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Indiana University law professor Fred Cate writes with characteristic thoroughness and organization in his article “Government Data Mining: The Need for a Legal Framework,” published in the Harvard Civil Rights-Civil Liberties Law Review this summer.

Here’s a snippet from the abstract:

The article describes the extraordinary volume and variety of personal data to which the government has routine access, directly and through industry, and examines the absence of any meaningful limits on that access. So-called privacy statutes are often so outdated and inadequate that they fail to limit the government’s access to our most personal data, or they have been amended in the post‑9/​11 world to reduce those limits. And the Fourth Amendment, the primary constitutional guarantee of individual privacy, has been interpreted by the Supreme Court to not apply to routine data collection, accessing data from third parties, or sharing data, even if illegally gathered.

Professor Cate spends a good deal of time on the Supreme Court’s pernicious “third party doctrine,” which exempts information shared with a third party (think of ISPs, banks, etc.) from Fourth Amendment protection. This rule was bad when it was written and it grows worse and worse as we move our lives further and further online.

Oh, there are details from the paper I would have treated differently. He mistakenly says the 9/11 terrorists used false ID. (Fraudulently gotten, yes. False identities, no.) And he omits the Federal Agency Data Mining Reporting Act of 2007, passed as §804 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (Public Law 110–53). But these are trivial issues with a paper that is excellent overall.

(I note with pride and pleasure that he cites the Cato Policy Analysis “Effective Counterterrorism and the Limited Role of Predictive Data Mining,” which Jeff Jonas and I wrote.)

Poking around among the Internets to confirm this and that detail, I found this post saying that Professor Cate authored much of a recent report called “Protecting Individual Privacy in the Struggle Against Terrorists.” It’s also very good stuff.

Fred Cate is doing good work.

On Monday, the Supreme Court will hear the case of Wyeth v. Levine, which the U.S. Chamber of Commerce has called the “business case of the century.” A Vermont woman who had to have an arm amputated after a nausea drug was improperly administered sued the drug’s manufacturer, Wyeth (she also sued the clinic, physician, and physician’s assistant, but these parties settled). She won in state court, and Wyeth sought review in the U.S. Supreme Court under the theory of “preemption” — that states cannot regulate (by statute or common law) in fields, like pharmaceuticals, where the federal government already does. Here the FDA had approved Wyeth’s label, but Wyeth did not change that label to conform to Vermont’s particular (and stronger) laws.

I don’t know whether this is the “business” case of the century, but it may well be that for the pharmaceutical industry. The outcome turns on a close reading of the statute — as Dan Troy and Becky Wood detailed in the most recent Cato Supreme Court Review, the Court is much more likely to endorse “explicit” rather than “implicit” preemption — but everyone (especially patients) will be better off if the Court upholds FDA preemption here. The courts should not be micro-managing what goes on labels or we will end up with the “overwarning” problems that defeat the labels’ purpose. Moreover, litigation is a blunt regulatory instrument that tends to skew the FDA’s already warped incentives to give too much weight to rare side-effects at the cost of prohibiting or suppressing useful drugs. These incentives, and the related litigation costs, ultimately affect the development of new drugs.

My post yesterday regarding Members of Congress who voted to exempt financial derivatives from state gambling laws created a firestorm of controversy. Well, two people asked me about it, anyway …

(A new Wash​ing​ton​Watch​.com post on the presidential candidates who didn’t help create our economic problems is available for your perusal, by the way.)

“Why would a libertarian think it’s bad to exempt anyone from regulation? Do you support gambling laws? Do you support financial services regulation?”

These are all fair questions, given my objection to preempting state gambling laws in this case. So let me expand on this observation from my earlier post:

Many gambling laws are nanny-statism, of course, but if they’re going to go away, they should be repealed by the legislatures that wrote them. This federal preemption gave special permission to certain parts of the financial services industry to run a huge gambling operation masquerading as a market in real assets.

I’m quite a bit less a fan of preemption than many of my colleagues. There are fair-minded people who believe that national markets call for national regulatory regimes to replace the states’. As commerce has become national, the Commerce Clause has become a grant of authority to regulate national markets, they appear to believe.

