January 2012

Network owners and content providers are bumping heads again. Telecommunications giant AT&T filed comments with the FCC a couple of weeks ago urging the FCC to exclude real-time gaming (which generally requires connections with minimal “jitter”) from its definition of “broadband service” (as part of the “National Broadband Plan” laid out in the stimulus package). AT&T argues that such applications aren’t fundamental to the definition of broadband because they aren’t necessary to “participate in the internet economy.” Ars Technica’s Matt Lasar sums up the argument between telcos and the content industry:

AT&T did acknowledge that the capacity to play games should be included in a larger definition of broadband. But at present, the concept “should take the form of a baseline definition of the capabilities needed to support the applications and services Americans must access to participate in the Internet economy,” the company wrote, “to learn, train for jobs, and work online.” AT&T’s “minimal set of applications” includes the ability to use email, instant messaging, and basic Web surfing.

{. . .}

All this has become part of the broadband definitional debate. And there’s a noticeable divide here between the telcos and cable companies on one side, and content providers and users on the other. The latter camp very much wants the FCC to embrace an “application-based approach” to the broadband definition question, as the FCC put it in its request for definitional comments.

Clearly, having an application-based definition of “broadband” would favor content creators and place the burden to deliver high-bandwidth services on the telcos. On the other hand, defining broadband using technical specifications would 1) leave the content industry out of consideration entirely, and 2) lead to arguments about which specifications to formally adopt (i.e. certain bandwidth limits would favor, for example, cable over satellite service). Either way, setting a national standard would change the rules of the game, and reduce companies’ ability and incentive to innovate.

It should shock no one that business interests are arguing over who should win out, now that the government has decided to interfere and create an unnecessary national policy. This is a textbook example of what happens when the government intervenes in a business it has, well, no business in. The network owners and the content industry have been evolving together since the Internet’s inception. Now that the feds want to throw billions of taxpayer dollars towards a national broadband policy, all the players are scrambling to carve out their stake in the deal.

Consumers have been buying a lot of tires made in China lately. Naturally, U.S.-based tire manufacturers are upset at their competitors’ success. Fortunately, there are two ways for the aggrieved American firms to ease their troubled minds:

1: Make better tires for less money. Give consumers a reason to buy American tires rather than Chinese. Compete, in other words.

2: Don’t compete. Too much hard work. Instead, persuade some politicians to place a 35 percent protective tariff on competitors’ tires. Price them out of the market. Then keep making the same old tires that people don’t want. If the tariff is large enough, you may even be able to raise your prices, even without raising quality.

This is a choice between raising the bar and lowering it. Unfortunately, U.S. tire firms and allied politicians have chosen to lower it. China, by putting up its own barriers to retaliate, is lowering the bar even further.

The really audacious part is that tire tariff supporters think they are really helping the economy. Raising that bar. Saving American jobs!

There is something very unsettling about the notion that an American job is intrinsically more valuable than a Chinese job. We are all human beings, are we not?

This is an ugly, ugly mindset. And it is one that politicians and tire companies have explicitly adopted. The burden is on them to explain why they think people who live in one country are more deserving of economic opportunity than people who live in another.

Norman Borlaug, the scientist who saved a billion lives by fathering the Green Revolution, died Saturday at the age of 95. His work in developing new crops to feed the world’s hungry in places like India earned him a Nobel Peace Prize, a Presidential Medal of Freedom, and a Congressional Gold Medal, even though his work was seldom mentioned by the press. Ronald Bailey notes that Borlaug “saved more human lives than any other” person in history.

Borlaug was attacked by some on the extreme left, such as a writer in The Nation magazine, because he was a staunch defender of new agricultural technologies and genetic engineering to feed the Earth’s burgeoning population.

Speaking of wars on science: a new toy “safety” law, the CPSIA, that is based on junk science, has wiped out countless small toy companies, while giving a special “exemption” to an “industry giant” that imported tainted Chinese toys, and doing nothing to make children safer.

