominally prohibiting surveillance “targeted at” a particular American. If the NSA wants to spy specifically on Tim Lee in St. Louis, it will need to get an individualized FISA warrant to do so. But what the Post fails to mention is that while an individual warrant would be required to intercept just my communications, no warrant would be required to intercept all international calls by St. Louis residents. As long as no particular St. Louisans were the “target” of the surveillance, and as long as foreign intelligence was “a significant purpose” of this surveillance program—an easy standard to meet—nothing would prevent the government from also using the information intercepted for a variety of other purposes, such as catching people engaged in tax evasion or online gambling.
Moreover, precisely because of the lack of judicial oversight of such dragnet surveillance programs, it’s not clear that the prohibition on “targeting” Americans will have any teeth. Here’s what’s likely to happen: the NSA will develop a variety of sophisticated software algorithms to scan all the traffic intercepted for various patterns of interest to the NSA and other federal agencies. The NSA could conceivably use hundreds of different filters that single out particular communications based on a variety of criteria—keywords, unusual patterns of calls or emails, communications with current suspects, and so forth. The judge reviewing the “certification” for such a program would be required to wade through hundreds of pages of documentation describing what the software did—probably written in dense, technical language and then translated into lawyer-speak. I’ve got a computer science degree, and I doubt I could tell whether the algorithms so described “targets” Americans; certainly no 70-year-old judge is going to be able to do so.
Telco Immunity Is Just the Icing on the FISA Bill
I’ve got an in-depth piece at Ars Technica examining the provisions of the FISA “compromise” that the Senate will vote on this week. Most of the media coverage has focused on the telecom immunity question, but I thought it was important to dig into the law’s other provisions, which are potentially more important in the long run. Sadly, but not unexpectedly, the news isn’t good:
When it comes to judicial oversight of domestic-to-foreign calls, the legislation the House passed last month is an unambiguous victory for the White House and a defeat for civil libertarians. The legislation establishes a new procedure whereby the Attorney General and the Director of National Intelligence can sign off on “authorizations” of surveillance programs “targeting people reasonably believed to be located outside the United States.” The government is required to submit a “certification” to the FISA court describing the surveillance plan and the “minimization” procedures that will be used to avoid intercepting too many communications of American citizens. However, the government is not required to “identify the specific facilities, places, premises, or property” at which the eavesdropping will occur. The specific eavesdropping targets will be at the NSA’s discretion and unreviewed by a judge. Moreover, the judge’s review of the government’s “certification” is much more limited than the scrutiny now given to FISA applications. The judge is permitted only to confirm that the certification “contains all the required elements,” that the targeting procedures are “reasonably designed” to target foreigners, and that minimization procedures have been established.
Crucially, there appears to be no limit to the breadth of “authorizations” the government might issue. So, for example, a single “authorization” might cover the interception of all international traffic passing through AT&T’s San Francisco facility, with complex software algorithms deciding which communications are retained for the examination of human analysts. Without a list of specific targets, and without a background in computer programming, a judge is unlikely to be able to evaluate whether such software is properly “targeted” at foreigners.
The House legislation also drastically extends the timeline for reviewing surveillance activities, potentially allowing the government to commence eavesdropping and then drag out judicial review for months. Under existing law, the government must obtain judicial approval within 72 hours of the start of emergency wiretapping. In contrast, the judicial review of “certifications” can stretch out as long as four months. After beginning eavesdropping, the government has a week to submit its “certification” to the FISA court, which has 30 days to review the application. If the judge finds problems with the certification, the government can continue eavesdropping for another 30 days before it is required to comply with the order. And the government can buy still more time by filing an appeal to the FISA Court of Review. The appeals court may take as long as 60 days to make its decision, and the government will often be allowed to continue eavesdropping throughout the process of judicial review. This means that in many cases, the government will have completed its spying activities long before the courts reach a decision on its legality.
I point out that after a 2002 court decision, there are now few restrictions on coordination between intelligence-gathering and law enforcement agencies. So while the NSA wouldn’t be able to specifically target American citizens for surveillance, it could follow suggestions from the FBI to tailor its filters to intercept evidence of American citizens engaged in, say, tax evasion or Internet gambling. Terrorism would need to be a “significant purpose” of the surveillance, but if these “intelligence gathering” activities can be designed to also catch a significant number of domestic criminals, so much the better!