I’m not convinced. Given the nation’s experience under the Articles of Confederation, the Commerce Clause was included in the Constitution to prevent states from regulating parochially — that is, for the benefit of local interests over out-of-staters. The Constitution gave Congress authority to regulate commerce “among the states” — which, if words have meaning, is something narrower than just regulating all commerce.

So when state gambling laws interfere with an interest capturing the sympathy of a majority in Washington, D.C., that doesn’t necessarily empower Congress to withdraw state authority. Congress is supposed to prevent only state parochialism, not every bad idea coming out of a state legislature.

If we are to have a healthy political economy, debates about state gambling regulations should be taken to each state that enacted them. The merits of freedom and personal responsibility should be made clear there so they win majorities once again.

The alternative preferred by many is a shortcut: trumping states by moving power to the federal level. This is not a felicitous trend, and its end-point — a remote national government with plenary power — is not good for liberty.

Gambling regulation is nanny-statism, but I wouldn’t go and kick the legs out from under state anti-gambling regulation through federal preemption — especially not for one narrow part of the financial services industry. This is not a game, where any loss for regulation is a gain for liberty.

If responsibility for self-protection against gambling is going to be restored to people in a given state, the legislature of that state should repeal the anti-gambling laws, signaling people that they are once again responsible for themselves. What happened here was that Congress trumped state power and withdrew the protection of state anti-gambling regulation without signaling to anyone that there were risks to be encountered. What looked like asset-based financial services to all but a few was in fact gambling.

The Congress helped perpetrate a deception about what was going on with financial derivatives — and just because some regulation went under the tires, that isn’t a victory for liberty.

The good folks at the Flex Your Rights Foundation have produced a Citizen’s Guide to Refusing DC Metro Searches.

A timely response to news that there would be random searches, which is poor counterterrorism.

terrorism [ter-uh-riz-uhm]
- noun

1. the use of violence and threats to intimidate or coerce, esp. for political purposes.
2. the state of fear and submission produced by terrorism or terrorization.
3. a terroristic method of governing or of resisting a government.

So, one would think that countering terrorism would involve resisting coercion by resisting fear and submission.

That’s not the case in Washington, D.C., where Metro officials plan to start random searches of travelers’ bags. Not because of any specific threat, but because “Americans everywhere are at some risk from terrorism.”

Let’s get something out of the way first: Random searches do not provide security against terrorist acts. If it comes to it, a bomber can inspire fear just as well by exploding a checkpoint as he can by bombing any other part of the Metro system. Other kinds of attacks can be snuck past random checks or even comprehensive checks. Random searches are security theater, designed to make it seem like something protective is being done when it’s not.

What random searches do is reward past acts of terrorism by demonstrating that they have successfully cowed our society, made it fearful, and subject to coercion. This will tend to encourage future acts of terrorism. Seven years later, the 9/11 attacks are still paying dividends.

Searching at random in the Metro system plays into the terrorism strategy. Metro officials mean well, there can be no doubt, but they’re patsies to terrorism.

This is the time of the season for being fed up with politics and not least, of course, with the presidential election. (Actually, I reached that point a while ago). Part of my frustration comes from the candidates who appear willing to say anything, no matter how unrealistic, to win the White House. But part of my frustration lies also with the media who don’t hold the candidates to any standards that might inform voters who care enough to read and listen. This is all the more so since we are experiencing a financial crisis that elicits nothing more from the candidates than a promise “to fix the economy,” whatever that might mean. Shouldn’t the media demand more on our behalf?

Writing for a new blog from The Media Institute, Patrick Maines helps makes sense of my frustration. He points out that the media are following their practice of covering the financial crisis (and the presidential election) like a horse race. Yes, the crisis is helping Obama, but is that the most important thing to know right now? Maines writes:

The stark fact is that the national news media have underreported and misreported virtually every important aspect of our national nightmare: how we got into it, how we can prevent it from happening again, and, most importantly, how we can escape its worst effects now — and how our national leaders can help us.

Maines’ criticism is apt and convincing. The Media Institute, the home of the blog, works on free speech issues and receives substantial support from media companies. Of course, free speech does not necessarily mean good or even useful speech. But the answer to such shortcomings is more speech as Maines proves in his post.

I am intrigued that Maines criticizes the media, a pretty independent stance when you think about it. This blog bears watching as we head into a new administration that seems likely to offer many challenges to freedom of speech.