Ryan Radia

Post image for Obama Announces NSA Reforms Could Undermine U.S. Leadership in the Global Information Economy

President Obama outlined plans to “reform” the National Security Agency’s mass surveillance programs in a Friday morning speech at the Justice Department. To his credit, the president announced some positive changes that would reduce the programs’ invasiveness and improve their judicial oversight.

Unfortunately, his reforms would not end the indiscriminate and unwarranted bulk surveillance of Americans’ phone records, despite more than 100 members of Congress urging him to end the program. Instead, the president suggested shifting the burden of collecting, storing, and securing Americans’ phone records to telecom companies or another private “third party.” Simply moving all this data off the government’s servers—and presumably, off its balance sheet—does not transform an objectionable activity, like mass surveillance, into an acceptable one. The government will, after all, still be able to access privately held phone records without a warrant.

What is concerning is: if the administration succeeds in pressuring American telecom firms to serve as an extension of the U.S. intelligence community, why stop with phone records? The NSA is also authorized to collect Americans’ email records in bulk—but the agency stopped doing so in 2011, citing “operational and resource reasons.” Should phone companies take on this responsibility, strong-arming Internet companies to retain their users’ metadata is a logical next step. The unintended consequences and pitfalls of such a move are worth serious consideration.

In a world of data breaches and hackers, we need to be able to trust Internet providers whose services we rely on to communicate, transact, innovate, and create. When a company makes a promise to users about how it will use, collect, and store their information, it should be held to that promise, absent a specific and individualized reason to break it. Outsourcing bulk-data collection to America’s private sector would undermine trustworthy digital relationships, and with them, the nation’s enviable position atop the global information economy.

Post image for Stop Watching Us: End Suspicionless NSA Mass Surveillance

By now, pretty much everybody has heard that the U.S. National Security Agency is indiscriminately collecting private information about all Americans who use a major U.S. phone company — including the phone numbers of both parties to any call involving a person in the United States. And the NSA is collecting buddy lists, monitoring email traffic, and gathering an untold-but-vast amount of other data from millions of people around the world. Stunning new revelations about this surveillance keep emerging; just this afternoon, German Chancellor Angela Merkel called President Barack Obama to complain about reports that the United States may have tapped her mobile phone. (The White House refused to comment on past snooping, stating only that the U.S. government doesn’t currently listen to Merkel’s calls, and won’t do so in the future.)

A broad coalition called StopWatching.us has brought together over 100 public advocacy organizations and companies from across the ideological spectrum to educate lawmakers and the public about these mass surveillance programs. The Competitive Enterprise Institute, the sponsor of this blog, is a member of the coalition. And over 500,000 people have signed the StopWatching.us petition. On Saturday, October 26, StopWatching.us is hosting a rally in Washington, D.C., in front of Union Station, to protest the mass surveillance programs. Go here for more details.

Meanwhile, check out this new Electronic Frontier Foundation-produced video, which features Maggie Gyllenhaal, Oliver Stone, John Cusack, Wil Wheaton, Rep. John Conyers Jr., and Phil Donahue speaking out against mass surveillance by the NSA:

Post image for Revised Cybersecurity Act Makes Meaningful Progress On Privacy

em>By Ryan Radia and Berin Szoka

A new version of the Cybersecurity Act of 2012 was introduced last night (PDF), and a vote on the Senate floor reportedly may occur as early as next week. Although we’re still digesting the 211-page bill, its revised information sharing title stands out for its meaningful safeguards regarding what cybersecurity information may be shared by providers and its limits on how government may use shared information. Such prudence is of utmost importance in any bill that gives private entities blanket immunity from civil and criminal laws, including the common law, for activities such as cybersecurity information sharing.

By way of background, our organizations — the Competitive Enterprise Institute and TechFreedom — joined several other free market groups in sending a coalition letter to House leadership back in April regarding CISPA (which ultimately passed that chamber). While we support legislation streamlining federal laws to ensure cybersecurity information flows freely among private companies and, where appropriate, to and from the government, we urged important changes to CISPA to limit potential governmental abuses and meaningfully protect individuals’ private information. Unfortunately, most of our suggestions were not reflected in the final version of that bill.

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Unshackling a market from obsolete, protectionist regulations can be a very challenging undertaking, especially when the lifeblood of a regulated industry is at stake. The latest push for regulatory reform to encounter the murky waters of modernization is the “Next Generation Television Marketplace Act.” The ambitious and comprehensive bill, introduced by Rep. Steve Scalise and Sen. Jim DeMint in their respective chambers of Congress, aims to free up the broadcast television market. The federal government’s hands have been all over this market since its inception, overseen primarily by the FCC, pursuant to the Communications Act.

The Next Generation Television Marketplace Act (“DeMint/Scalise”) is a bold and laudable bill that would, on the whole, substantially free up America’s television marketplace. But one aspect of the bill—its abolition of the retransmission consent regime—has sparked a vigorous debate among free marketers. This essay will explain what this debate is all about and why policymakers should think twice before getting rid of retransmission consent.

