Two weeks ago, a new bill called the Stop Online Piracy Act was introduced in the House. The bill has attracted criticism from a wide variety of libertarian thinkers. In this post I’ll highlight three of the most compelling responses.

First, at Ars Technica, I interviewed Ryan Radia of the Competitive Enterprise Institute, who argues that SOPA threatens to undermine the legal “safe harbor” that protect sites like YouTube and Flickr from liability for the actions of their users.

Supporters of SOPA say it’s needed to combat “rogue” websites hosted overseas. Such rogue sites deliver infringing content to American consumers while remaining out of reach of American law enforcement. But Radia argues that supporters of the bill are being disingenuous when they claim the bill only targets rogue sites:

“The bill is written in a way that covers a far broader category of sites” than ordinary “rogue” websites, Radia told Ars. “I think this is intentional.”

“Many of the companies that have long wished that the DMCA imposed a greater obligation on online intermediaries to act against infringement see this bill as an effective means of accomplishing their end goals without opening the can of worms of revisiting the DMCA safe harbor,” he said.

Radia pointed out that “it’s entirely possible that an intermediary that is protected by the DMCA safe harbor could also fit within the category of sites dedicated to infringement.” So companies that build websites based on the rules of the DMCA might suddenly find themselves on shaky legal ground.

Radia notes that the legislation is broadly unpopular in the venture capital community and warns that the uncertainty it would introduce could chill high-tech investment.

Also today on Time’s website, the Mercatus Center’s Jerry Brito argues that SOPA is a “cure worse than the disease.” He focuses on a provision that allows the government to create a blacklist of alleged rogue websites and compel ISPs to remove them from their domain name servers:

At a moment when Secretary of State Hillary Clinton is urging world governments to keep their hands off the Internet, creating a blacklist would send the wrong message. And not just to China or Iran, which already engage in DNS filtering, but to liberal democracies that might want to block information they find naughty. Imagine if the U.K. created a blacklist of American newspapers that its courts found violated celebrities’ privacy? Or what if France blocked American sites it believed contained hate speech? We forget, but those countries don’t have a First Amendment.

The result could be a virtually broken Internet where some sites exist for half the world and not for the other. The alternative is to leave the DNS alone and focus (as the bills also do) on going after the cash flow of rogue websites. As frustrating as it must be for the content owners who are getting ripped off, there are some cures worse than the disease.

Finally, at CNet Larry Downes of Tech Freedom calls SOPA “Hollywood’s latest effort to turn back time.”

Larry, Jerry, and Ryan all believe that some kind of “rogue sites” legislation is necessary. I’m not so sure; I think Congress struck the right balance when it created the DMCA’s safe harbor in 1998. But either way, we’re all concerned about the detrimental effects that SOPA—and its Senate companion legislation known as the PROTECT IP Act—will have on Internet freedom.

Three Libertarians Raise Concerns about the Stop Online Piracy Act is a post from Cato @ Liberty - Cato Institute Blog

In my last post I pointed out that Bill Niskanen, writing in the most recent edition of the Cato Handbook for Policymakers, suggested that the Fed should focus on keeping the economy growing at a nominal rate of around 5 percent per year. This allows for an average annual growth rate of around 3 percent and an annual inflation rate of around 2 percent.

He illustrated the idea with this chart:

This shows how far nominal sales has deviated from the trend of 5.5 percent per year over the last two decades. It ends in early 2008, which was the most recent data available at the time he was writing. According to Niskanen’s theory, values above the line are a sign that monetary policy is too loose, while values below the line are a sign that monetary policy is too tight.

In his analysis, Niskanen focused on the three positive deviations in the chart, which started around 1988, 1999, and 2005, respectively. He argues that too-loose monetary policy during these periods created bubbles, which then popped and sparked recessions.

Karl Smith has helpfully reproduced and extended the chart to the present day. The results are striking:

Here we can see that nominal final sales to domestic purchasers fell way, way below trend starting in late 2008. And not only has it not recovered, it’s actually been falling further behind! Which suggests that according to Niskanen’s rule, monetary policy started to be too tight in mid-2008, and has been too tight ever since.

More on Nominal Sales and Monetary Policy is a post from Cato @ Liberty - Cato Institute Blog

Economist David Beckworth and conservative commentator Ramesh Ponnuru have an interesting piece in the New Republic blaming the Federal Reserve’s unduly tight monetary policy for the recent recession and current slow recovery:

For the 25 years leading up to our current mess—the period economists have come to call “the great moderation”—the Fed did a pretty good job of stabilizing the economy. The result of its monetary policies was that the economy, measured in current-dollar or “nominal” terms, grew at about 5 percent a year, with inflation accounting for 2 percent of the increase and real economic growth 3 percent. Keeping nominal spending and nominal income on a predictable path is important for two reasons. First, most debts, such as mortgages, are contracted in nominal terms, so an unexpected slowdown in nominal income growth increases their burden. Also, the difficulty of adjusting nominal prices makes the business cycle more severe. If workers resist nominal wage cuts during a deflation, for example, mass unemployment results.

During the great moderation, people began to expect spending and incomes to grow at a stable rate and made borrowing decisions based on it. But maintaining this stability requires the Fed to increase the money supply whenever the demand for money balances—people’s preference for cash over other assets—increases. This happened in 2008 when, as a result of the recession and the financial crisis, fearful Americans began to hold their cash. The Federal Reserve, first worried about increased commodity prices as a harbinger of inflation and then focused on saving the financial system, failed to increase the money supply enough to offset this shift in demand and allowed nominal spending to fall through mid-2009.

That drop in nominal spending was the most severe decline since 1938. Since then, none of the Fed’s much-debated moves toward monetary ease have brought nominal spending back to where it would have been had the expected 5 percent growth been maintained all along. Consequently, incomes are lower, debt burdens are higher, and banks are weaker than they should be.