This perverse new law has resulted in tens of thousands of harmless children’s books being removed from the shelves and thrown in the trash (the illustrations in children’s books sometimes had tiny trace quantities of lead, too small to harm any children, who don’t eat books).  It also resulted in thousands of trunkloads of harmless children’s clothing and toys being trashed, and bankrupted many second-hand clothing stores for poor kids.

In the Wall Street Journal today, legal commentator Walter Olson describes some of the havoc the new law has created. The Obama administration has turned a deaf ear to pleas for reform by critics of the new law, perhaps because a key provision of the CPSIA “was added by then-Sen. Barack Obama.” All but 3 Congressmen voted in favor of this foolish law, but some in Congress now regret their votes to pass it.  Most Republicans, and a tiny handful of Democrats, now want to change the law to make it less burdensome and discriminatory, but to no avail.  Congressional leaders like Henry Waxman (D-Calif.) are refusing to make any changes to this perverse law.

Some commenters have noted President Obama’s game-bashing comments in his recent speeches. Whether he’s telling the nation’s school children to put down the controller and read a book, or chiding parents to turn off the console and get the kids in bed earlier, Obama points to indulgence in video games as a serious problem among the nation’s kids.

Don’t video games get enough unwarranted blame already? Should Sony, Microsoft, and Nintendo be held responsible for a few kids’ abysmal test scores? There are plenty of activities that kids do instead of homework: playing outside, sports, Barbies and GI Joes, cartoons, garage bands, or skateboarding, to name a few. Should we incite moral panic over SpongeBob Squarepants, or the YMCA and its skate parks?

Even if some kids do spend a lot of time gaming, the quality and variety of the games they play has come a long way. When I was a young gamer, most console games fell into four categories: pro sports, adventure, racing, or violent shooting sprees. Very few “7th Guest” -type of games were around that could give a young brain a tough work-out. Today, kids have many more choices, including many educational options. In fact, now that the technology is sufficiently advanced, many video games can double as exercise (Dance Dance Revolution, Sony’s EyeToy games, the Wii Fit, etc.). Citizen Gamer columnist Wenda Benedetti remarks that not all games are a bane to education:

“Meanwhile in the here and now, there a plethora of “edutainment” games out there — games that use today’s technology to stuff our children’s head full of smarts. But if those kinds of titles tend to inspire jaded eye-rolls from savvy young game enthusiasts, you don’t have to look far to find mainstream video games that encourage players to boot their brains into high gear. Though they may seem like frivolous fun, these games could qualify as some seriously studious homework.”

Certainly, parents should ensure their children attend to their school work, and they should limit the amount of time their kids spend on potentially-unhealthy activities. However, concern over video games should be kept in perspective. Since its infancy, the video game industry has taken flack for making kids (and adults) lazy, unsociable, overweight, or just plain stupid. But consider this: the first generation of gamers has reached adulthood, and our country isn’t exactly falling by the wayside. The generation that grew up with Mario, Link, and Sonic went on to graduate from college in large numbers with computer and electronic engineering degrees. Those kids grew up to help build the new economy and the high-tech, connected society that we live in today.

Host Richard Morrison and co-host Jeremy Lott welcome special guests Lee Doren and Greg Conko to Episode 60 of the LibertyWeek podcast. We start with a recap of the 9/12 D.C. Tax Protest, look into union rules that hurt minority contractors and consider the alleged ethics violations of former California Assemblyman Mike Duvall. We then turn to Greg Conko for his thoughts on free market healthcare reform and finish with a tribute to The Greatest Man Who Ever Lived, Norman Borlaug (1914-2009).

He may have saved a billion people from starvation, but, if you asked a random sample of reasonably well educated Americans who Norman Borlaug was, they’d probably answer, “Norman who?”

I’ll tell you Norman who.  His biographer, Leon Hesser, called him the Man Who Fed the World.  Science reporter Gregg Easterbrook called him the Forgotten Benefactor of Humanity. I’ve called him a Modern Prometheus.  And comedians Penn and Teller said (well, mostly Penn said) that he was the greatest human being who ever lived.