Toward a Free Market in Television

The DeMint/Scalise bill takes an axe to many of the myriad rules that stand in the way of a free market in television programming. As Co-Liberator Adam Thierer recently explained on these pages, the bill’s many provisions would among other things get rid of the compulsory licensing provisions in the Copyright Act that empower government to set the rates cable and satellite (“pay-TV”) providers must pay to retransmit distant broadcast signals. It would eliminate the “network non-duplication” rule, which generally bars pay-TV providers from carrying out-of-market signals that offer the same programs as local broadcasters. The bill would also end the “must-carry” rule that forces pay-TV providers to retransmit certain local broadcast signals without receiving any compensation.

These are just a few of the many provisions of the DeMint/Scalise bill that would substantially reform the Communications and Copyright Acts to foster a free video marketplace and bring television regulation into the 21st century. (For a more in-depth assessment of the positive aspects of the DeMint/Scalise proposal, see Adam’s informative Forbes.com essay, Toward a True Free Market in Television Programming; Randy May’s superb Free State Foundation Perspectives essay, Broadcast Retransmission Negotiations and Free Markets;” and Bruce Owen’s FSF essay, The FCC and the Unfree Market for TV Program Rights.)

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Securing Property Rights in Space

On Thursday, April 5, the Competitive Enterprise Institute will host a Capitol Hill briefing to introduce a new study by Adjunct Scholar Rand Simberg: Homesteading the Final Frontier: A Practical Proposal for Securing Property Rights in Space.

The right to claim, develop, and trade property and particularly real estate has been the driving force of human exploration throughout history. Currently, this right does not exist off planet, and its absence is discouraging real investment in space development. Rand Simberg argues that the U.S. should recognize off-planet land claims by private groups and individuals under certain conditions. The proposed Space Homesteading Act outlines appropriate conditions, including mandates that claimants offer land for sale and ensure commercial space transportation to settlements.

Some scholars argue that the 1967 Outer Space Treaty and the 1979 Moon Treaty preclude any nation from recognizing private property claims in space. Simberg responds to these arguments in detail and makes his case for why the Outer Space Treaty does not in fact outlaw private property claims and why the U.S. should repudiate the Moon Treaty, to which it is not a signatory.

Rand Simberg will present his study and answer audience questions at Thursday’s Capitol Hill briefing. Also speaking at the briefing will be Iain Murray, Vice President for Strategy at CEI, and James E. Dunstan, Senior Adjunct Fellow at TechFreedom and an attorney specializing in space issues.


Streaming Live by Ustream

Professor Stephen Bainbridge recently responded to a National Review Online article by my colleagues John Berlau and David Bier in which they argue that the STOCK Act (which recently passed both houses of Congress) would, if enacted, discourage congressional staffers from engaging in “whistleblowing and routine communication with outside groups.” Prof. Bainbridge responds by summarizing the state of insider trading laws vis-à-vis congressional staffers; he concludes that Berlau and Bier’s essay is a “load of codswallop,” a conclusion with which I disagree.

Many of Prof. Bainbridge’s criticisms are well-taken, to be sure, and I’d be remiss to attempt to defend all of Berlau’s arguments. However, Prof. Bainbridge overstates his case in contending that “[t]he STOCK Act doesn’t change the law applicable to Congressional staffers.” Although the STOCK Act would hardly ban whistle blowing, the law would substantially alter — or, at the very least, meaningfully clarify — the degree to which congressional staffers are subject to liability under the insider trading laws.

At issue is Section 4 of the STOCK Act. Here’s the relevant portion:

SEC. 4. PROHIBITION OF INSIDER TRADING.

(a) Affirmation of Nonexemption- Members of Congress and employees of Congress are not exempt from the insider trading prohibitions arising under the securities laws, including section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder.

(b) Duty-

(1) PURPOSE- The purpose of the amendment made by this subsection is to affirm a duty arising from a relationship of trust and confidence owed by each Member of Congress and each employee of Congress.

(2) AMENDMENT- Section 21A of the Securities Exchange Act of 1934 (15 U.S.C. 78u-1) is amended by adding at the end the following:

`(g) Duty of Members and Employees of Congress-

`(1) IN GENERAL- Subject to the rule of construction under section 10 of the STOCK Act and solely for purposes of the insider trading prohibitions arising under this Act, including section 10(b) and Rule 10b-5 thereunder, each Member of Congress or employee of Congress owes a duty arising from a relationship of trust and confidence to the Congress, the United States Government, and the citizens of the United States with respect to material, nonpublic information derived from such person’s position as a Member of Congress or employee of Congress or gained from the performance of such person’s official responsibilities.

The last paragraph explicitly imposes on congressional staffers (and on Members) a “duty arising from a relationship of trust and confidence . . . with respect to material, nonpublic information derived from such person’s position . . . [for purposes of the insider trading laws.]”

Prof. Bainbridge argues in his response to Berlau that this language is redundant as far as congressional staffers are concerned:

As I demonstrated . . . in my article Insider Trading Inside the Beltway, insider trading and tipping by Congressional staffers and executive branch employees is already illegal under current law. It was only Members of Congress who fell through the cracks of current law.

