Ben Sperry

Post image for When Violations Of The Law Have No Remedy: The Case Of Warrantless Wiretapping

Yesterday, in Al-Haramain Islamic Foundation, Inc. v. Obama, a panel for the Ninth Circuit Court of Appeals ruled that the federal government did not unequivocally waive its sovereign immunity when it comes to violations of federal wiretapping law, thus leaving violations without a civil remedy. In effect, this leaves the plaintiffs with no ability to hold the government accountable for breaking its own laws. As the opinion itself stated: “This case effectively brings to an end the plaintiffs’ ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization.”

The dangers of broad immunity are real in both the public and private contexts. Previously, Ryan Radia of CEI and Berin Szoka of TechFreedom have argued that any cybersecurity bill passed by Congress should not grant broad statutory immunity against common law contract claims because it would prevent a market for privacy from arising. In Al-Haramain, the principle of sovereign immunity was applied, thwarting an attempt to keep government officials accountable.

The genesis of sovereign immunity should be enough to illustrate its dangers. The concept is a relic of a bygone era, reflecting the medieval idea that “the King can do no wrong.” Erwin Chemerinsky, Against Sovereign Immunity, 53 Stan. L. Rev. 1201, 1201 (2001). Along with the confused doctrine of divine right of Kings, there were those who seemingly believed the monarch actually shared many of God’s attributes–such as perfect administration of justice. This is in stark contrast with the classical liberal standard, which is that all men should be held accountable for their actions.

The notion that the government is incapable of error seems contrary to the historical experience of the Founding generation and can be found nowhere in the United States Constitution. Nonetheless, the concept of sovereign immunity has been incorporated into American law by courts who looked to English common law and practice. The theoretical justification of such a move has been unclear even to the courts which have applied it. See, e.g., United States v. Lee, 106 U.S. 196, 207 (1882) (“[T]he principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”).

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Lord Acton’s beard absolutely knows that power corrupts

In the ongoing debate over the Senate’s Cybersecurity Act of 2012 (S. 3414), one major point of contention is whether the bill adequately safeguards individuals’ private data from governmental abuses. While CEI praised recent changes to the bill’s information sharing provisions, we remain seriously concerned about the bill’s implications for privacy competition and trust in cloud computing.

Next week, the Senate is expected to vote on a flurry of amendments to S. 3414, some of which are available here. One smart proposal, spearheaded by Sen. Daniel Akaka, would amend the Cybersecurity Act and several existing laws to better ensure the federal government doesn’t abuse the information it acquires and maintains about private individuals.

Among other positive changes, Sen. Akaka’s amendment would deter the federal government from willfully abusing private data and require the government to notify persons whose data is breached.

Deter Government From Willfully Abusing Private Data – The amendment would amend the Privacy Act of 1974 to ensure that individuals who suffer actual harms due to certain willful or intentional privacy violations by government can obtain meaningful recourse. This statutory change would address a gaping hole in the Privacy Act created by the Supreme Court’s recent opinion in FAA v. Cooper, 132 S. Ct. 1441 (2012), which held that victims of certain privacy violations by government cannot recover damages caused by mental and emotional distress—even where victims can prove they suffered severe mental anguish.

In Cooper, the Social Security Administration violated the Privacy Act by disclosing the HIV-positive status of Stan Cooper to the FAA and Department of Transportation. Even though the trial court concluded the SSA willfully violated Cooper’s privacy, the Supreme Court held that he couldn’t recover proven emotional damages. The Court reasoned that because waivers of sovereign immunity must be made explicitly by Congress, the reference to “actual damages” in the Privacy Act should be construed narrowly and, therefore, only encompasses pecuniary losses.

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Way back when the DOJ brought an antitrust suit against Microsoft in 1990s, Milton Friedman had this to say to The Wall Street Journal:

“We’ve gradually come to the conclusion that, on the whole, [antitrust] does more harm than good.” Antitrust laws, he says, “tend to become prey to the special interests. Right now, who is promoting the Microsoft case? It is their competitors, Sun Microsystems and Netscape.”

Unfortunately, this tendency for antitrust to become prey for special interests continues today.  Antitrust law is supposed to be about promoting competition and assuring business conduct does not negatively affect consumer welfare.  All too often, though, self-interested actors in both public and private roles attempt to use these laws to further more nefarious goals.

The Supreme Court has repeatedly stated that antitrust laws “were enacted for ‘the protection of competition not competitors.’” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767 n.14 (1984) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962))) (emphasis in original). This is because competition is vital for promoting consumer welfare. Nonetheless, one competitor of Google’s, Nextag CEO Jeffrey Katz, has recently used the pages of The Wall Street Journal to argue for antitrust enforcement against the search engine giant because of perceived harms to his company. But once his argument is broken down and analyzed, it becomes apparent that this is essentially a complaint akin to Burger King criticizing McDonald’s for failing to prominently display where consumers can get Whoppers.  If such complaints can be the basis of government intervention, then the antitrust laws will effectively become anti-competitive themselves, with economic liberty being destroyed along the way.

Katz starts his complaint by noting the size of Google’s market share: “It is the most popular search engine in the world, controlling nearly 82% of the global search market and 98% of the mobile search market.” While one could be tempted to simply answer with congratulations to Google for its success, the more apt response is that Google’s search market share may not be relevant for antitrust purposes.  This is because Google is engaged in what economists call a “two-sided market.” While most people use Google for its free search engine, Google makes its money by selling advertising space.  And, as an advertiser, Google’s shares take up a drastically smaller fraction of the whole market (estimated around 7.5 percent of total world advertising). Once this is recognized, it becomes very difficult to argue Google is a monopolist capable of antitrust violations under Sherman Section 2.