Norman Borlaug was an American agricultural scientist and plant breeder whose work sparked what is now known as the Green Revolution.  He was recognized with countless scientific and humanitarian awards, including, in 1970, the Nobel Peace Prize. Quite tragically, he died of cancer yesterday, at the age of 95.

Borlaug was born on a small farm in Cresco, Iowa in 1914 and developed an interest in applying science and technology to agriculture during the Depression-era dustbowl that desiccated the Great Plains in the first half of the 1930s.  He went off to study forestry and plant pathology — and compete on the wrestling team — at the University of Minnesota in 1933.  He eventually would complete a Master’s and Ph.D. at the U of M, after brief stints with the U.S. Forest Service that periodically interrupted his studies.  After completing his Ph.D. in 1942, Borlaug worked for two years at DuPont, contributing scientific research for the war effort.

In 1944, Borlaug got the opportunity that would come to define the rest of his life, joining a Cooperative Wheat Research Production Program co-funded by the Rockefeller and Ford Foundations and the Mexican government.  At the time, corn still made up the vast majority of Mexico’s cereal production, even though wheat had been introduced hundreds of years earlier by Spanish settlers.  The problem was that wheat varieties adapted to Mexican soil and climatic conditions were susceptible to numerous problematic diseases.  Borlaug’s team bred various domestic and foreign wheat varieties together to generate cultivars that would resist most of these diseases, then crossed those long-stem wheat varieties with a semi-dwarf wheat variety from Japan in order to produce an adapted variety with stems that were short and strong enough to hold up the better producing seed heads.

Perhaps Borlaug’s biggest contribution was the development of an accelerated breeding schedule he called “shuttle breeding,” which let him improve the genetic composition of his wheat lines twice as quickly as with normal breeding.  Despite opposition from fellow plant breeders who insisted this couldn’t be done, Borlaug and his team would grow one generation of plants at the higher elevations around Mexico City during the summer, and then grow a second generation at sea level some 700 miles to the north near the Sonoran coast during the winter.  Not only did shuttle breeding work, by doubling the progress of Borlaug’s breeding schedule, it also had the fortunate, but unintended side effect of producing wheat strains that were not sensitive the amount of light received each day, as nearly all other plant breeds are.

In just four years, Mexico went from importing almost all the wheat its people consumed to being self-sufficient in wheat production. Borlaug continued working in Mexico, but by the 1960s, his reputation had spread around the world.  He was called on first to travel to India and Pakistan to help improve wheat production there. And after a stunning success, he went on to the Philippines and China, where his innovative breeding methods were used to raise yields in the rice varieties consumed by roughly half the world’s population.  By the 1980s, Borlaug teamed up with Japanese billionaire philanthropist Ryoichi Sasakawa to try to spread the Green Revolution to Africa.  Wherever he went, the combination of better plant varieties, along with agricultural chemicals such as anhydrous ammonia and other inorganic fertilizers, and synthetic herbicides and insecticides, have helped to more than triple wheat yields in less developed countries since the 1950s.

None of this was easy, however. Borlaug and his colleagues met severe resistance from local seed breeders and farmers set in their ways, as well as national and regional governments who didn’t want to see others succeed where their own programs had failed.  Borlaug wrote in the Foreword to my 2004 book, The Frankenfood Myth, that, “As we created what became known as the ‘Green Revolution,’ we confronted bureaucratic chaos, resistance from local seed breeders, and centuries of farmers’ customs, habits, and superstitions. … At the time, Forrest Frank Hill, a Ford Foundation vice president, told me, ‘Enjoy this now, because nothing like it will ever happen to you again. Eventually, the naysayers and the bureaucrats will choke you to death, and you won’t be able to get permission for more of these efforts.” Indeed, bureaucratic hassles became much worse, he wrote. ”If our varieties had been subjected to the kinds of regulatory strictures and requirements that are now being inflicted upon the new biotechnology, they would never have become available.”