Beckworth and Ponnuru’s focus on maintaining a steady growth in nominal GDP is very similar to the position espoused by the late Bill Niskanen. Writing in the most recent edition of the Cato Handbook for Policymakers, Niskanen called for the Fed to maintain the growth of nominal domestic spending:

The intent of Congress would be better served and monetary policy would be more effective if Congress instructed the Federal Reserve to establish a monetary policy that reflects both their concerns in a single target. The best such target, I suggest, would be the nominal final sales to domestic purchasers—the sum of nominal gross domestic product plus imports minus exports minus the change in private inventories. First, this is a feasible target: nominal final sales to U.S.-based purchasers are almost completely determined by U.S. monetary policy, whereas the rate of economic growth and the inflation rate are separately affected by a variety of domestic and foreign conditions. Second, this target provides the correct incentives: for any rate of increase in final sales, a reduction of the inflation rate increases the rate of economic growth. Congress is best advised (1) to specify a target rate of increase of final sales and (2) to instruct the Federal Reserve to minimize the variance around this target rate. The target rate of increase of final sales may best be about 5 percent a year, sufficient to finance a realistic rate of economic growth of 3 percent and an acceptable rate of inflation of about 2 percent.

For the past 20 years, actual final sales increased at a 5.4 percent annual rate with an average inflation rate of 2.4 percent, illustrating that a 5 percent annual increase of final sales would be both feasible and a slightly superior target. The primary problem of U.S. monetary policy during this period, as illustrated by Figure 36.1, is that the Federal Reserve overreacted to three financial crises, creating three ‘‘bubbles’’ of aggregate demand—the correction of which caused two subsequent shallow recessions and, most likely, a third.

Niskanen was writing in mid-2008, before the full extent of the financial crisis had become apparent. He worried that the Fed was over-reacting with easy money:

Most of the variation in demand during the past 20 years has been triggered by the Fed’s response to financial crises. A second lesson is that the Fed seems to overreact. A reasonable standard by which to judge the Fed’s response to a financial crisis would be to avoid a decline in the growth of demand relative to the target path. Instead, the Fed’s response to financial crises has led demand to increase relative to the target path. A third lesson is that the necessary measures to deflate the demand bubbles caused by overreacting to financial crises should be expected to lead to a recession.

“This story is not yet over,” Niskanen wrote. The fall in nominal spending in 2008-09 cited by Beckworth and Ponnuru suggests that the Fed may have underreacted to an unusually severe financial crisis.

Beckworth, Ponnuru, and Niskanen on Monetary Policy is a post from Cato @ Liberty - Cato Institute Blog

Today’s big tech news is the release of a new generation of Amazon Kindles. Of particular interest is the Kindle Fire, a $199, 7-inch color touchscreen tablet based on Android. It seems destined to become the most credible competitor to the iPad.

One point I haven’t seen anyone make about this is the importance of open source software to the evolution of the tablet computing market. Google decided to make Android an open-source operating system, which meant that third parties could take the code, tweak it for their own needs, and sell competing Android-based products. That’s what Barnes and Noble did last year with the Nook Color, and it’s what Amazon did to create the Kindle Fire.

Obviously, the fact that Android was available has made it much easier for Barnes and Noble and Amazon—as well as traditional consumer electronics firms like Samsung and Motorola—to enter the market. But it also has important implications for the long-term future of competition in the tablet market. Software platforms tend to be a winner-take-all affair thanks to network effects. In the PC operating system market, the 1980s were a period of intense competition and rapid innovation, followed by the 1990s when Windows became utterly dominant and the pace of innovation slowed. The same thing happened with browsers: intense competition in the late 1990s between Netscape and Microsoft, followed by a period in the early 2000s where Microsoft was utterly dominant and browser innovation slowed.

Things are different now because both the browser and OS markets are becoming dominated by open source software. In the browser market, the two fastest-growing browsers—Safari and Chrome—are both built on top of WebKit, an open source project started by Apple. And now Amazon’s new browser, called Silk, is also built on WebKit. It’s unlikely Amazon would have entered the browser market if they’d had to build a browser from scratch.

Meanwhile, Amazon’s announcement of the Kindle Fire adds to Android’s already-considerable momentum. The Kindle Fire and stock Android tablets will reportedly be able to run each others’ apps, which means that the success of one will expand the market for the other.

It’s hard to make predictions, especially about the future, but I suspect that tablets and browsers will be dominated by Android and WebKit, respectively. Yet because Android and WebKit are open source projects, there’s little danger that their growing popularity will lead to the dominance of one firm, with the resulting stagnation. Even if the market is dominated by a single platform, that market share will be shared among several companies that build products using that platform, who wil compete with each other to produce enhancements to the underlying, shared code. And because firms won’t have to build new OSes or browsers from scratch, barriers to entry will be low. The future of the open Internet is looking really bright.

Cross-posted from Forbes.com

The Kindle Fire and the Triumph of Open Source is a post from Cato @ Liberty - Cato Institute Blog

Many of the best jobs for computer programmers are concentrated in the San Francisco Bay Area, where dozens of innovative software companies—Google, Facebook, Apple, Intel, Cisco, Adobe—are located. This concentration of innovative, rapidly-growing firms shows up in income statistics. For example, the average wage in the San Jose metropolitan area, around $80,000, is among the nation’s highest.

Yet strangely, the Bay Area as a whole has been growing slowly. Between 1990 and 2000, the population of the Bay Area grew by 12.6 percent, slower than the 13.2 percent growth rate of the nation as a whole. Between 2000 and 2010, the Bay Area grew by just 5.4 percent, barely half the 9.7 percent growth rate of the nation as a whole. Compare that to the Phoenix metropolitan area. Despite dramatically lower wages (the average is less than $50,000) it attracted enough people to grow by a whopping 45 percent in the 1990s, and by 29 percent in the last decade.

A major factor is a severe shortage of housing in the Bay Area. Lots of people would like to live there, but the supply of homes hasn’t kept up. As a result, the median home in the Bay Area cost about $600,000 in 2009. This means that even though Silicon Valley firms offer some of the nation’s highest wages, many families can still increase their standard of living by moving to cities like Phoenix, where the median home costs about a third as much.

