Well, some of them anyway. The U.S. International Trade Commission has found that Apple infringed one of Samsung’s patents related to 3G technology and issued an injunction against the importation and sale of the iPhone 3GS, iPhone 4, iPad 3G, and iPad 2 3G. These are not the latest models, but neither are they obsolete. (For a very helpful and thorough explanation of the issues in the case, check out Florian Mueller’s FOSS Patents blog.)

The outcome in this case offers an excellent example of why having a redundant patent litigation venue at the ITC with slightly different laws and procedures is bad public policy. If this patent had been litigated in federal district court, where the vast majority of patent litigation takes place, the judge would have refused to issue an injunction as contrary to the public interest—even if Apple egregiously and remorselessly infringed Samsung’s patent.

The patent at issue in the ITC investigation is what’s known as a standard-essential patent. This is a term for technology that’s so ubiquitous as to be necessary for interoperability within the industry (like 3G) and that the patent owner has agreed to license to anyone who makes a reasonable royalty offer (thus promoting it to become the industry standard). It is highly unlikely that a federal district court would issue an injunction against any product based on infringement of such a patent, because doing so would be excessively disruptive and unfair. In fact, the Justice Department and other antitrust agencies have argued that merely seeking an injunction based on one of these patents might violate antitrust law.

None of this matters at the ITC, where injunctive relief is the only remedy available. In 2006, the U.S. Supreme Court held that courts should award only monetary damages in patent cases unless there are special circumstances necessitating an injunction and doing so would not harm the public interest. The purpose and consequence of the Supreme Court’s decision was to prevent patent trolls from using small patents to get large settlements. But monetary damages are unavailable at the ITC, and the agency decided the Supreme Court’s ruling didn’t apply to them.

In the Apple-Samsung case, Apple claimed that Samsung’s request for royalties of 2.4 percent was unreasonably high. If the patent is worth less than 2.4 percent of the product’s value, an injunction against selling the entire phone is excessive. This is especially true when the technology is virtually impossible to design around. Rather than simply deciding who pays what to whom in a dispute that is mostly about licensing fees, a sales ban deprives consumers of choice in the market.

The good news is that efforts are underway in Washington to fix the problem of excessive remedies at the ITC. The White House released a proposal for patent reform this week that included a call “to enhance consistency in the standards applied at the ITC and district courts.” Specifically, they want the ITC to use the same public interest test that courts use before issuing an injunction (Rep. Devin Nunes made a very similar proposal last year). This is a good plan. It would likely have prevented the new iPhone ban and will do a lot to make the ITC less attractive to patent trolls.

Fixing problems at the ITC by making it more like district court litigation, however, shows very clearly how redundant and unnecessary it is to have two venues for patent litigation. Why should we have the ITC hearing patent cases in the first place? There is no satisfactory answer to that question. As I argued in a Policy Analysis last year, the ITC’s power to investigate and exclude imports for patent infringement not only disrupts the proper functioning of the U.S. patent system, it also violates international trade rules. We could save ourselves a lot of trouble down the line by shutting the whole thing down.

Is libertarianism a worldwide trend among young people? There are poll reports from the United States, Great Britain, and Turkey this week that point in that direction.

The College Republican National Committee put out a report finding that young voters are very much against excessive government spending (though they do support higher taxes on the wealthy) and are strongly in favor of gay marriage. They want to reform entitlements but see the Republican party as “closed-minded, racist, rigid, old-fashioned.”

Meanwhile, the Economist, in an editorial titled “The strange rebirth of liberal England” (in an allusion to a famous history book), writes, “Young Britons have turned strikingly liberal, in a classical sense.…The young want Leviathan to butt out of their pay cheques as well as their bedrooms.” An accompanying article declares, “Britain’s youth are not just more liberal than their elders. They are also more liberal than any previous generation”:

Young Britons are classical liberals: as well as prizing social freedom, they believe in low taxes, limited welfare and personal responsibility. In America they would be called libertarians.

More than two-thirds of people born before 1939 consider the welfare state “one of Britain’s proudest achievements”. Less than one-third of those born after 1979 say the same. According to [the long-running British Social Attitudes survey], members of Generation Y are not just half as likely as older people to consider it the state’s responsibility to cover the costs of residential care in old age. They are also more likely to take such a hard-hearted view than were members of the famously jaded Generation X (born between 1966 and 1979) at the same stage of life.

“Every successive generation is less collectivist than the last,” says Ben Page of Ipsos MORI, a pollster.

And finally comes this headline from the Hurriyet Daily News in Istanbul: 

Protesters are young, libertarian and furious at Turkish PM, says survey

An online survey of 3000 protesters conducted by two academics found, among other things:

A majority of the protesters who completed the survey, 81.2 percent, defined themselves as “libertarian.” A total of 64.5 percent of the respondents defined themselves as “secular.”

Maybe this really is the libertarian moment. Students for Liberty attracted 1,400 attendees to its February national conference, and another 365 to a European conference in March. Now, as the Economist says, if only the young people will vote — and the parties will offer them candidates.

See if you can spot the civil-liberties victory:

1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

George Will’s latest column is a scathing attack on explosive growth in the federal criminal code, mandatory minimum sentencing, and plea bargaining. Here is an excerpt:

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day. And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”

He also suggests banning plea bargains: “An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. . . . Our criminal justice system, as presently practiced, is basically a plea-bargain system with actual trials of guilt or innocence a bit of showy froth floating on top.”

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Good stuff. For related Cato scholarship, go here, here, and here.

The National Security Agency is collecting records of every domestic and cross-border Verizon phone call between now and July 19th. The secret court order requiring Verizon to hand over these records has been leaked to the Guardian.