But, perhaps no critics were tougher on Borlaug than western environmentalists.  As Borlaug moved from Mexico to Asia, doomsayer Paul Ehrlich claimed that Borlaug “doesn’t have any idea of the magnitude of the problems in food production.” He said, “You aren’t going to make any major impact on producing the food that’s needed.” And Ehrlich wasn’t alone.  Today, much of the political left still sees the Green Revolution as a failure, despite it’s obvious successes, because it promoted technological tweaks to address the deficiencies of nature, weakened socialist agrarian reform movements of the 1960s and 1970s by improving rural productivity, and permitted the survival of hundreds of millions — perhaps billions — of lives who just end up despoiling the environment.

This failure of the political left, particularly the environmental movement, to acknowledge the usefulness of innovative agricultural technologies led Borlaug to eventually reject the movement he once embraced.  Although he was largely apolitical, one lamentable aspect of Borlaug’s politics was his early belief in the necessity of global population control. But, by the 1990s, Borlaug had a change of heart.  He also became one of the biggest boosters of food biotechnology and one of the biggest critics of those who believe organic agriculture is the only sustainable option. On the 30th anniversary of his Nobel Prize, he said “I now say that the world has the technology — either available or well advanced in the research pipeline — to feed on a sustainable basis a population of 10 billion people. The more pertinent question today is whether farmers and ranchers will be permitted to use this new technology? While the affluent nations can certainly afford to adopt ultra low-risk positions, and pay more for food produced by the so-called ‘organic’ methods, the one billion chronically undernourished people of the low income, food-deficit nations cannot.”

I came to know Norm — and he always insisted that everyone call him Norm — about ten years ago.  He was an energetic, inquisitive, and thoughtful man, and he always spoke with great passion about his own work and that of the countless others whose innovative research he has helped to spread around the world. I had the honor of spending the better part of a week hosting Norm in Washington in May 2004, when CEI arranged for him to give a “newsmaker” speech at the National Press Club.  And, on the occasion of CEI’s 20th Anniversary, we presented him with our first ever Prometheus Award for Human Achievement. Despite being in the presence of one of my very few heroes, I was struck most by Norm’s sheer humility.  I thought it delightful, for example, that, even at 90 years old, the former wrestler still insisted on carrying his own luggage — and Norm seemed like he’d be willing to deck a guy, however well-meaning, for insinuating that he might be so frail as to need his host to carry it for him.

His beloved wife Margaret, an accomplished basketball star in her younger years, died just over two years ago, also at the age of 95. As I wrote then, “It’s not every spouse who will gladly pick up her family and move it to a foreign land, where they will live in modest conditions. [Borlaug had rejected an offer by DuPont to double his salary if he would pass up the position in Mexico.] But, Margaret was a strong and wise woman, and she gladly moved with Norm and their children to Mexico, where they dedicated their lives to helping others by promoting science, technology, and common sense. Her contributions were thus as important to the Green Revolution as almost any other person’s. So, anyone who values freedom and progress owes both Norm and Margaret a great deal of thanks.”

Today, reflecting on Norm’s death, I am reminded of Winston Churchill’s words following the Battle of Britain: “Never was so much owed by so many to so few.”  Indeed, never was so much owed by so many to a single man.  Norman Borlaug will be sorely missed.

In the aftermath of 9/11, Congress foolishly shifted airline security screening to the inept Transportation Security Administration (TSA), which has failed to detect explosive ingredients and fake bombs, in performance tests.

Now the Obama Administration is making matters even worse by undermining both airline security and railroad safety. A study found that the TSA is more than twice as likely to fail to detect a bomb as the private security firms it replaced. And TSA’s failure rate is three or four times as high as the few remaining private firms still allowed to handle airline security.

In tests, TSA failed to detect fake bombs 60 percent of the time at Chicago’s O’Hare airport, and 75 percent of the time in Los Angeles. Yet the Obama administration plans to make TSA even more bureaucratic by introducing collective bargaining, which will make it even harder to get rid of ineffective employees.