This pattern has been with us for long enough that most of us just take it for granted. Everyone knows that large cities are outrageously expensive, and that families often have to move to less glamorous cities to find homes they can afford. But in his new book The Gated City, Ryan Avent argues that this complacency is misguided. Living in the heart of a large city will never be as cheap, per square foot, as living in an outer-ring suburb. But the enormous discrepancy in housing costs between Silicon Valley and the Sun Belt is mostly a result of government regulations, not the inevitably higher costs of urban life.

In the 19th Century, the most innovative cities tended to also be the fastest growing. New York, Chicago, and Detroit all grew by an order of magnitude in the late 19th and early 20th centuries as key American industries grew in them. Skyscrapers sprang up in these cities’ downtowns. In New York and Chicago especially, developers built dense, walkable neighborhoods to accommodate the surging demand for housing. And this, in turn, helped keep supply in balance with demand and avoided large price increases.

This isn’t happening in Silicon Valley. If Wikipedia is to be believed, the tallest skyscraper in San Jose, the self-styled capital of Silicon Valley, is a pathetic 22 stories tall. Silicon Valley continues to be dominated by low-density, suburban patterns of development, even as housing prices have skyrocketed.

Why is this happening? In a nutshell, it’s because high-density development is illegal. The city of San Jose has 350 pages of regulations that place an effective ceiling on building density. The regulations include minimum lot sizes, minimum building setbacks, maximum building heights, minimum parking requirements, and so on. Of course, developers can apply for exceptions to these rules, but when they do so, city officials are besieged by what Avent calls NIMBY’s (“Not In My Back Yard”), local activists who strenuously oppose having more people live or work in their neighborhoods.

Avent argues that this isn’t just an aesthetic or lifestyle dispute between those who like the suburban lifestyle and those who prefer to live in cities. By strangling the growth of America’s densest and most productive cities, restrictive zoning laws actually make the nation poorer. When an engineer leaves his $80,000 job in Mountain View for a $60,000 job in Scottsdale, he may wind up with a larger house and more disposable income. But the economy as a whole becomes less productive. In a free market, developers would be allowed to supply more housing in Mountain View so that engineer could enjoy a higher salary and an affordable home. And the phenomenon isn’t limited to the Bay Area. Large, coastal cities like New York and Boston also have high wages but anemic population growth. Meanwhile, people flock to cities like Atlanta, Las Vegas, and Charlotte with lower wages but cheaper housing. Deregulation would not only allow more people to enjoy life in America’s most dynamic cities, but it would have a real impact on the nation’s economic growth.

The Gated City is a Kindle Single. It’s just $2, and short enough that you’ll be able to finish it in an afternoon.

Zoning Laws Are Strangling Silicon Valley is a post from Cato @ Liberty - Cato Institute Blog

On Thursday the Senate Judiciary Committee unanimously approved the Combating Online Infringements and Counterfeits Act. Its backers, including Hollywood and the recording industry, are hoping to rush the legislation through Congress during the current “lame duck” session. The legislation empowers the attorney general to draw up a list of Internet domain names he considers to be “dedicated to infringing activities,” and to obtain a variety of court orders designed to block access to these sites for American Internet users.

To understand the proposal, it helps to know a bit about the Domain Name System, or DNS, that is the focus of the bill. The DNS is the Internet’s directory service. Computers on the Internet are assigned (mostly) unique numbers like “72.32.118.3,” but these numbers are not convenient for human users to remember. So instead websites use domain names like “cato.org,” and our computers use the DNS system to automatically translates these names into their corresponding IP addresses. DNS is a distributed system; thousands of Internet Service Providers operate DNS servers for the use of their own customers.

Under COICA, when the attorney general accused a domain name of being “dedicated” to copyright infringement, the courts would issue orders not against the owners of the domain name (who may be overseas) but against domain-name registrars and the operators of DNS servers here in the United States. This means that thousands of systems administrators would be required to maintain a large and constantly-changing list of blacklisted domains. This is a significant and unfair administrative burden on private parties who have absolutely no connection to infringing activities.

The legislation falls far short of constitutional due process requirements. Legal injunctions would be issued upon the attorney general’s mere accusation of “infringing activities.” Not only would the owner of the domain name not have an opportunity to contest the allegations, he would not even have to be notified. And the parties who would receive notice under the legislation—DNS registrars and server administrators—will typically have no knowledge of or connection to the accused domain, which means they would have neither the knowledge or the motivation to dispute unreasonable orders.

This is especially problematic because we are talking about constitutionally-protected speech here. The Supreme Court has long held that prior restraints of speech are unconstitutional. The websites on the government’s blacklist may have a large amount of constitutionally-protected speech on them, in addition to allegedly-infringing material. Not only does COICA not require the government to prove its allegations before a domain name is blocked, it doesn’t require the government to ever prove them.

Earlier this year, my colleague Jim Harper praised Secretary Clinton’s speech making Internet freedom a centerpiece of the Obama administration’s diplomatic agenda. Secretary Clinton was right to lecture foreign governments about the evils of Internet censorship; her former colleagues in the US Senate should listen to her.

Internet Censorship Bill Threatens Free Speech, Rule of Law is a post from Cato @ Liberty - Cato Institute Blog

Unlike Randal O’Toole, I was delighted by Tyler Cowen’s New York Times article on the high cost of free parking. And indeed, if I’m reading O’Toole’s post right, it sounds like Cowen and O’Toole don’t actually disagree on the policy issue: both agree that business owners should be free to decide how much parking to supply.

The debate so far has focused on whether parking mandates push the price of parking below the market rate. But I think the more important effect is on the geography of cities. Parking mandates (and other regulations) preclude developers from catering to people who want to live in pedestrian-friendly neighborhoods.

Parking mandates necessarily mean that every large building is surrounded by a large parking lot. And for someone who doesn’t own a car, a parking lot is just a nuisance: a big, empty space he must walk across to get anywhere. Regulations that effectively require a parking lot around every store and restaurant almost guarantees that walking to them won’t be practical.

As Jane Jacobs pointed out, pedestrian traffic is highly sensitive to density. Even a modest reduction in the density of a neighborhood can have a big effect on pedestrian traffic. And as the number of pedestrians falls, so too will the number of businesses that cater to pedestrians. So it’s probably true, as O’Toole says, that charging for parking spaces wouldn’t dramatically reduce the amount of driving people do. But this is partly because the proliferation of parking lots has made walking impractical. Fewer free parking spaces wouldn’t just raise the price of car ownership; it would make car non-ownership more pleasant and convenient.