You may find that outrageous. 1984 has arrived. Big Brother is watching you.

But the author of this story is not George Orwell. It’s Representative Lamar Smith of Texas, Senator Diane Feinstein of California, and you.

Here’s what I mean: In June of last year, Representative Smith (R) introduced H.R. 5949, the FISA Amendments Act Reauthorization Act of 2012. Its purpose was to extend the FISA Amendments Act of 2008 for five years, continuing the government’s authority to collect data like this under secret court orders. The House Judiciary Committee reported the bill to the full House a few days later. The House Intelligence Committee, having joint jurisdiction over the bill, reported it at the beginning of August. And in mid-September, the House passed the bill by a vote of 301 to 118.

Sent to the Senate, the bill languished until very late in the year. But with the government’s secret wiretapping authority set to expire, the Senate took up the bill on December 27th. Whether by plan or coincidence, the Senate debated secret surveillance of Americans’ communications during the lazy, distracted period between Christmas and the new year.

Senator Dianne Feinstein (D) was the bill’s chief defender on the Senate floor. She parried arguments doggedly advanced by Senator Ron Wyden (D‑OR) that the surveillance law lacks sufficient oversight. My colleague Julian Sanchez showed ably at the time that modest amendments proposed by Wyden and others would improve oversight and in no way compromise security. But false urgency created by the Senate’s schedule won the day, and on December 28th of last year, the Senate passed the bill, sending it to the president, who signed it on December 30th.

The news that every Verizon call is going to the NSA not only vindicates Senator Wyden’s argument that oversight in this area is lacking. It reveals the upshot of that failed oversight: The secret FISA court has been issuing general warrants for communications surveillance.

That is contrary to the Fourth Amendment to the Constitution, which requires warrants to issue “particularly describing the place to be searched, and the persons or things to be seized.” When a court requires “all call detail records” to be handed over “on an ongoing daily basis,” this is in no sense particular. Data about millions of our phone calls are now housed at the NSA. Data about calls you make and receive today will be housed at the NSA.

The reason given for secret mass surveillance of all our phone calls, according to an unofficial comment from the Obama administration, is that it is a “critical tool” against terrorism. These arguments should be put to public proof. For too long, government officials have waved off the rule of law and privacy using “terrorism” as their shibboleth. This time, show us exactly how gathering data about every domestic call on one of the largest telecommunications networks roots out the tiny number of stray-dog terrorists in the country. If the argument is based on data mining, it has a lot to overcome, including my 2008 paper with IBM data mining expert Jeff Jonas, “Effective Counterterrorism and the Limited Role of Predictive Data Mining.”

The ultimate author of the American surveillance state is you. If you’re like most Americans, you allowed yourself to remain mostly ignorant of the late-December debate over FISA reauthorization. You may not have finished digesting your Christmas ham until May, when it was revealed that IRS agents had targeted groups applying for tax exempt status for closer scrutiny based on their names or political themes.

The veneer of beneficent government is off. The National Security Agency is collecting records of your phone calls. The votes in Congress that allowed this to happen are linked above in this post. What are you going to do about it?

I’m a participant in an online forum put on by Common Good this week about the age of zero tolerance for aspirin pills, bans on games of “tag,” and broken-thermometer lockdowns. From their description:

We entrust our children to teachers and principals with the expectation that they will be both educated and protected from harm. When, inevitably, incidents happen—especially when those incidents are tragic and well-publicized — communities often press for stricter rules and procedures. School administrations have reacted to the shooting at Sandy Hook Elementary School with extreme protectiveness; one school suspended a six-year-old for “pointing his finger like a gun and saying ‘pow,’” while another suspended two boys for playing cops and robbers.

Also featured: Lenore Skenazy, Frederick Hess, Megan Rosker, and Nancy McDermott. From my contribution:

When they “err on the side of safety” in absurd ways, schools reflect trends in the wider society. … Already, by ten years ago, British commentator Jenny Cunningham could write that “A significant body of research evidence now indicates that there has been a drastic decline in children’s outdoor activity and unsupervised play. For example, it has been calculated that the free play range of children — the radius around the home to which children can roam alone — has, for nine-year-olds in the UK, shrunk to a ninth of what it was in 1970. Perhaps most damaging is that a climate has been created in which all unsupervised play is regarded as high risk, and parents or teachers who allow it are seen as irresponsible.” Cunningham notes that families now tend to see the risks of being hit by traffic or (far less likely) abducted by strangers as ruling out outdoor play. “Yet, despite the increasing levels of worry, in reality children have never been safer.” Sound familiar?

I go on to mention CPSIA, the wildly overreaching 2008 law regulating children’s products in the name of safety, and the proliferation of requirements that innocuous everyday chemicals be accompanied by material-safety-sheet paperwork. My conclusion: “If these are the trends in the outside society, how likely is it that schools will be able to resist?”

Earlier this year, I wrote about Rep. Steven Palazzo’s (R‑MS) proposed constitutional amendment whose entire text reads as follows: “Congress shall make no law that imposes a tax on a failure to purchase goods or services.” So this would abolish Obamacare’s individual mandate “tax.”

Now we have movement in the Senate on this idea, with Marco Rubio (R‑FL) introducing the exact same language, calling it the “Right to Refuse” Amendment.

Anyone who opposes this amendment wants the government to have the power to tax people for not buying something—whatever that something is: an electric car, dental floss, a gun, or broccoli. It wasn’t clear until NFIB v. Sebelius, of course, whether the government constitutionally had this power—and Obamacare itself (as opposed to Chief Justice Roberts’s legislative rewrite) wasn’t written this way.

Obamacare delenda est.