C|Net News blogger Chris Soghoian has the story on the search for transparency in the economic stimulus bill, and he cites Cato’s recent policy forum, Just Give Us the Data!
Good things will happen when taxpayers can see where the money goes.
Sign up to have blog posts delivered straight to your inbox!
C|Net News blogger Chris Soghoian has the story on the search for transparency in the economic stimulus bill, and he cites Cato’s recent policy forum, Just Give Us the Data!
Good things will happen when taxpayers can see where the money goes.
Last week Keith Olbermann conducted a pair of interviews that gives a troubling look at the NSA’s domestic wiretapping operations. First, Olbermann talked with Russell Tice, a former NSA analyst who tells Olbermann that the NSA had access to all of the American’s peoples’ electronic communications, including those of journalists. Second, Olbermann talked to a New York Times reporter who is currently being pressured by federal prosecutors to divulge his sources for his 2006 book State of War, which focused on the CIA’s recent intelligence-gathering activities. The federal government hauled various former government officials before a grand jury and confronted them with phone records showing conversations between the government officials and Risen. Olbermann suggests that Risen’s phone records might have been obtained by the NSA using the dragnet surveillance program Tice has described.
It’s important to acknowledge that we don’t know if Risen was a target of the NSA program. Federal prosecutors do have legal powers to obtain the phone records of suspects without the knowledge of those suspects. It’s quite possible that the feds got Risen’s records using a valid subpoena under judicial supervision. However, the fact that we don’t know the full story is itself a serious problem. If Tice has described the program accurately and Risen’s phone records were obtained as part of such a surveillance program, that would be a pretty major scandal. Remember that even last year’s extremely permissive FISA Amendments Act didn’t legalize warrantless eavesdropping on purely domestic communications.
The problem is that we don’t know. And unfortunately, this is an area where our system of checks and balances have broken down. Congress has shown little appetite for performing one of its most important functions: investigating the activities of the executive branch to verify that the law is being followed.
Congress wasn’t always so timid. Thirty-five years ago, after another lawless president left office, we had not just one but three investigations of the prior administration: one in the House, one in the Senate, and one in the executive branch. The most successful of the three was the Senate committee that came to be known as the Church Committee. It produced a massive report documenting a ton of illegal activities by the executive branch over the preceding half-century. Gene Healy and I discussed a few of their findings here, and Julian Sanchez has a more thorough summary of the findings here.
In the forthcoming edition of the Cato Handbook on Policy, I argue that Congress should launch a broad investigation of executive branch surveillance abuses modeled on the Church Committee. Only by uncovering the full extent of domestic surveillance activities in the past can we craft sensible safeguards to make sure that abuses cannot happen again. I think there are three crucial factors in making a new Church Committee a success. First, it needs to be bipartisan. That is, it can’t focus merely on the misdeeds of the Bush administration. I recommend starting where the Church Committee left off and including the activities of the NSA, CIA, and FBI under presidents Carter, Reagan, Bush 41, Clinton, and Bush 43. If done right, this would be more than a fig leaf. Bill Clinton was hardly a doctrinaire civil libertarian, and so investigation might uncover real abuses that occurred under Clinton’s watch.
Second, it’s important that as much of the results as possible be made public. The lasting impact of the Church Committee was largely due to the sheer quantity of illegal activities it uncovered. If the Church Committee had only released information about the most egregious violations of the law, advocates of executive power might have been able to spin them as the work of a few bad apples. But because the Church Committee documented a pattern of law breaking involving dozens of people over the course of decades, under Democratic and Republican presidents alike, it became clear that there were systematic problems requiring systematic reforms. The passage of the original FISA Act was one of the most important results of the Church Committee report.
Of course, partisans for the recently-departed Bush administration will paint any effort by Congress to expose these secret programs as a partisan witchhunt that will aid the enemy. And obviously, Congress should be careful not to reveal details that could derail ongoing terrorist investigations or put undercover agents at risk, and the like. But there’s plenty of work Congress could do that is plainly neither a partisan witchhunt nor a danger to national security. The information the Electronic Frontier Foundation has uncovered regarding cooperation between telecom companies and the government would be a good place to start. Maybe Congress will find nothing improper happened there, but it’s important for the public to know what did happen so we can decide for ourselves.
If you thought having privacy and civil liberties officials and oversight boards would protect privacy and civil liberties, think again.
You wouldn’t think that a book called In Search of Jefferson’s Moose could be about the Internet, but it is.
In his book, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, Temple University Law Professor David Post draws remarkable and entertaining parallels between the Internet and the natural and intellectual landscape that Thomas Jefferson explored, documented, and shaped.
Post will be at the Cato Institute for a lunch-hour book forum on Wednesday, February 4th. Clive Crook and Jeffrey Rosen will comment.
Register here to see just how nicely Thomas Jefferson, cyberspace, and a rather large moose fit between the covers of Post’s new book.
