Articles by Jim Harper

Jim HarperJim is the Director of Information Policy Studies at The Cato Institute, the Editor of Web-based privacy think-tank Privacilla.org, and the Webmaster of WashingtonWatch.com. Prior to becoming a policy analyst, Jim served as counsel to committees in both the House and Senate.


In my Cato paper, “Publication Practices for Transparent Government,” I talked about the data practices that will produce more transparent government. The government can and should improve the way it provides information about its deliberations, management, and results.

“But transparency is not an automatic or instant result of following these good practices,” I wrote, “and it is not just the form and formats of data.”

It turns on the capacity of the society to interact with the data and make use of it. American society will take some time to make use of more transparent data once better practices are in place. There are already thriving communities of researchers, journalists, and software developers using unofficial repositories of government data. If they can do good work with incomplete and imperfect data, they will do even better work with rich, complete data issued promptly by authoritative sources.

We’re not just sitting around waiting for that to happen. Continue reading →

Attendees at the State of the ‘Net conference will be thrilled to know that Larry Downes will be making an encore performance Wednesday afternoon, January 23rd, in the Rayburn House Office Building. The noontime briefing is entitled “A Rational Response to the Privacy ‘Crisis’.” It’s appropriately named because he’ll be discussing ideas from his recent Cato policy analysis: “A Rational Response to the Privacy ‘Crisis’.”

We don’t expect news reports to exhibit the tightest legal reasoning, of course, but Sunday’s New York Times story on location privacy made a runny omelet of some important legal issues relating to privacy.

The starting point is United States v. Jones, a case the Supreme Court decided last January. The Court held that government agents violated the Fourth Amendment when they attached a GPS tracking device to a vehicle without a warrant and used it to determine the location of a suspect for four weeks. Location information can be revealing.

“Some advocacy groups view location tracking by mobile apps and ad networks as a parallel, warrantless commercial intrusion,” says the story. A location privacy bill forthcoming from Senator Al Franken (D-MN) “suggests that consumers may eventually gain some rights over their own digital footprints.”

Jones was about government agents—their freedom of action specifically disabled by the Fourth Amendment—invading a recognized property right (in one’s car) to gather data. There is little analogy to location tracking by mobile devices, apps, and networks, which are privately provided, voluntarily adopted, and which violate no recognized right. Indeed, their tracking provides various consumer benefits. The Times piece equivocates between the government’s failure to get a legally required search warrant in Jones and uses of data that some may feel “unwarranted,” in the sense of being “uncalled for under the circumstances.”

The first line of Larry Downes’ new Cato Policy Analysis, “A Rational Response to the Privacy ‘Crisis’,” could have been written for the Times‘ sloppy analogy:

“What passes today as a ‘debate’ over privacy lacks agreed-upon terms of reference, rational arguments, or concrete goals,” Downes says. The paper examines how the “creepy factor” permeates privacy debates rather than crisp thinking and clear-headed examination.

It’s not that location tracking doesn’t generate legitimate privacy concerns. It does. People don’t know how location information is collected and used. They don’t always know how to stop its collection. And the future consequence of location information collected today is unclear. But the capacity of private actors to harm individuals with location data is limited. Their incentive to do so is even smaller. And avoiding location tracking is simply done (at significant costs to convenience).

As Downes’ piece illustrates, we’ve seen this kind of debate before, and we’ll see it again: A particular innovation spurs privacy concerns and a backlash (whipped by legislators and regulators). A negotiation between consumers and industry, facilitated by the news media, advocates, and a variety of other actors, produces the way forward. As often as not, the way forward is a partial or complete embrace of the technology and its benefits. Plenty of times, the threat never materializes (see pervasive RFID).

Downes explores the legal explanation for what happens when consumers adopt new technologies that use personal information to produce custom content and services—this question of “rights over … digital footprints.” He finds that licensing is the best explanation for what is happening. When consumers use the many online services available to them, they license data that they might otherwise control.

The legal framework Downes puts forward sets the stage for iterative, contract-based development of rules for how data may be used in the information economy. It cuts against top-down dictates like Franken’s proposal to regulate future technologies today, knowing so little of how technology or society will develop.

Ultimately, no legislature can resolve the deep and conflicted cultural issues playing out in the privacy debate. Downes characterizes that debate as revealed tension between Americans’ Davey Crockett side—the privacy-protective frontiersmen—and our collective Puritanism. We are participants in and parts of a very watchful society.

It’s worth a read, Larry Downes’s “A Rational Response to the Privacy ‘Crisis’.”

This morning, I’m gearing up for Thursday’s noon-time Cato book forum on the Mercatus/Jerry Brito book, Copyright Unbalanced: From Incentive to Excess.

