Wednesday Links
- Senate Judiciary Committee abandons hope of bringing any real change to the Patriot Act. Julian Sanchez in The Nation: “The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place.”
- Cognitive Dissonance: New poll shows rising support for a so-called public option in health care, even as the public continues to oppose greater government control over the health care system.
- It has been tried before: Why increasing the size of government won’t work.
- Podcast: The real problem with American health care: You are not the customer. More here.
PATRIOT Powers: Roving Wiretaps
Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers. In this edition: Section 206, roving wiretap authority.
The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Weekend Links
- Bush-era surveillance powers are set to expire at the end of this year. Julian Sanchez explores the efforts to revise the PATRIOT Act.
- More on the medical professionals who aided in acts of torture.
- Doug Bandow: Ireland is holding a second referendum on the Lisbon Treaty on Friday. If the Irish say yes, the European Union will be stronger. But will anyone notice?
- The aftermath of “Cash for Clunkers” hits automakers. Looks like it just might have been the “dumbest program ever” after all.
- Podcast: “Three Felonies a Day“
Is This Intervention Necessary?
So asks the Washington Post in a cogent editorial about FCC Chairman Jules Genachowski’s speech proposing to regulate the terms on which broadband service is provided. (More from TLJ, Julian Sanchez, and me.) The WaPo piece nicely dismantles the few incidents and arguments that underlie Genachowski’s call for regulation.
As the debate about “‘net neutrality” regulation continues, I imagine it will move from principled arguments, such as whether the government should control communications infrastructure, to practical ones: Will limitations on ISPs’ ability to manage their networks cause Internet brown-outs and failures? (This is what Comcast was trying to avoid when it ham-handedly degraded the use of the BitTorrent protocol on its network.) Will regulation bar ISPs from shifting costs to heavy users, cause individual consumers to pay more, and hasten a move from all-you-can-eat to metered Internet service? We’ll have much to discuss.
Preemptive Regulation of the Internet
Julian Sanchez has already done a fine job of assessing FCC Chairman Julius Genachowski’s speech announcing his plan for federal regulation of the Internet. There was nothing really new in it. No substantial problems justifying regulation have emerged, and—Genachowski’s claims to modest aims aside—any ‘net neutrality regulation is likely to be a substantive morass. Says Julian:
[I]t absolutely reeks of the sort of ad hoc ‘I know it when I see it’ standard that leaves telecoms wondering whether some innovative practice will bring down the Wrath of Comms only after resources have been sunk into rolling it out.”
If the FCC goes ahead with regulating the Internet, the public will get a good look at what closed systems are really like. The FCC’s retrograde “Electronic Comment Filing System” doesn’t even allow full-text searches of submissions. This is but one failing the Internet’s engineers all over the country—and not just in big telcos—will run into dealing with the FCC. It’s laughable that this outdated telecommunications bureaucracy is trying to take over the Internet.
A complex array of network protocols and business processes make up “the Internet.” The Internet’s end-to-end architecture is good engineering because it is naturally open, flexible, and conducive to communications freedom. The Internet empowers consumers to fend for themselves, such as in their dealings with Internet Service Providers. When Comcast degraded the Bitorrent protocol, it took just weeks for consumer pushback to end the practice. The FCC opened an inquiry long after the matter was settled.
But some politicians and the FCC’s lawyers think their slow-moving, technologically unsophisticated bureaucracy knows better than consumers and technologists how to run the Internet. The FCC’s “net neutrality” plans are nothing more than public utility regulation for broadband. With federal regulation, your online experience will be a little more like dealing with the water company or the electric company and a little less like . . . well, the Internet!
As Julian said, Tim Lee’s is the definitive paper. The Internet is far more durable than regulators and advocates imagine. And regulators are far less capable of neutrally arbitrating what’s in the public interests than they imagine either.
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