Government regulations often have subtle unintended consequences. Parking regulations have been on the books so long that the results have come to seem perfectly natural to us. But free markets are unpredictable. If developers had the freedom to decide how much parking to supply, the results might surprise us.

Free Parking and the Geography of Cities is a post from Cato @ Liberty - Cato Institute Blog

I haven’t been following the debate over Sen. Dodd’s financial overhaul closely enough to have an opinion on the overall package, but Mike Masnick flags one aspect of the legislation that seems really troubling. Bob Litan explains:

Under existing law, startup companies can raise money easily and quickly from “accredited investors” — individuals with substantial wealth or income. There is no need for the companies or the investors to gain approval from any state or regulatory official.

All of this would change if Section 926 of the Dodd bill is included in any final reform legislation. That section would require, for the first time, companies seeking angel investment to make a filing with the Securities and Exchange Commission, which would have 120 days to review it. This would both raise the cost of seeking angels and delay the ability of companies to benefit from their funding.

The negative impact of the SEC filing requirement would be aggravated by the proposed doubling of the net worth or income thresholds required for investors to be “accredited.”

It’s hard to overstate how important a favorable regulatory climate is to the success of startups. Some of the most important startups have been founded by 20-somethings without the resources to hire lawyers or navigate regulatory bureaucracies. And startups frequently find themselves within weeks of insolvency before they have a big breakthrough. Having a crucial round of funding delayed by four months can be the difference between success and failure. If this description of the bill is accurate (and I have no reason to doubt that it is), this provision would be very bad for the future of high-tech innovation in the United States.

Litan Warns Dodd Bill Would Harm Startups is a post from Cato @ Liberty - Cato Institute Blog

I’m saddened to hear of the retirement of Justice John Paul Stevens. Whatever you might say about his jurisprudence in other areas, one place where Justice Stevens really shined was in his defense of high-tech freedom.

Justice Stevens wrote the majority opinion in some of the most important high-tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:

• Free speech: Justice Stevens wrote the majority decision in ACLU v. Reno, the decision that struck down the infamous Communications Decency Act and clearly established that the First Amendment applies to the Internet. In the 13 years since then, the courts have repeatedly beat back attacks on free speech online. For example, Justice Stevens was in the majority in ACLU v. Ashcroft, the 2004 decision that struck down another attempt to censor the Internet in the name of protecting children.
• Copyright: Justice Stevens wrote the majority opinion in the 1984 case of Sony v. Universal, the case in which the Supreme Court upheld the legality of the VCR by a 5-4 vote. The decision, which today is known as the “Betamax decision” after the Sony VCR brand, made possible the explosion of digital media innovation that followed. When the recording industry tried to stop the introduction of the MP3 player in 1997, the Ninth Circuit cited the Betamax precedent in holding that “space shifting” with your MP3 player is permitted under copyright’s fair use doctrine. The iPod as we know it today probably wouldn’t exist if Sony had lost the Betamax case. Justice Stevens also wrote an important dissent in the 2003 decision of Eldred v. Ashcroft, in which he (like the Cato Institute) argued that the Constitution’s “limited times” provision precluded Congress from retroactively extending copyright terms.
• Patents: The explosion of software patents is one of the biggest threats to innovation in the software industry, and Justice Stevens saw this threat coming almost three decades ago. Stevens wrote the majority decision in the 1978 case of Parker v. Flook, which clearly disallowed patents in the software industry. Three years later, Stevens dissented in the 1981 case of Diamond v. Diehr, which allowed a patent on a software-controlled rubber-curing machine. Although the majority decision didn’t explicitly permit patents on software, Stevens warned that the majority’s muddled decision would effectively open the door to software patents. And he has been proven right. In the three decades that followed, the patent-friendly U.S. Court of Appeals for the Federal Circuit has effectively dismantled limits on software patents. And the result has been a disaster, with high-tech firms being forced to spend large sums on litigation rather than innovation.

So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well-deserved retirement.

John Paul Stevens, Defender of High-Tech Freedom is a post from Cato @ Liberty - Cato Institute Blog

As several of my colleagues noted yesterday, the Supreme Court handed down its landmark decision in Citizens United v. FEC. While I regarded the decision as a victory for free speech, a large number of folks on the left — many of whom support free speech in other contexts — were aghast at the decision, arguing that it would vastly enhance the influence of large corporations in the political process.

Part of my disagreement with these guys is that I’m just a free speech zealot. The First Amendment says “Congress shall make no law … abridging the freedom of speech,” and I don’t see how that language can be squared with a statute that limits the distribution of a political documentary. The best you can say, I think, is that limiting corporate influence is a “compelling state interest” sufficient to overcome the First Amendment’s ban on speech abridgment, but that’s just another way of saying that you don’t care about free speech very much.

Second, I think it’s important to remember that “corporations” encompass much more than large, for-profit businesses. They also include a wide variety of non-profit and advocacy groups, including the ACLU, the NRA, and NARAL, that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.

But more fundamentally, I don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech. I think supporters of BCRA misunderstand how corporations wield influence and dramatically overestimate the power of television advertisements. It’s true, of course, that a corporation prepared to spend $1 million on ads criticizing a particular legislator will get that legislator’s attention. But there’s nothing unique about this. It can also get his attention by hiring a lobbying firm that employs a former staffer. It can get his attention by arranging $100,000 in bundled contributions from executives, clients, and friends of the company. It can get his attention by creating astroturf organizations. And there are probably lots of other mechanisms I haven’t thought of.

The key difference between independent expenditures and the other mechanisms is that independent expenditures are the most open and transparent. To run an effective “issue ad,” a corporation has to make an argument that is persuasive to voters. I don’t want to sugar coat the situation; sometimes independent expenditures finance ads that are sleazy and misleading. But given a choice between corporations spending their money on ads about how Senator Smith hates America or spending their money on K Street, I’ll take the ads, because at least voters still get the final decision.

