Recently I’ve noticed an interesting tension in libertarian theory. As I’ve mentioned before, I just completed work on a new paper on eminent domain abuse in Missouri that will be published by the Show-Me Institute next month. The basic conclusion of my paper is that eminent domain should only be allowed for public use—that the government should have the power to take someone’s property (with compensation) to build a road or a courthouse, but not to build a Wal-Mart or a shopping mall. One of the interesting wrinkles to this issue is what to do about public utilities: railroads, power lines, oil and gas pipelines, phone and cable services, etc. Like roads, these facilities are subject to serious holdout problems. And since the mid-19th century, the courts have held that takings for the construction of such infrastructure is a public use, provided that the railroad (or later other service) acted as a common carrier. As I understand it, for precisely this reason railroads were subject to certain common carrier requirements under the common law before the creation of the ICC.
That’s the tack we libertarians tend to take today. For example, here in Missouri I played a small role in drafting this proposed amendment to the Missouri constitution, which reads, in part, “property may be taken for transportation or utility facilities or transmission systems used by a railroad, regulated utility or rural electric cooperative.” When Adam wrote his magnum opus on the installation of FiOS in his neighborhood, he mentioned that Verizon came along and ripped up his yard not once but twice. He didn’t say for sure, but it sounds like they did it without getting his permission first. These comments suggest that the law gives Verizon permission to tear up peoples yards and even install new cabinet cases on their property without their permission. And I got the impression (Adam correct me if I’m wrong) that he wasn’t overly troubled by this invasion of his property rights.
But that brings me to my question: what does the “regulated” in “regulated public utility” mean? If in the ideal libertarian world telecom firms wouldn’t be subject to any regulations at all, how would we distinguish between those that are allowed to rip up Adam’s yard and those that are not? Should anyone who declares himself a public utility have the power to rip up anyone else’s yard? Or should no one be allowed to rip up Adam’s yard without permission?
Conversely, if some regulations are justified by the public use limitations, which regulations are they, and how do we distinguish good regulations from bad ones?
Why is the the Wall Street Journal my favorite paper in the world? Because right there in the middle of page A1 today is a story about the expanding market for Beer Pong equipment and contests! This is important stuff people! And just take a look at the sophisticated graphic they had one of their artists put together to explain the rules of Beer Pong. And there’s a video on the site also that was shot at a recent official Beer Pong tournament. Made me sentimental about my days at Indiana University in the late 80s where I was part of endless Beer Pong tourneys. And to think that now there’s an entire industry being build around this “sport!” God Bless America. [Source: Wall Street Journal]
Sorry for the Wired-heavy morning, but they’ve had a lot of great stuff on electronic privacy and security lately. Check out this summary of the FBI’s eavesdropping network. This is the network the FBI built after Congress passed CALEA in 1994. The information came to light thanks to a FOIA request by the Electronic Frontier Foundation.
The Director of National Intelligence Michael McConnell told an El Paso reporter that the nation’s spy laws needed to be loosened because it takes 200 hours to prepare a FISA warrant for the special spy court.
In 2006, the government filed 2,181 such applications with the Foreign Intelligence Surveillance court. The court approved 2,176. 2006 FISA Warrant Applications.
That means government employees spent 436,200 hours writing out foreign intelligence wiretaps in 2006. That’s 53,275 workdays.
Let’s assume dedicated government employees work 40 hours a week with two weeks off a year. That means there were 218 government employees with top secret clearances sitting in rooms, writing only FISA warrants.
Singel characterizes this as “a lot of monkeys,” but it doesn’t strike me as a very big number. If each employee costs the government $200,000/year, then that means complying with FISA cost the federal government less than $50 million. You could increase the volume of FISA requests by a factor of 20, bringing the cost to $1 billion, and it would still be only about 2 percent of the intelligence budget. So even assuming McConnell is telling the truth about the paperwork burden, it hardly seems like an unreasonable burden on the intelligence community.
That’s part of an excellent post on Wired‘s Threat Level blog, pointing out how silly the notion of “cyberwar” is:
In truth, U.S. network operators already deal with DDoS attacks of a similar, or greater, magnitude than the ones that hit Estonia. Peters argues that critical U.S. military networks and weapons systems could fall. Malware is getting pretty sophisticated, I’ll admit, but I’ve yet to see a bot that can send packets from the public internet to a classified, air gapped Air Force network. If it exists, it can also do your laundry and walk your dog.
Peters even cracks open the old chestnut about American facing an electronic “Pearl Harbor.” Cue Ricky Martin on your Rio and it could be 1999 all over again.
Erstwhile roommate and recent podcast guest Julian Sanchez will be on a panel at the Center for American Progress today at 10:30. If you’re not in the DC area, you can apparently catch it on C-SPAN II.
Over at Ars Nate Anderson makes an important point that hadn’t occurred to me: The cell phone unlocking exception I mentioned in my last post applies only to the act of circumvention, not to trafficking in circumvention devices. That means that you’re safe if you unlock your own iPhone, but if you develop software or hardware to help others do so, you could wind up in legal hot water under the DMCA.
Of course, that depends on whether unlocking your cell phone is an act of circumvention in the first place. It’s not obvious that cell phone locks “effectively controls access” to a copyrighted work. Perhaps AT&T could argue that unlocking your phone is the first step toward pirating ringtones, but it should be possible to develop a hacking tool that enables carrier-switching without enabling ring-tone piracy.
In any event, this is almost certainly not the sort of situation Congress had in mind when they passed the DMCA.
I was going to elaborate on Cord’s post, but as luck would have it other people have beaten me to it. First, Tom Lee points out that phone unlocking is one of the DMCA exemptions granted by the Library of Congress in its triennial review process. So iPhone hackers are safe from the DMCA. However, there are other potential issues:
Apple may still have some claim against the iPhone hackers. That’s because circumvention devices typically employ code that’s the property of the device designer. Unless I’m mistaken, the DMCA exemption doesn’t grant anyone the right to use or redistribute others’ code. It’s also possible that circumventing the protection may necessitate the violation of patents held by the device designer.
A similar situation exists in the world of Xbox modding. Until recently it was easy to buy a modchip online. Properly installed, this allows you to turn your Xbox into a device that can run Linux, emulate older consoles, or act as a media center (and, yes, you can play pirated games, too).
Is it even possible for companies to strike exclusive deals when teams of nerds across the country have been at work on hacking the iPhone since it’s release in late June? Engadget declared the Apple/AT&T exclusivity deal dead at noon on Friday, so sorry if this story is a little old, but now that media outlets like Wired, BusinessWeek, and CNN are covering the story, I thought that TLF should also weigh in.
I don’t know if I should view this as good news, bad news, or just another lesson in the folly of trying to lock-out the tech set from something as desirable as the iPhone. Exclusivity deals, from a policy standpoint, are like most any other private, legal arrangement to me–they’re perfectly fine. However, the corporate managers of the world may want to start reconsidering exclusivity arrangements that rely on hack-proof tech. Why? Because no such thing exists.