I’m reading Jonathan Zittrain’s The Future of the Internet and How to Stop It, and I’m having a hard time granting plausibility to the book’s thesis. Zittrain writes as follows:
As ubiquitous as Internet technologies are today, the pieces are in place for a wholesale shift away from the original chaotic design that has given rise to the modern information revolution. This counterrevolution would push mainstream users away from a generative Internet that fosters innovation and disruption, to an appliancized network that incorporates some of the most powerful features of today’s Internet while greatly limiting its innovative capacity — and, for better or worse, heightening its regulability. (p. 8 )
As examples, he contrasts the Apple II, a classic of early personal computing, to the iPhone of today. The first is wide-open to outside development, insecure, not always dependable, and susceptible to hacking by both friendly and unfriendly parties. The second is sterile, secure, and, we are told, entirely under the thumb of a now much more sinister corporation. Unless we do something, that corporation’s control over information technology will, he believes, quickly morph into state control as well. Zittrain seeks a world that is open to the personal computer, which he views as as a device that enables a particular computing ethos — one of open, freewheeling exchange and innovation. The iPhone represents that world’s antithesis, and the beginning of the end of the Internet as we know it.
Although I’m certainly concerned about civil liberties and privacy issues on the Internet, I have a lot of questions about Zittrain’s thesis.
Reason has a great interview with security guru Bruce Schneier.
Two particular quotes on the Transporation Security Administration stand out:
“If I were in charge of the TSA’s budget, I’d give most of it back.”
“Oh, and stop the ID checking—the notion that there is this master list of terrorists that we can check people off against is just plain silly.”
Schneier was a participant in our recent conference on counterterrorism strategy. In early 2005, I argued in the pages of Reason for doing away with the TSA entirely. Radley Balko recently suggested that Schneier, yours truly, or John Mueller should head the TSA.
I’ve been really impressed with the job that Regulation, Cato’s quarterly journal of regulatory policy, has been doing covering patent policy of late. A year ago, I highlighted a fantastic exchange between legendary libertarian legal scholar (and Cato adjunct scholar) Richard Epstein and Berkeley law professor Peter Menell over the legal and philosophical status of the patent system. Epstein, drawing a close parallel between traditional property rights and patent rights, argued that courts should give patent holders the same kind of strong enforcement powers—including the power to obtain injunctions against infringers—that are available to the holders of traditional property rights. Menell, for his part, emphasized the differences between patents and traditional property rights, and argued that in light of the patent system’s various deficiencies, it’s a good idea to give trial judges wide discretion about whether to award injunctions or monetary damages in infringement cases.
In the latest issue of Regulation, two of my favorite patent scholars, James Bessen and Michael J. Meurer, contribute something that’s all too rare in patent debates: empirical evidence. They argue that at root, Epstein and Menell’s dispute isn’t so much a philosophical disagreement as an empirical one: do patents, in fact, operate in the same beneficial fashion as traditional property rights? That is, do they enhance legal certainty and increase incentives for innovation, or do they confuse and discourage potential innovators? This is a question that can’t be settled in the abstract; it must be answered by looking at the performance of real patent systems and seeing what effects they have in real industries.
Bessen and Meurer’s answer to the question “do patents promote innovation?” is “it depends.” In particular, there appears to be wide variation in the efficacy of the patent system across nations, industries, and time periods. Historically, the patent system appears to have worked somewhat better in the United States than the UK, although its performance in the 19th century was mixed in both cases. Today, the patent system appears to work well for the pharmaceutical and chemical industries and poorly for most other industries. In most non-chemical industries, the costs of litigation are so astronomical as to completely swamp the patent system’s benefits. That is, the threat of litigation due to inadvertent infringement discourages research and development more than the patent system’s rewards to inventors encourages it. If Bessen and Meurer’s data are right, then the public would be better off if those industries did not have access to the patent system at all.
Bessen and Meurer stop there in their Regulation piece, but in their book, they argue that the fundamental problem is that outside of the chemical industries, the patent system does a poor job of defining the boundaries of patent rights. That is, in industries like software, it’s difficult to determine which patents cover any given product or technology. It’s analogous to a physical property regime in which there were numerous, overlapping claims for any given piece of land, and no clear procedure for sorting out the true owner. Such a “property” system would not have any of the beneficial features that libertarians correctly attribute to well-designed property regimes.
Friedman prize winner Hernando de Soto made a name for himself by advocating reforms to third-world property systems to make them work more like Western property systems. I think we should regard patent reformers like Bessen, Meurer, and Menell as doing something similar: seeking to reform the patent system to bring something like the predictability found in traditional property systems. De Soto understood that until that can be achieved, it’s crucial that the old “property” system not be strictly enforced, because the laws on the books are so far out of sync with the facts on the ground. It’s not fair to a Guatamalan squatter to raze the home he’s lived in for a decade because some bureaucrat decides the land rightfully belongs to someone else. By the same token, it would be unfair to an innovator like Vonage to force it to shut down the Internet telephony network it has constructed because it accidentally violated one of Verizon’s overly-broad patents. Before insisting that people respect patents, we need to make sure that the patent system is respectable.