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Post image for Net Neutrality: Two Concepts of Liberty

Two Concepts of Liberty

In December of 2010, the FCC passed a network neutrality order mandating, among other things, that ISPs allow content to be passed through their networks. Proponents of network neutrality have called it the “First Amendment for the 21st Century.” Opponents have responded by arguing that it is the FCC’s network neutrality order that violates the First Amendment. How can this be?

This ongoing debate has many legal and policy elements, but it seems to come down to an old philosophical divide involving differing conceptions of liberty. In his famous lecture, analytic philosopher Isaiah Berlin described the two concepts of liberty as negative and positive. To simplify, negative liberty is freedom from external inteference. Positive liberty, on the other hand, is freedom to do something, which includes having the power and resources necessary to do that something.

For example, negative liberty means that no one may rightfully take my property away from me without my consent. On the other hand, an example of positive liberty would be that I have a right to health care which must be provided for me if I cannot afford it on my own.

Necessarily, positive rights, like the right to health care, involve at least some subjugation of the rights of others. It would violate the rights of those who must provide the health care without their consent, and also those who must provide the means to pay for such health care. Further, it would also infringe upon other positive rights insofar as there are scarce resources available to pay for all such rights. It is also important to note that Berlin described a dangerous rhetorical affinity between demands for positive liberty and justifications for totalitarianism, because it allows those in power to argue their schemes are just providing true liberty for the people.

Conversely, negative rights are compossible with one another, which means all people could hold them simultaneously. These rights apply only against aggressors, i.e. rapists, murderers, and thieves, and not against those who are respecting the rights of others. This is why most libertarians and classical liberals prefer the negative conception of liberty to the positive.

Proponents of net neutrality promote a positive conception of liberty. Opponents of net neutrality promote a negative conception. As a result, the two sides talk past each other. Proponents argue that end-users should have the ability to access anything on the internet by using the networks provided by ISPs. This is a freedom to surf the internet. Opponents argue that the ISPs have a right to manage their networks, just as one would have the right to manage one’s own property according to the terms and conditions one chooses. This is a freedom from external interference with one’s network management.

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Post image for If Only All Policemen were Leroy Jethro Gibbs

As a fan of NCIS, I’m quite aware of the government’s ability to track the location of individuals through their cell phones. One of the show’s recurring motifs involves a junior special agent hacking into the locational data of a suspect’s phone without ever obtaining so much as a court order. Luckily, NCIS is led by one Leroy Jethro Gibbs, a former Marine of exemplary character and intuitive knowledge. Gibbs routinely acts upon his gut instinct, and happens to always be correct in deciding whether a suspect is guilty.

If all police officers were like Gibbs, or at least led by someone like Gibbs, then we might not need privacy protections. In fact, any limitations on government at all would arguably be unduly restrictive. If there were true philosopher-kings who had the requisite knowledge and character, then ceding to them unlimited power to plan the affairs of others would not be so bad (at least from a consequentialist point of view).

In the real world, however, government officials, including policemen, possess sharply limited knowledge and are not always benevolent. The Constitution properly recognizes these limitations, and thus enshrines protections for our “persons, houses, papers, and effects” in the Fourth Amendment. In general, government officials must obtain a warrant supported by probable cause from a neutral judge before searching or seizing private digital information. As James Madison famously stated in Federalist #51:

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

In other words, the Constitution’s protections contemplate a nation in which not all policemen share Gibbs’ omniscience and benevolence. Unfortunately, however, Supreme Court precedent and outdated statutes have effectively created a massive hole in privacy protection when it comes to the tracking locational data through cell phones and other mobile devices. A recent ACLU report based on Freedom of Information Act requests revealed that this hole is big enough to allow police forces throughout the country to engage in cell phone tracking. Alarmingly, only a few agencies reported to abide by the warrant and probable cause standard of the Fourth Amendment when obtaining such information.

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Post image for Classic Obfuscation: The New America Foundation’s Search for the “Public Interest”

Milton Friedman once quipped that “Nothing is so permanent as a temporary government program.” Perhaps he would add the outmoded idea of the “public interest” as used by the FCC if he were still alive today.

On May 23, the New America Foundation, in coordination with Public Knowledge and the Rutgers Institute for Information Policy and Law, held an event titled Broadcast to Broadband: New Theories of the Public Interest in Wireless. Unfortunately, though, no new theory of the public interest was forwarded. Instead, there was a rehashing of the same tired clichés about universal service, localism, and diversity. All of the participants — panelists, speakers, and questioners—were united in the belief that basic public interest notions currently followed by the FCC in the broadcast realm should be extended into the broadband realm.

The event kicked off with a keynote address from Larry Irving, the President & CEO of Irving Information Group and former head of NTIA. Right after quoting Steve Jobs for inspiration to “think differently,” Irving stated this:

“We don’t need a new theory of the public interest, some things are just classic. A 1964 Ford Mustang, a Chanel little black dress, Marvin Gaye’s What’s Going On when you have a woman in a Chanel little black dress somewhere…”

Just like those classics, the public interest standard could be “tweaked” or “changed” but it cannot be improved upon. Despite then immediately admitting that technology is outstripping policy, Irving went on to define the public interest in classic FCC fashion: universal service, diversity, and localism.

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In his speech just completed at a Toledo, Ohio Chrysler plant, President Obama continued the government PR work on behalf of bailed out auto companies when he stated the misleading claim that Chrysler had completely repaid its government loan six years ahead of schedule. For more on how the government and these car companies are lying about the repayment of the bailout, see CEI’s news release from yesterday.