Rather than take over airline security screening, the federal government should have stepped up testing of the private companies that performed it, to weed out bad companies. President Bush initially objected to Congressional demands for a federal takeover, but knuckled under for political reasons.  Ironically, even in European countries run by Socialist parties, airline security and screening is generally in the hands of private companies, which are are usually more diligent, innovative, and efficient, as well as less bureaucratic.

The Obama administration is also undermining the security of railroad passengers by gutting an expert, highly-rated, anti-terror agency at Amtrak, which Amtrak’s unions hate, because it is not unionized.  Political cronyism also appears to be playing a role in the gutting of Amtrak’s Office of Security Strategy and Special Operations (OSSSO). Ultimately, OSSSO’s “highly-specialized officers” will likely be replaced by unionized employees with ”alarmingly low pass rates” in “basic” classes.

ACORN, the group that helped launch Barack Obama’s career as a community organizer was recently caught in undercover stings advising about how to set up a brothel that would bring “minor girls into the country for purposes of prostitution,” reports the Washington Post. (ACORN receives taxpayer money despite a long history of financial fraud and vote fraud).

Now, Patricia Coats Jessamy, the Baltimore City State’s Attorney, is trying to silence those who have broadcast the video footage, relying on a Maryland law that violates the First Amendment. She is not interested in prosecuting the crimes recorded on the video. Instead, Jessamy, an ardent Obama supporter, wants to prosecute the makers of the undercover video — and those citizens, bloggers, and journalists who broadcast it or “use” or “disclose its content.”

In her public statement, she complains that the video may “possibly have been obtained in violation of Maryland Law . . . Article §10-402, which requires two party consent. If it is determined that the audio portion now being heard on YouTube was illegally obtained, it is also illegal under Maryland Law to willfully use or willfully disclose the content of said audio. The penalty for the unlawful interception, disclosure or use of it is a felony punishable up to 5 years.” (Similar laws in Massachusetts have been used to shield kidnappers calling in ransom demands, and police abusing motorists!).

It is obvious to me as an attorney that Patricia Jessamy is  threatening a selective prosecution.  The First Amendment generally overrides state privacy laws insofar as they would prevent disclosure of public corruption and discussion of matters of public concern, as the Supreme Court has made clear in cases like Florida Star v. B.J.F. (1989), Bartnicki v. Vopper (2001), and Time v. Hill (1969).

But as the Examiner notes, “Maryland is a one-party state,” where Democrats are in charge of all three branches of government. And it is conceivable that the Maryland courts will let Jessamy use an obscure technicality to harass the makers of the video for years, despite the First Amendment.

There is a legal doctrine called “Younger abstention,” under which federal judges, based on “federalism,” won’t issue injunctions against state-court prosecutions, even if they violate the First Amendment or other constitutional provisions, unless the prosecution is not only unconstitutional, but “patently” and “flagrantly” unconstitutional. That is an extraordinarily high standard to meet, which insulates many unconstitutional state prosecutions from being challenged in federal court.

If Jessamy prosecutes YouTube, which is hosting the video, or the bloggers and journalists who are broadcasting it, this standard will be met, and a federal judge will likely issue an injunction against her wrongdoing. (See In re Providence Journal Co., 820 F.2d 1342 (1st Cir. 1987) (issuing injunction); Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) (disseminating audiotape that was banned by state “privacy” law was protected by First Amendment)).

But if she just prosecutes the makers of the undercover video, like filmmaker James O’Keefe, it is conceivable that federal judges will refuse to intervene, saying that her violation of the First Amendment, while proven, is insufficiently “patent” and “flagrant” to justify an injunction against her (although I would argue to the contrary).

If that happens, she may be able to harass the makers of the video for years, until state prosecutions or convictions are overturned by the U.S. Supreme Court.  Even after their convictions or prosecutions are overturned on First Amendment grounds, she will be immune from any personal consequences, since prosecutors have “absolute civil immunity” against damages for constitutional violations they commit in the course of their jobs.