This oversimplifies the profound grey areas surrounding insider trading laws and obfuscates how the STOCK Act might substantially impact staffers’ willingness to disclose material nonpublic information. Although Prof. Bainbridge is correct in stating that insider trading laws already apply to congressional staffers, today, the outer reach of these laws is entirely unclear.

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Post image for Feds Should Stay Out of Google/Twitter Social Search Spat

By Berin Szoka, Geoffrey Manne, and Ryan Radia

As has become customary with just about every new product announcement by Google these days, the company’s introduction on Tuesday of its new “Search, plus Your World” (SPYW) program, which aims to incorporate a user’s Google+ content into her organic search results, has met with cries of antitrust foul play. All the usual blustering and speculation in the latest Google antitrust debate has obscured what should, however, be the two key prior questions: (1) Did Google violate the antitrust laws by not including data from Facebook, Twitter and other social networks in its new SPYW program alongside Google+ content; and (2) How might antitrust restrain Google in conditioning participation in this program in the future?

The answer to the first is a clear no. The second is more complicated—but also purely speculative at this point, especially because it’s not even clear Facebook and Twitter really want to be included or what their price and conditions for doing so would be. So in short, it’s hard to see what there is to argue about yet.

Let’s consider both questions in turn.

Should Google Have Included Other Services Prior to SPYW’s Launch?

Google says it’s happy to add non-Google content to SPYW but, as Google fellow Amit Singhal told Danny Sullivan, a leading search engine journalist:

Facebook and Twitter and other services, basically, their terms of service don’t allow us to crawl them deeply and store things. Google+ is the only [network] that provides such a persistent service,… Of course, going forward, if others were willing to change, we’d look at designing things to see how it would work.

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Combating “rogue websites” is a top priority for many in Congress this year. Lawmakers have held several hearings over the past few months to explore ways to address these rogue sites, which are typically foreign-based websites that are dedicated to trafficking in counterfeit goods and/or facilitating unlawful copyright infringement. Most recently, on May 12, several U.S. Senators introduced the PROTECT IP Act (bill text). The bill would establish new legal mechanisms designed to enable the government and rights holders to combat Internet sites that are “dedicated to infringing activities.”

Congress deserves praise for incorporating several of the ideas we proposed last year in the context of COICA, a similar bill that was introduced — but not enacted — in the last session of Congress. As several dozen law professors warned last year, COICA lacked procedural safeguards, was overly broad in its scope, and risked hindering free expression by triggering “false positives” rendering lawful websites inaccessible. Compared to COICA, PROTECT IP represents a more balanced approach to fighting online copyright and trademark infringement while recognizing fundamental civil liberties.

However, in spite of these improvements, the PROTECT IP Act contains some troubling provisions that should concern lawmakers who believe in balanced, thoughtful intellectual property laws that “promote the Progress of Science and useful Arts.”

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On Wednesday, I appeared on the Laura Ingraham Show to discuss the Obama administration’s stance on reforming the 1986 law that governs law enforcement access to private electronic communications.

CEI has joined a number of policy groups, corporations, and academics in urging Congress to amend outdated U.S. laws originally intended to protect citizens against unwarranted law enforcement access to their private information held electronically by third parties. However, as CNET’s Declan McCullagh has chronicled, the Justice Department recently expressed to Congress its opposition to strengthening privacy laws.

You can listen to the whole interview here (subscription required). Here’s an excerpt:

MS. INGRAHAM: The Electronic Communications Privacy Act . . . was passed back in 1986, and now it’s being interpreted . . . to allow e-mails stored with an Internet provider for more than 180 days as if they were abandoned. And it makes them available to the government to access with only a subpoena. No search warrant. . . . How does a 1986 law . . . apply to e-mails when e-mails weren’t around in 1986?

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In the ongoing copyright debates, areas of common ground are seemingly few and far between. It’s easy to forget that not all approaches to combating copyright infringement are mired in controversy. One belief that unites many stakeholders across the spectrum is that more efforts are needed to educate Internet users about copyright. The Internet has spawned legions of amateur content creators, but not all of the content that’s being created is original. Indeed, a great deal of online copyright infringement owes to widespread ignorance of copyright law and its penalties.

For its part, Google yesterday unveiled “Copyright School” for YouTube users. As Justin Green explains on the official YouTube blog, users whose accounts have been suspended for allegedly uploading infringing content will be required to watch this video and then correctly answer questions about it before their account will be reinstated:

Of course, boiling down the basics of copyright into a four and a half minute video is not an easy task, to put it mildly. (The authoritative treatment of copyright law, Nimmer on Copyright, fills an 11-volume treatise.) Copyright geeks and fans of “remix culture” will appreciate that Google’s video touches on fair use and includes links to in-depth resources for users to learn more about copyright. It will be interesting to see how Google’s effort influences the behavior of YouTube users and the incidence of repeat infringement.

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