It’s also important to remember that, as I write over at the Technology Liberation Front, the FBI has a long history of engaging in illegal wiretapping even when doing so is expressly prohibited by statute. The same is true of the NSA. Therefore, it’s sheer fantasy to imagine that the executive branch won’t exploit every loophole available to it. Federal spying agencies will do what they’ve always done: push the law to the breaking point in pursuit of more sweeping spying powers, and maybe break the law outright. This is why judicial oversight is so important, and why it’s so disturbing to see Congress replace traditional warrants with “certifications” that can cover broad eavesdropping programs. That will make abuses of power much easier to carry out and much harder for judges to monitor.
Repeat after Me: FISA Doesn’t Expire
One of the hazards of running a grassroots campaign is that sometimes those grassroots supporters raise a ruckus if you don’t live up to your primary campaign promises. The New York Times reports that 7000 of Obama’s supporters (the number is up to 13,000 as I write this) have created a group on Obama’s own campaign website to pressure him to reject the “compromise” FISA legislation that the House passed last month. Obama declared his opposition to any FISA legislation that included retroactive immunity back in February, and many of Obama’s liberal supporters feel betrayed that while he is still nominally against the immunity provision, he has signaled a willingness to support the overall legislation whether or not the immunity provision is stripped out.
Not surprisingly, the Obama campaign’s response is both lame and misleading:
Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.
“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.”
I feel like a broken record, but FISA, which was enacted in 1978 and updated in 2001, doesn’t expire. It will remain the law of the land indefinitely, whether or not Congress passes new legislation this month. The Protect America Act, which was passed last August, has already expired — back in March. As I pointed out at the time, the expiration of the PAA simply returned us to the permissive surveillance regime that Congress enacted with the Patriot Act in 2001. That regime isn’t perfect, to be sure, but it leaves our intelligence community with plenty of tools to spy on terrorists.
What Mr. Craig is most likely referring to is the fact that the first surveillance “authorizations” under the PAA will begin expiring in August. These “authorizations” are good for a year, so any authorizations approved in August 2007 will expire in August 2008. But that simply means that intelligence officials will have to apply for a FISA order under the still fairly permissive Patriot Act rules. Those rules include a lower legal threshold than exists under ordinary criminal wiretaps, and an “emergency” provision allowing wiretapping to begin immediately and authorization to be sought after the fact. The net result will be a modest increase in the NSA’s paperwork burden, but there’s no reason to think any reasonable surveillance activities will cease. (Some indiscriminate vacuum-cleaner surveillance may have to be stopped, but that wouldn’t be a bad thing)
Indeed, Pres. Bush himself praised the changes Congress made to FISA in the wake of the September 11 attacks, noting that the Patriot Act’s FISA amendments “will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones” and makes the intelligences community “able to better meet the technological challenges posed by this proliferation of communications technology.” That’s the legal regime that will apply if Congress declines to enact a FISA bill this year. There hasn’t been a major terrorist attack on American soil in the six and a half years that legal regime has been in place. Surely it will serve us well enough for another six and a half month until Obama himself is likely to be sitting in the Oval Office and can negotiate a FISA reform more consistent with his supposed liberal principles.
FISA Face-saving
Since the new FISA bill was announced last week, Democratic leaders have been desperately trying to spin the legislation as a hard-won compromise rather than a capitulation. Time has an article on the FISA bill that’s a classic of the genre:
A compromise deal to extend the federal government’s domestic spying powers, passed by the House on Friday and expected to sail through the Senate next week, has drawn attacks from both sides of the political spectrum. The right is unhappy at concessions made to protect civil liberties; the left is furious that the Democrats allowed the domestic spying powers to be extended in any form.
There’s just one problem with this framing of the issue: outside of the Democratic leadership and a few elite journalists, no one believes it. Conservatives sure don’t. If you look at what actual conservatives are writing about the deal, you’ll find most of them crowing in victory. National Review’s Ramesh Ponuru, for example, says “It sure looks like [House Democrats] got rolled.” National Review’s Andy McCarthy calls the deal “the best we could have hoped for under the circumstances.” Coverage of the announcement on Human Events quoted no outraged conservatives. Paul at Power Line calls it “a decent FISA deal that’s likely to pass.” John McCormack at the Weekly Standard gives a thumbs up, as does Michelle Malkin.