Moreover, I think we’re moving toward a world in which traditional high-dollar advertising campaigns will become increasingly ineffective. One smart liberal compares the post-Citizens United world to a debate in which “you get 10 seconds to make your case. I’ll take an hour.” This description of the world had a certain plausibility when most people got their news from newspapers and television — media characterized by severe, technologically imposed bottlenecks. These bottlenecks meant that those willing to spend more money could get a significantly bigger soapbox.

This is a lot less true online where users have practically unlimited choices. The web is littered with lavishly funded corporate propaganda that gets a fraction of the traffic of grassroots blogs like Boing Boing. When people have lots of choices, they aren’t likely to stick around very long at a site that dishes up corporate talking points. So while deep pockets will always be an asset in politics, they won’t give 21st century corporations the huge advantages they gave to 20th century corporations.

So I’m not thrilled at the idea of Fortune 500 companies spending a ton of money on bogus “issue ads.” But I think the dangers of such ads are frequently exaggerated. I’m far more worried about preserving the right of organizations like the ACLU to spread their message. And I don’t see any plausible way to stop the former without seriously restricting the latter. So I’m glad to see the Supreme Court take the words of the First Amendment — “Congress shall make no law” — literally.

Citizens United and Corporate Money in Politics is a post from Cato @ Liberty - Cato Institute Blog

One of the perennial tropes of the network neutrality debate has been the tendency of the pro-regulation side to paint it as a David-and-Goliath struggle between big, evil corporations and the little guy. Way back in 2006, James Gattuso pointed out how silly this is: in fact, the push for network neutrality is backed by some of the largest companies in Silicon Valley. Julian points out a particularly lazy example of this kind of ad hominem that happens to target Cato: It seems that we’re one of the “15 greatest enemies of net neutrality.” And that along with CEI, Cato “seems to draw its funding from a smattering of every major corporation ever to fund lobbyists.”

As Julian points out, if “VoIP News” had done its homework, it might have discovered that Cato makes its annual report freely available online. Then they they would have noticed that corporate support accounts for about 1 percent of Cato’s budget, and that none of Cato’s corporate funders are major opponents of network neutrality regulation.

Shoddy reporting aside, the “VoIP News” article does actually highlight an important point: the people who built the Internet are deeply split on the issue of regulating the Internet, with eminent computer scientists including Bob Kahn (co-inventor of the Internet’s TCP/IP protocols with Vint Cerf) and Dave Farber (another networking pioneer) on the anti-regulation side. And based on conversations I’ve had here at Princeton, Kahn and Farber are far from the only computer scientists who are skeptical that the FCC is up to the job of regulating the Internet.

In a vacuous appearance on Rachel Maddow last week, blogger Xeni Jardin cited Vint Cerf’s support of regulation and urged viewers to “side with the geeks who actually built the Internet.” She did not, of course, mention that Kahn and Farber, who fit that description as well as Cerf does, are on the other side. “The geeks” are as split on this issue as everyone else.

Update: Tim Carney has an excellent article making a similar point: Internet companies like Google and Amazon, who have lobbied hard for network neutrality, gave overwhelmingly to Obama over McCain in the 2008 election. This doesn’t prove Obama and Chairman Genachowski are insincere in their support for network neutrality. But it does mean we should take both side’s arguments with a grain of salt.

Siding with the Geeks on Network Neutrality is a post from Cato @ Liberty - Cato Institute Blog

Via James Grimmelmann, the Washington Legal Foundation, a group known for its defense of property rights, filed an objection to the Google book deal earlier this month focusing on concerns related to those I raised in my posts earlier this week.

WLF points out that the Supreme Court has mandated that plaintiffs seeking to certify a class must make a diligent effort to notify all affected class members. According to the high court’s Shutts decision, this effort must include—at a minimum—sending a letter to every identifiable member of the class. In this case, this would mean sending a letter to every address in the US Copyright Office’s database of authors. WLF questions whether this was done; the foundation reports that it never received notification related to any of the books for which it holds the copyrights.

Now, it might be objected that this process would be prohibitively expensive. But if the class is so large that it’s impractical to notify all of its members, then the class is certainly too large to expect a judge to verify that the interests of all class members is being served by the settlement. If the class is too large to notify, then it’s too large to certify.

WLF also points out that the sprawling and heterogeneous class of plaintiffs makes it unlikely that the plaintiffs’ lawyers can fairly represent all parties who would be bound by the settlement:

For example, only those class members whose works have already been copied by Google are entitled to cash payments under the Settlement Agreement. Thus, the financial interests of those whose works have been copied diverge from the interests of class members whose works have not been copied. The former have an interest in maximizing cash payments, while the latter would prefer to see a smaller portion of the settlement pot allocated to those cash payments and a larger portion allocated to compensation for copying to be performed by Google in the future.

Another distinction among class members involves orphan works – that is, works whose owners are difficult (if not impossible) to ascertain. The owners of orphan works (who may not even know that they hold any ownership interests) have an obvious interest in ensuring that a large portion of settlement funds is dedicated to identifying the ownership of orphan works. On the other hand, the owners of works whose ownership is readily identifiable have an interest in holding down such search costs. If less money is devoted to such search efforts, a correspondingly greater percentage of settlement funds will be available to provide compensation
to them.

The point here isn’t that the amount allocated to orphan works searches is too high (or too low), or that more (or less) should be allocated to pay for previously-scanned books. The point is that a settlement involving millions of plaintiffs will inevitably enrich some plaintiffs at the expense of others. This isn’t a problem that can be solved by changing the details of the settlement. It’s a problem that can only be solved by limiting the scope of the settlement to parties whose interests are actually represented by the plaintiffs’ attorneys.

Washington Legal Foundation Opposes GBS Deal is a post from Cato @ Liberty - Cato Institute Blog

In response to yesterday’s post making the case against the Google Book Search Deal, I had spirited conversation with Google policy analyst Derek Slater, who helped me understand Google’s perspective on the case and some of the issues I discussed.