With the recent release and withdrawal of a Republican Study Committee memo on copyright policy, there is even greater tension around the issues than usual. So here’s a line from the planning email I sent to panelists Jerry Brito, Tom W. Bell, and Mitch Glazier.

Given how hot the issues we’ll discuss tend to be, I’ll emphasize that we’re all friends through the transitive property of friendship. I’ll be policing against ad hominem and stuff like that coming from any side. In other words, don’t bother saying or implying why a co-panelist thinks what he does because you don’t know, and because I’ll make fun of you for it.

It might be worth coming just to see how well I do with my moderation duties. Whatever the case, I think our panelists will provide a vibrant discussion on the question of where libertarians and conservatives should be on copyright. Register here now.

I find myself delighted, but also mildly disappointed, by a short speech making the rounds on the Internets, given by Amelia Anderstotter, Swedish Member of the European Parliament representing the Pirate Party. For its forcefulness, the speech misses a key distinction about which advocates of freedom, which I think members of the Pirate Party mean to be, should be very clear.

It’s a delightful speech because it’s a crisp rejection of the authoritarian forces that seek to control communications. In doing so, they hinder the development of culture. The woman delivering the speech is equal parts young, serious, and articulate. I reject authoritarianism, too, and I work to eliminate or hold at bay many of the same forces as Anderstotter, so that civil society can organize itself as it will.

I’m nonplussed, though, by the line that has gotten the speech so much attention.

“I would like to paraphrase George Michael from I think 1992,” she says. “‘Fuck you, this is my culture.’ And if copyright or telecommunications operators are standing in the way, I think they should go.’”

In one sense, the bracing language works. It is what generated a lot of interest in her words. But the context of the quote does not work as well. You see, when confronted with paparazzi photos showing him engaged in late-night cruising at a London park, Michael said, “Are you gay? No? Well then Fuck Off! Because this is my culture and you don’t understand it.” That is vituperation when confronted about arguably unhealthy behavior. It is not the conformity-rejecting line you might have expected in “Freedom! ’90,” presaging Michaels’ dispute with Sony over the release of Listen Without Prejudice Vol. 2.

One should certainly be free to act as Michael did among a community of consenting adults, and to reject criticism as he did. But when a speaker’s job is to persuade skeptics, one might choose an example of contempt for authority that the audience can easily embrace. With this quote, Anderstotter didn’t seat her rejection of authority firmly in logic and justice.

That’s a narrow point about influence, but the real weakness of the speech is in its internal logic. In the name of freedom, she calls for authoritarian regulatory interventions on private-sector network operators.

“[V]ery few top political figures in the world have acknowledged,” she says, that free speech and human rights protection “will require regulatory intervention on some private sectors.”

And later: “The control over communities and the ability to shape them must be with the communities themselves. Infrastructure must be regulated to enable that ability and such autonomy.”

Note how her use of passive voice hides the actor. Infrastructure “must be regulated” to achieve her agreeable goals. By whom? Perhaps one imagines beneficent gods fixing things up, but the regulations she seeks will almost certainly come from “the Governments and … public officials and lobbyists” that she says she wishes would fuck off.

A coherent system of rights does not have internal conflicts. If your freedoms come at the expense of someone else’s, you haven’t sorted out yet what “freedom” is.

Anderstotter is on the right track in many respects. Timid though the debate may be from her perspective, the scope and duration of copyright protection is again controversial among U.S. libertarians and conservatives. But her rejection of authoritarianism is an implicit embrace of authoritarianism at the same time.

With a little sorting out, she and the Pirate Party could get it right. Until then, the cultural reference she brings to mind for me is “meet the new boss, same as the old boss.”

It’s time to roll out transparency grades!

This isn’t anything innovative, but part of my strategy for improving government transparency is to give public recognition to the political leaders who get ahead on transparency and public disapprobation to those who fall behind. So I have a Cato Institute report coming out Monday that assesses how well government data is being published. (Oversight data, that is: reflecting deliberations, management, and results.)

I went ahead and previewed it on the Cato blog last night. The upshot? I find that President Obama lags House Republicans in terms of data transparency.

Neither are producing stellar data, but Congress’s edge is made more acute by the strong transparency promises the president made as a campaigner in 2008, which are largely unrealized. My pet peeve is the lack of a machine-readable government organization chart, not even at the agency and bureau level. The House is showing modest success and promising signs with some well structured data at docs.house.gov and good potential at beta.congress.gov.