“Younger abstention” doesn’t apply until the prosecutor actually brings charges. So the makers of the video could seek a federal court injunction against their impending prosecution, right now, if they had attorneys. But the makers of the video appear to be conservative activists, not liberals, so the ACLU likely won’t jump at the chance to represent them (although it may eventually file an amicus brief on their behalf if they end up being prosecuted).

Interesting lectures are a great thing. Good cocktails are a very good thing. But when the two are combined into a single presentation, the effect is just plain fun, which is how I describe the event I attended last night.

Garrett Peck, author of The Prohibition Hangover: Alcohol in America from Demon Rum to Cult Cabernet, walked an audience through the history of Americans’ conflicted relationship with alcoholic beverages (at Jackie’s Restaurant in Silver Spring, Maryland). Moving along in time, the lecture was augmented with drinks that were popular at different times in the nation’s history — including the infamous “coffin varnish,” about which H.L. Mencken wrote.

The “hangover” of prohibition, noted Peck, is the broad — often byzantine — regulatory framework under which alcoholic beverages are now produced, marketed, and sold in the United States. I’ve begun reading the book, which I’m finding enjoyable. And it’s got the best jacket blurb I’ve ever seen (from my friend Edward Stringham): “[T]his book will be of interest to anyone interested in alcohol.”

Peck also lead a Temperance Tour, in which he takes visitors along the historical landmarks that mark the road to the insanity that was prohibition. Here’s a toast to drug prohibition passing into history some day, as well.

Many falsehoods were uttered by the President in his health care speech, as even liberal newspapers and Obama advisers have made clear. But the inept, George Soros-funded liberal lobbyists at the Center for American Progress (CAP) attempted to demonize ObamaCare’s critics anyway.

CAP recently shot itself in the foot by refuting its own claims in its September 11 “Progress Report.”

For example, it wrote that critics of big government and ObamaCare “include the Heartland Institute and the Competitive Enterprise Institute, corporate front groups that claim smoking is good for you.”  But if you click on the very link for their false claim that CEI believes that “smoking is good for you,” it takes you to a CEI web page, www.controlabuseofpower.org, in which CEI not only makes no such claims, but does just the opposite, noting “the health risks of smoking” in the course of criticizing the $240 billion tobacco Master Settlement Agreement.

Indeed, the top post on that page, by CEI’s Ashley Jacobs, starts its last sentence about the tobacco settlement by explicitly “acknowledging the health risks of smoking.”

(The tobacco settlement has been defended in court by big tobacco companies that use it to squelch competition from smaller competitors, by forcing them to make costly escrow deposits on every cigarette they sell, under discriminatory laws states adopted as a condition of the settlement.  If CEI actually were a corporate front group, it would have defended the tobacco settlement, instead of attacking it, since its attack on the settlement dried up the small fraction of CEI’s funding that it once received from big tobacco companies).

There are many blog posts at OpenMarket saying that discriminatory regulation aimed at smokeless tobacco is bad precisely BECAUSE smoking kills, meaning that smokeless tobacco, which has far fewer health risks, should be allowed to trumpet its health-advantage over cigarettes so that smokers will stop smoking and switch to smokeless tobacco.  This public health benefit is, sadly, blocked by legislation backed by Philip Morris, the nation’s largest tobacco company, and, apparently, the Center for American Progress, which collects donations from corporations seeking to obtain corporate welfare and curry favor with the Obama Administration. (“Some open government groups, such as the Sunlight Foundation and the Campaign Legal Center, criticize the Center’s failure to disclose its contributors, particularly since it is so influential in appointments to the Obama administration,” as Politico has noted).

You can find three of my own blog posts discussing the dangers of smoking here, here, and here.

At the web sites of CEI and the Examiner, I have described cigarettes as “lethal” and “hazardous to your health” and written that “Every year, millions of smokers like my wife try and fail to quit . . . Many later die of smoking-related illnesses, which are caused by the smoke, not the nicotine.”