He raised a reasonable objection to my claim that “the settlement would give Google carte blanche to use these orphan works without making a serious effort to contact their owners.” He points out that the settlement stipulates that the Book Rights Registry will make an effort to locate orphan works holders and hold funds in escrow for five years to be paid to any orphan work holders who surface. Describing this as “carte blanche” was probably too strong. I think my basic point—that Google won’t be required to conduct the kind of “diligent search” for rightsholders before using a work—is still valid, but I could have made this point more carefully.

He also quibbled with my contention that the settlement would confer permanent competitive advantages on Google. I think I’m on firmer ground here; although the settlement does extend to Google’s competitors some of the advantages Google itself enjoys, the fact remains that Google would receive broad immunity from copyright lawsuits that would not be extended to Google’s competitors.

Much of our conversation focused on how various parties would be helped or harmed by the settlement. Derek explained that approving the settlement would have some worthwhile consequences: the orphan works problem would be mitigated, libraries and universities would get access to a vast database of books online, and consumers would continue to enjoy access the great product that is Google Book Search. He pointed to various provisions that give third parties access to some of the same licensing opportunities available to Google itself. And he may be right, for example, that most orphan works holders would be made better off by the settlement, since the deal would generate extra income that would be escrowed for them should they subsequently surface.

The problem is that I don’t really know how the various class members might be affected by the settlement. And more importantly, I don’t think the judge does either. The settlement is extremely complex, and it will have too many effects on too many parties for anyone to fully evaluate all of them. In the last month, we’ve seen literally dozens of parties file comments with the courts in support or opposition to the settlement. Indeed, the volume of the comment is so large that I suspect the judge is beginning to feel overwhelmed. And there are doubtless many other parties that would object to the settlement but lack the knowledge or legal savvy to submit comments.

The judicial process works well precisely because it typically makes decisions on a case-by-case basis, fitting the circumstances of each case to an evolving body of precedent. This incremental approach tends to produce a body of law that adapts well to changing circumstances while giving all affected parties the opportunity to have their interests represented. Because different cases are heard by different judges, the mistakes of any one judge won’t unduly influence the direction of the law’s evolution. The class mechanism tends to undermine these beneficial properties of our legal system. Rather than many cases being decided by many judges over a period of years, a class action lawsuit asks a single judge to render justice for thousands of plaintiffs whose individual interests can’t possibly all be represented by the attorneys presenting arguments to the judge. Especially when the proposed class is as large and heterogeneous as the plaintiffs in the Google Book Search case, the class action mechanism demands that the judge to balance the competing interests of thousands of different parties, many of whom have divergent interests. No single person could possibly weigh all the competing arguments in a systematic fashion.

Fortunately, we have an institution with the infrastructure and accountability to deal with precisely this kind of situation: the legislative branch. I think many people find the Google Book Search settlement appealing precisely because it provides an opportunity to bypass the stalemate on Capitol Hill and achieve some de facto changes in the copyright regime that lots of people (including me) regard as desirable. But this perspective misunderstands why the legislative process is so slow and cumbersome. The problem isn’t that Congress is taking a simple problem and making it more complicated than it needs to be. The problem is that orphan works reform is a genuinely difficult problem that will affect the rights of many different people. Achieving consensus is genuinely difficult, we want a slow, sprawling, messy process to make sure everyone gets a fair hearing. The Google Book Search deal wouldn’t really resolve the complex trade-offs Congress is wrestling with, it would simply put the judiciary’s thumb on the scales in favor of those who happen to have the judges ear thanks to the peculiar structure of this lawsuit. This is undoubtedly a faster way to deal with the orphan works problem, but I don’t think it’s a better one.

Google Book Search, Class Actions and the Separation of Powers is a post from Cato @ Liberty - Cato Institute Blog

Five years ago, Google began scanning millions of books for inclusion in what eventually became Google Book Search. Google carefully designed the service to stay within the boundaries of copyright’s fair use provisions, at least as Google interpreted them. Still, some authors and publishers objected, and in 2005 they filed a lawsuit accusing Google of copyright infringement. The lawsuit dragged on for more than three years. Finally, in 2008, the parties announced a settlement of the lawsuit. Its text runs for 140 pages, not counting a secret termination clause available only to Google and its adversaries. The deadline for comments on the settlement was earlier this month, and on October 7 a federal judge must decide whether to approve or reject the settlement.

I was (and still am) firmly on Google’s side on the copyright claims at issue in the lawsuit. But the proposed settlement is another matter. The parties like to describe the agreement as a private agreement settling a legal dispute. But I agree with Librarian of Congress Marybeth Peters, who surprised almost everyone on Thursday when, testifying before Congress, she came out swinging against the agreement:

We realized that the settlement was not really a settlement at all, in as much as settlements resolve acts that have happened in the past and were at issue in the underlying infringement suits. Instead, the so-called settlement would create mechanisms by which Google could continue to scan with impunity, well into the future, and to our great surprise, create yet additional commercial products without the prior consent of rights holders. For example, the settlement allows Google to reproduce, display and distribute the books of copyright owners without prior consent, provided Google and the plaintiffs deem the works to be “out-of-print” through a definition negotiated by them for purposes of the settlement documents. Although Google is a commercial entity, acting for a primary purpose of commercial gain, the settlement absolves Google of the need to search for the rights holders or obtain their prior consent and provides a complete release from liability. In contrast to the scanning and snippets originally at issue, none of these new acts could be reasonably alleged to be fair use.

In the view of the Copyright Office, the settlement proposed by the parties would encroach on responsibility for copyright policy that traditionally has been the domain of Congress. The settlement is not merely a compromise of existing claims, or an agreement to compensate past copying and snippet display. Rather, it could affect the exclusive rights of millions of copyright owners, in the United States and abroad, with respect to their abilities to control new products and new markets, for years and years to come. We are greatly concerned by the parties’ end run around legislative process and prerogatives, and we submit that this Committee should be equally concerned.

The fundamental problem with the settlement is its audacious use of class action law. As my former colleague Mark Moller has argued, the aggressive use of class action law raises fundamental issues of fairness, due process, and the separation of powers. Rather than dozens of judges hearing individual cases and reaching judgments based on individual circumstances, class action law often asks a single judge to render justice on behalf of thousands of plaintiffs in a single decision. This arrangement opens the door to a whole host of potential problems. A single judge unlikely to have the knowledge required to render justice in thousands of individual cases simultaneously. And there’s a real danger that a nominally judicial proceeding will take on a fundamentally legislative character, reshaping the rights of thousands of people whose interests are not adequately represented by any of the parties before the judge.