I hustled to get these grades out before the election, and maybe there are one or two marginal voters who this study might sway. How it might sway them is an open question, and I’ve had some interesting reaction to the release of the study, such as: Is this electioneering? Shouldn’t there be an assessment of Romney on transparency? Continue reading →

Worst. Sentence. Ever.

by on October 28, 2012 · 0 comments

Here it is:

In an era where individuals take to social networks to not only connect with one another, but also share experiences, the “statusphere” as I call it, is transforming a media ecosystem into a very personal EGOsystem.

Let’s start with the awkward phrasings.

An “era” is a time-period, so you’d modify it with “when” not “where.” And why not simply begin the sentence with “When”? Those four letters could have communicated the same thing as the first four words.

Then there’s the tongue-twisting staccato of putting a prepositional phrase that starts with “to” in series with an infinitive. And not just any infinitive: a split infinitive. (I don’t think it’s always wrong to split an infinitive, but there was no need to do so here.)

The parallel between “connect” and “share” should be signaled by saying “to share” rather than letting “share” dangle eight words from the “to” signal.

The failure to set off “as I call it” with commas at both ends makes it unclear whether the author is coining this term in the first instance or distinguishing his version of the term from someone else’s.

And shifting to substance: that term—”statusphere.” Really? No.

The “-sphere” or “-osphere” suffix is a played-out meme generator.

But that is not the only meme plopped in our laps. We also have the unpunny meme, “EGOsystem.”

Oh, I get it. People are too self-oriented on social networks. (The effort is evidently to make an obvious notion seem ready for the cover of Wired circa 1995.)

My point? I haven’t got one, other than: “If you write, learn to write.” And perhaps, “Let your original ideas shine through as clear expression rather than dressing old ideas in gaudy, new words.”

This has been my review of the second sentence in a piece called “The Erosion of Privacy and the Rise of Publicness…and why it’s a good thing” (pre-existing overdone meme, capitalization fail, and indeterminate reference all in original).

Now I’ll go see if I can get through the next sentence.

That was the response of a friend currently in Rwanda who had issued a Facebook plea for someone to upload the weird “Innocence of Muslims” video to Dropbox.

“Oh, where is the stupid internet in Rwanda?????” she exclaimed.

In typical snark, I had asked, “What do you connect to Dropbox with? Tin-can on string?”

She actually has Internet access, but she finds YouTube so much less reliable than other platforms that she asks friends to upload YouTube videos elsewhere.

I anecdotally find YouTube videos to be clunky downloads compared to others. Quite naturally, I watch fewer videos on YouTube and more on other platforms. I don’t know, but guess, that Google has made some decision to economize on video downloads—a high percentage of people probably watch only the first third of any video, so why send them the whole thing right away?—and that its imperfect implementation has me watching the spinning “pause” wheel (or playing “snake”) routinely when I think a YouTube offering would be interesting.

Would the Google of five years have allowed that? It’s well known that Google recognizes speed as an important elements of quality service on the Internet.

And this is why antitrust action against Google is unwarranted. When companies get big, they lose their edge, as I’m guessing Google is losing its edge in video service. This opens the door to competitors as part of natural economic processes.

Just the other week, I signed up with Media.net and I’ll soon be running tests on whether it gets better results for me on WashingtonWatch.com than Google AdSense. So far so good. A human customer service representative navigated me through the (simple) process of opening an account and getting their ad code.

These are anecdotes suggesting Google’s competitive vulnerability. But you can get a more systematic airing of views at TechFreedom’s event September 28th: “Should the FTC Sue Google Over Search?

In the worlds of technology and government, I’m fond of joking, paranoia is just having a long time-horizon. Advances in data processing will make identifiable what is now anonymous. That “voluntary” pilot program will become full-fledged and mandatory.

But we need not apply the paranoid principle to the White House’s handling of the petition I started a few weeks ago asking the White House to have TSA follow the law. The petition ended on time. There’s no good evidence that its ending was hastened to cut off a late run at getting to 25,000 signatures.

Some folks had gotten the idea that we would have until midnight last Thursday, but it expired around mid-day. That’s about the same time that I created the petition weeks earlier, which is consistent with my assumption that the system is designed to expire petitions automatically when the time allowed for them to run has elapsed.

We could kvetch about losing some momentum when the petition function went down for a few hours around the time a great story came out on Wired’s Threat Level blog. But the folks at Whitehouse.gov added a full day to all petitions to make up for the maintenance outage. The time to complain was then, and I didn’t, so that complaint has expired.

There’s lots of other stuff that is interesting about all this. Continue reading →

Steve Titch gave you a thorough run-down last week. Now Tim Carney has a quick primer on the push by big retailers to increase tax collection on goods sold online.

S. 1832, the Marketplace Fairness Act currently enjoys no affirmative votes on WashingtonWatch.com. Good.