This article is full of bad ideas. Read to the end and you’ll see why I posted about it, risking that it would emerge from the obscurity it deserves.
July 2008
Sen. Obama and I faced off in the Kansas City Star last week over the FISA bill. Well, sort of. Here are Obama’s comments in defense of the legislation. And here is my response, lifted from this blog post. So we’ve got Sen. Obama defending the White House position on illegal surveillance, while I got tapped to defend civil liberties. Something to keep in mind next time someone accuses the Cato Institute of being a right-wing think tank.
Did you know that one of last year’s winners of the Nobel Prize in economics was a software patent critic? I didn’t. Looks like a good paper. I wish I’d noticed it back when Maskin’s Nobel prize was announced.
On Julian‘s recommendation, I’m reading Peter Swire’s The System of Foreign Intelligence Surveillance Law, a good treatise on the basics of surveillance law. One of the things I didn’t realize is how rare non-FISA wiretapping actually is:
Comments I have heard in public from knowledgeable persons suggest that there has been ongoing expansion of who is considered an “agent of a foreign power.” Consider an individual who works in the United States for the Cali drug cartel. Is that person an “agent of a foreign power?” The Cali cartel is a highly organized group that physically controls a substantial amount of territory in Colombia. Given these facts, one might well argue that the Cali cartel is more of a “foreign power” than the amorphous Al Qaeda network. If one accepts the Cali cartel as a “foreign power,” and a major smuggler as an “agent of a foreign power,” would a street-level cocaine dealer also qualify as its agent? There is no clear line in the statute stating that the dealer would not be so considered. To take another example, what about the activities of the so-called “Russian mafia?” Many organized crime groups have links to overseas operations. How small can the links back home be to still qualify that group’s actions as on behalf of a foreign power?
These examples, it turns out, go to the heart of whether Title III will continue to be a significant part of the overall American system of electronic surveillance. The threat of organized crime was a principal justification in 1968 for the extraordinary intrusion of performing wiretaps under Title III. Over time, narcotics and organized crime cases have constituted the vast bulk of federal Title III wiretaps. In 2002, for instance, narcotics cases numbered 406 (81%) and racketeering cases fifty-nine (12%) of the 497 total federal wiretaps. Yet an expansion of the definition of “agent of a foreign power” could render Title III wiretaps almost obsolete. Many heroin, cocaine, and other drug cases are linked to imported narcotics. Many organized crime cases in this era of globalization have significant links to overseas activities. FISA orders already outnumbered Title III orders in 2003.302 If most drug cases and organized crime cases shift to the secret world of FISA, then the constitutional teachings of Katz and Berger may have little effect.
WASHINGTON, July 2 – Broadband growth in the United States has effectively stalled over the past five months, a possible victim of the economic slowdown, according to a report released Wednesday by the Pew Internet & American Life Project.
Some 55 percent of all adult Americans now have a high-speed internet connection, or a broadband connection, in their home, according to the report, “Home Broadband Adoption 2008.”
That number compares with 47 percent of adult Americans with broadband in early 2007, and 54 percent in December 2007. Hence broadband growth over the previous 12 or 13 months has dramatically tapered off.
The growth rate in broadband adoption from 2007 to 2008 was 17 percent. That compares favorably to the 12 percent growth recorded in the 2006 to 2007 timeframe, according to Pew’s annual studies in 2007 and 2008.
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[Note: This is the fifth in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which turns 30 this week. Here are parts 1, 2, 3, and 4. This installment is a joint editorial I released today with my friend John Morris, general counsel for the Center for Democracy & Technology].
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I don’t know how I missed it, but Reason‘s Ron Bailey had a great interview with libertarian entrepreneur Peter Thiel back in May. There’s a lot of discussion of the singularity, a concept I’m finding less coherent the more I think of it. The basic concept is that at some point computers will get powerful enough that we’ll be able to build machines that are smarter than the smartest human, and at that point history becomes unpredictable because the smarter-than-human robots will start doing things that we can’t understand with our puny human brains.
It seems to me that this story has three really serious problems. Continue reading →
Some readers might be interested in Cato’s 2007 annual report, which is now available online. Most of the report summarizes the excellent public policy work my colleagues did during 2007. Cato’s financials and a list of corporate and foundation donors can be found on pp. 46-47. The corporate sponsors with significant interests in technology policy are: Comcast, the Consumer Electronics Association, Freedom Communications, Microsoft, and Time Warner. Cato’s 18 corporate sponsors together contributed just 2 percent of the budget in 2007.
[Note: This is the fourth in a series of essays about the legacy of the Supreme Court’s FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court’s reasoning in Pacifica as it stood in 1978. This installment will examine why that logic is even more misguided in light of modern developments.]
Whatever legitimacy Pacifica’s “pervasiveness rationale” might have once had, it has been largely eroded by modern media developments.
First, the pervasiveness rationale for media regulation fails today because new content tailoring technologies make it easier than ever before for parents to manage media in their homes and in their lives of their children. It is impossible to consider video programming an “intruder” in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.
When Justice Stevens argued in Pacifica that broadcast signals represented an “intruder” in the home, he supported that claim by noting that: “Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” While that may have reflected the state of technology and TV viewing at the time, it is completely at odds with modern realities. In 1978, the viewing experience was a more passive affair and consumers had very few ways to control that experience unless they turned off the television altogether. Today, by contrast, viewers (including parents) have the tools to “tune in and out” at will, and they have abundant “prior warnings” about program content thanks to the existence of ratings, program information, and electronic program guides. These tools help parents restrict or tailor the viewing experience in advance according to their values and preferences.
Continue reading →
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