This danger is especially acute in the Google Book Search case because of the incredibly broad scope of the class the plaintiffs purport to represent: all authors of books still under copyright in the United States. The settlement class doesn’t just include authors and publishers of still-in-print works, who are relatively easy to contact and can opt out of the settlement if they don’t like its terms. It also includes the copyright holders for millions of “orphan works” — works that are in copyright and whose authors cannot be located. These copyright holders are, by definition, difficult to find. The settlement effectively expropriates these absent parties for the benefit of Google and the large publishers leading the lawsuit.

The usurpation of the legislative function is especially clear in the case of orphan works because Congress has been actively considering legislation to deal with the orphan works problem. I have written in favor of an “orphan works” defense to copyright infringement. The leading orphan works proposals have two key features: they require prospective users of orphan works to make a good-faith effort to find rights-holders before using the works. And they are competitively neutral — everyone would have equal opportunity to use orphan works under the conditions set forth in the legislation.

The Book Search deal has neither characteristic. Using the legal fiction that the plaintiffs represent the interests of millions of absent copyright holders, the settlement would give Google carte blanch to use these orphan works without making a serious effort to contact their owners. This deprives some copyright holders of royalties to which they might otherwise be entitled. And it gives Google a permanent competitive advantage by giving Google an immunity to litigation that would not be available to competitors if they entered the same market. Not surprisingly, Google’s leading competitors, including Microsoft, Yahoo! and Amazon.com, have all urged the judge to reject the agreement.

Our system of government is based on the principle of the separation of powers. Congress, not the judicial branch, is responsible for making broad changes to rules of copyright. The Google Book Search settlement, if approved, would use the legal fiction of the class action lawsuit to re-write copyright law as it applies to the online book market. While the settlement includes some laudable provisions, it’s more important that the judge respect the separation of powers and reject the settlement.

The Libertarian Case against the Google Book Search Deal is a post from Cato @ Liberty - Cato Institute Blog

The Church Committee was a post-Watergate congressional committee that investigated allegations of lawbreaking by the executive branch, including the CIA and FBI. The committee’s report was incredibly important in helping the public understand the depth and breadth of Cold War lawlessness during the previous three decades. When Cato asked me to pen the chapter on electronic surveillance in this year’s edition of the Cato Handbook on Policy, I included a recommendation that Congress should launch a modern-day successor to the Church Committee.

In the last few months, I’ve been pleased to see that people smarter than me have been having the same idea. The latest is the Nation‘s Chris Hayes, who has a great cover story calling on Congress to launch a wide-ranging investigation of executive branch lawbreaking.

We have lots of evidence that members of the Bush administration broke laws related to torture, wiretapping, and the Patriot Act. But because these reports are based on press reports and heavily-redacted Freedom of Information Act requests, we don’t know the full nature and extent of these crimes. Given that Barack Obama has fallen short of the transparency pledges he made during the campaign, Congress is likely the only institution in the United States with the resources and the political clout to produce a complete accounting of the civil liberties abuses of the last three decades.

I think the most important point Chris makes is this one:

Since the committee began in the wake of Nixon’s resignation and revelations about his deceptions, abuses and sociopathic pursuit of grudges, Church and many Democrats had every reason to believe they would be chiefly unmasking the full depths of Nixon’s perfidy. Quickly, however, it became clear that Nixon was a difference in degree rather than a difference in kind. Kennedy and Johnson had, with J. Edgar Hoover, put in place many of the illegal policies and programs. Secret documents obtained by the committee even revealed that the sainted FDR had ordered IRS audits of his political enemies. Republicans on the committee, then, had as much incentive to dig up the truth as did their Democratic counterparts.

As historian Kathy Olmsted argues in her book Challenging the Secret Government, Church was never quite able to part with this conception of good Democrats/bad Republicans. Confronted with misdeeds under Kennedy and Johnson, he chose to view the CIA as a rogue agency, as opposed to one executing the president’s wishes. This characterization became the fulcrum of debate within the committee. At one point Church referred to the CIA as a “rogue elephant,” causing a media firestorm. But the final committee report shows that to the degree the agency and other parts of the secret government were operating with limited control from the White House, it was by design. Walter Mondale came around to the view that the problem wasn’t the agencies themselves but the accretion of secret executive power: “the grant of powers to the CIA and to these other agencies,” he said during a committee hearing, “is, above all, a grant of power to the president.”

A contemporary Church Committee would do well to follow Mondale’s approach and not Church’s. It must comprehensively evaluate the secret government, its activities and its relationship to Congress stretching back through several decades of Democratic and Republican administrations. Such a broad scope would insulate the committee from charges that it was simply pursuing a partisan vendetta against a discredited Republican administration, but it is also necessary to understand the systemic problems and necessary reforms.

This is a case where political expedience and justice point in the same direction. A thorough investigation will undoubtedly uncover numerous examples of abuses of power under the Bush administration. But Bill Clinton was hardly a civil libertarian himself. Thoroughly investigating abuses of power under Clinton (and under Reagan and Bush I) will serve two important purposes. First, of course, it will help to deflect spurious charges that the investigation is a partisan witchhunt. But more importantly, it will likely underscore the point that abuses of power are a bipartisan phenomenon. The problem is not just that George W. Bush was too secretive or power-hungry (although of course he was). The problem is that presidents are almost always secretive and power-hungry, and our system of government needs better checks and balances to ensure that presidential attempts to evade accountability do not succeed. The abuses of the Bush/Cheney years may provide the political momentum we need to fix the problem. But the problem is bigger than any one administration.

We Need a New Church Committee is a post from Cato @ Liberty - Cato Institute Blog

Reading the New York Times‘s coverage of a Senate committee’s recent vote on health care legislation, I was struck by the following statement from Sen. Dodd:

If you don’t have health insurance, this bill is for you,” said Senator Christopher J. Dodd, Democrat of Connecticut, who presided over more than three weeks of grueling committee sessions. “It stops insurance companies from denying coverage based on pre-existing conditions. It guarantees that you’ll be able to find an insurance plan that works for you, including a public health insurance option if you want it.”