And then there are the Republicans in Congress. Virtually every Republican in the House voted for the bill (compared with fewer than half the Democrats), and Kit Bond said that “I think the White House got a better deal than they even had hoped to get.”
In short, I’m hard-pressed to find even one person on “the right” who is opposing the bill. Virtually every civil liberties advocate opposes the legislation; virtually every partisan for executive power is happy with it. That is not a compromise. The deal was an unqualified victory for the White House, and everyone except the Democratic leadership knows it.
The article also suggests that Pelosi capitulated because “Democrats still trail on national security, and that could hurt them in Congress.” It seems to me that this represents a fundamental misunderstanding of the politics of national security issues. Democrats are perceived as weak on national defense largely because they’ve failed to articulate a clear position on the issue and stick to it. This spring, they staked out the principled (and in my view, correct) position in favor of judicial oversight and against retroactive immunity and got some good press for it. Now, they’re backing off from that view. Were they wrong back in March, or are they unwilling to stand up for their convictions now? Either way, the performance doesn’t inspire confidence in their judgment.
The article rather badly mischaracterizes the immunity provisions of the legislation:
Under Administration proposals, the telecoms would have received full retroactive immunity from lawsuits brought by civil libertarians alleging they violated the Fourth Amendment by complying with Administration requests to conduct wiretaps following 9/11. In negotiations with Pelosi’s office, the telecoms offered a compromise: Let a judge decide if the letters they received from the Administration asking for their help show that the government was really after terrorist suspects and not innocent Americans.
If the legislation passes, the judge won’t decide if the administration was “really after terrorist suspects.” The judge will simply determined whether the telecom companies received a letter from the executive branch stating that the programs were legal. And we already know that the telecom companies received such a letter, because it says so in a report from the Senate Intelligence Committee. There is therefore absolutely no doubt that if the legislation passes, the lawsuits will be dismissed. The changes to the immunity provision were a face-saving exercise, not a substantive compromise.
Blind Faith and FISA
Over at Ars Technica, I cover Sen. Chris Dodd’s plans to filibuster the FISA bill that is now under consideration in the Senate. Given that the Senate already overrode Dodd’s filibuster and passed legislation that undermines civil liberties back in February, his effort this time is a long shot. But he’s giving it all he’s got. Dodd gave a really excellent speech on the Senate floor in opposition to the legislation. He makes a lot of great points, but this passage was my favorite:
This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear: “Trust me.”
And that message comes straight from the mouth of this President. “Trust me.”
What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt. But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark. I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.
I can’t put it better than this: “‘Trust me’ government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.”
Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan — in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.
We once had a Republican president who understood that blind faith in the president was unpatriotic. Not only do few Republicans understand that today, but it seems a lot of Democrats have forgotten it too.
Certifiably Misleading
The FISA “compromise” I alluded to earlier today has now been released. I haven’t yet had time to analyze the text of the bill, but one thing that’s clear from the accompanying summary is that the immunity provisions are as bad as civil libertarians feared. Here’s Steny Hoyer’s summary of the “improvements” to the immunity language:
This new standard [for granting immunity] provides for meaningful review by the District Courts, where the cases are currently pending, of whether companies received written directives from the government requesting post‐9/11 assistance.
It seems to me that this misses the point rather badly. Under our system of government, searches are conducted pursuant to warrants or other court orders. This is an important check on the executive branch’s surveillance powers because it ensures an independent magistrate will review any surveillance activity and block those that aren’t conducted pursuant to the law.
To treat a “written directive from the government” as a substitute for a court order is to abandon this fundamental principle. Once we accept the premise that the executive branch can “authorize” surveillance without judicial oversight, the standard of review for analyzing the resulting “written directives” is entirely beside the point. I don’t care if the Bush administration wrote letters to telecom companies “certifying” that participation in the warrantless spying programs was legal. That’s not how the law works. These are large companies with plenty of lawyers on staff who know this area of law as well as anyone in the executive branch. They could and should have done what Qwest’s former CEO says he did and told the Bush administration to come back when they had a relevant FISA warrant.
It’s a safe bet that no matter what “standard of review” is chosen, the courts will find that the companies did, indeed, act pursuant to a “certification” from the executive branch. Therefore, directing the courts to dismiss the lawsuits if the companies can produce such a “certification” is functionally no different from no-questions-asked immunity. It will mean no real consequences for breaking the law, and no real incentive for companies to be more careful about following the law in the future.
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