The bill would also help people who have insurance, Mr. Dodd said, because “it eliminates annual and lifetime caps on coverage and ensures that your out-of-pocket costs will never exceed your ability to pay.”

A basic understanding of economics should tell you this can’t be right. The federal government and the insurance industry have limited resources; the demand for health care is potentially unlimited. Therefore, no conceivable legislation can ensure that the demand for health care will never exceed the resources available to pay for it. All legislation can do is to shift who controls the allocation of scarce health care dollars—in this case away from patients and insurance companies and toward the federal government. Reasonable people can disagree about whether that’s an improvement, but it’s disingenuous to pretend that any legislation could “eliminate” caps on coverage or “ensure” that health care wants will never outstrip our ability to pay for them.

Congress Abolishes Health Care Scarcity? is a post from Cato @ Liberty - Cato Institute Blog

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.

Indeed, it’s obvious that Friedman himself understands this on some level. You’ll notice that right now, he’s not spending his time at a dry dock constructing an actual seastead. Instead, he’s using the same technologies he derides in other contexts — giving talks, writing essays, giving media interviews — to spread a set of ideas that he thinks will change the world. Getting seasteading to actually happen is a collective action problem. The tools he needs to overcome that collective action problem are precisely the “folk activism” tactics that he derides in other contexts. I think he’s largely right that national elections are not an arena in which “folk activism” has much impact, but there are clearly circumstances in which those tactics do work, and blanket dismissal of those tactics is therefore misguided.

I think Friedman overestimates the extent to which successful seasteads would achieve revolutionary, rather than merely incremental, changes in the amount of freedom in the world. Friedman’s vision for the future is a floating Hong Kong surrounded by a billion-dollar breakwater. He’s not going to be satisfied with a bunch of glorified houseboats. So the society he hopes to build would be a complex system with many of the anti-libertarian tendencies that afflict today’s cities. He’s right, of course, that the power of that city’s leaders will be limited by the greater ease of exit. But a large fraction of the inhabitants of a floating Hong Kong would still be tied down by professional, family, and social ties. And as a consequence, the political leaders of such a society would still have considerable political power.

Therefore, large, permanent floating cities will only remain free if they’re built with good ideological infrastructure: with institutions and public attitudes conducive to liberty. That means that the efforts of libertarian public policy scholars is complementary to Friedman’s own organizational and engineering efforts. Their efforts can help in two ways. First, they can help to guide the founders of new seastead cities in making institutional design decisions that will maximize the likelihood that the society will remain free over the long run. Second and more importantly, the continued growth of the libertarian movement provides the seasteading movement with its most important input: “customers” who will instinctively understand the appeal of the seasteading project. Self-identified libertarians are likely to not only be the first people willing to join seasteads, but also the strongest advocates of preserving liberty within floating cities once they become firmly established.

It seems counterproductive for Friedman to spend his intellectual energies denigrating the efforts of those of us who have chosen to use communications technologies, rather than maritime technologies, to advance liberty. I predict that the technologies of persuasion we use at the Cato Institute will prove to be more important for the long-run success of liberty than the maritime technologies Friedman hopes to develop. But I’m glad that Friedman is experimenting with a different approach, and I would be thrilled to be proven wrong. If the seasteading movement does prove successful, I think it’s success will have been greatly accelerated by the existence of a large and enthusiastic audience that has been created and nurtured by the “folk activism” of the broader libertarian movement.

Seasteading and Other Technologies for Liberty is a post from Cato @ Liberty - Cato Institute Blog

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.

In particular, if the policy option on the table is to reduce inequality by redistributing wealth from rich people to the government, there’s absolutely no reason to think that the federal government could support these kinds of projects with anything like the degree of success that these private actors have done. Congress has plenty of cash, but members of Congress and their staff haven’t the faintest clue what it takes to build an operating system. Moreover, they wouldn’t even know how to tell a competent operating system designer from an incompetent one, so if they sought outside expertise they’d likely get bad advice.

I think it’s a little bit surprising that Matt would endorse Quiggin’s argument about working hours. If you read Matt’s blog, it’s obvious that he works a lot more than the 1824 hours/year national average. I suspect that Matt works so much in part because his job involves goofing off on the Internet and because he’s excited about the mission of his non-profit employer. Moreover, I’d wager that a large fraction of Matt’s readers read his blog at their jobs while they’re theoretically “on the clock.” In other words, one of the most important but unmeasured ways that our standard of living has improved in recent decades is that more and more of us are blessed with white collar jobs with intellectually-engaging work, pleasant working conditions, and the flexibility to spend time at the office doing things like reading blogs.

Probably the best illustration of these trends is Google. Google is, of course, a fabulously profitable company. It’s also a company that’s famous for the long hours put in by its employees—one reason they offer their employees free food and other perks is so they’ll be less likely to go home in the evenings. At the same time, Google has a policy of “20 percent time” that officially encourages employees to spend company time working on personal projects that may or may not contribute to the company’s bottom line. And Google is also one of the most enthusiastic users and supporters of free software, employing a number of key free software developers such as Guido Van Rossum and Jeremy Allison.

There is, in other words, no particular reason to think that the growth of the non-monetary sector of the economy can or should lead to reduced working hours, on average. Rather than using higher wages or shorter working hours to attract employees, firms may increasingly compete for workers by giving workers more interesting work and more on-the-job flexibility. Indeed, it seems likely that an increasing fraction of the time the Labor Department considers as time spent “working” actually consists of employees reading blogs, editing Wikipedia, and otherwise contributing to the richness of the non-commercial sector of the Internet.

Work, Social Production, and Inequality is a post from Cato @ Liberty - Cato Institute Blog

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.

Holder Takes a Small Step toward State Secrets Reform is a post from Cato @ Liberty - Cato Institute Blog

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.

NSA Spying on Journalists: We Need a New Church Committee is a post from Cato @ Liberty - Cato Institute Blog