Articles by Alex Harris

A graduate of Harvard College who wrote his senior thesis on the political philosophy of Robert Nozick and a student at Stanford Law School studying technology law, Alex Harris is actually one of the least nerdy contributors to the Technology Liberation Front. When Alex is not buried in law school work, he works as an Adjunct Fellow at the Competitive Enterprise Institute. Prior to receiving that haughty title, he was a Google Policy Fellow, prolific blogger, libertarian lolcat creator, and lowly intern at CEI. Before that, Alex was a Koch Summer Fellow for the Center for Constitutional Studies at the Cato Institute. He has been published in the American Spectator and writes for the Stanford Law School’s Center for Internet and Society’s publication, Packets. Now, Alex spends more time with his iPhone than with people.


Property as Privacy: The Old Supreme Court Did It Better

by on September 11, 2010 · 3 comments

Up until I began doing my reading for this fall’s Criminal Procedure: Investigation course, I largely bought the heroic Warren Court story of privacy and the Fourth Amendment.

The story is simple: The Supreme Court, concerned only with helping businesses through decisions like Lochner, had left people unprotected from warrantless searches and seizures. In decisions like Olmstead v. United States (holding that a warrantless wiretap did not violate the Fourth Amendment), the Court threw privacy under the bus. But, as with the First Amendment, Brandeis and Holmes dissented, presaging the arrival of the glorious Warren Court, which overturned Olmstead in Katz v. United States.

Though, unlike many FedSocers, I love the Warren Court and its expansion and constitutionalization of personal liberties both procedural and substantive, the heroic story just isn’t quite right.

Continue reading →

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Another great reason to revive the Fairness Doctrine

by on December 21, 2009 · 0 comments

As if we needed another. Over at Overcoming Bias, Robin Hanson points out that mandating balance leads to worse reporting.

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The Deontological Case Against Net Neutrality Regs

by on December 20, 2009 · 29 comments

We’ve spent a lot of time here at TLF talking about the sound economic arguments against net neutrality regulation. We argue that net neutrality regulation will result in worse consequences than leaving the internet relatively unregulated. But to me, the more important point is that net neutrality regulation is itself unjust.

Why do I make such a strong claim? Simply put, people own their stuff. People can decide what to do with their stuff. People can enter into mutually-consensual agreements about what to do with their stuff. As long as both parties agree on the terms, both parties are deciding what to do with the property they each bring to the table. All that is just. It is unjust, on the other hand, to take someone’s property. It is similarly unjust to use force upon someone (e.g. by taking their money, which is other property they own) as a punishment for doing something just. So, it would be unjust for me to reach into your wallet and take a “fine” from you because I don’t like that you sold your copy of Anarchy State & Utopia to Berin for what I think is far too low of a price. I could argue to you that Berin is giving you a bad deal or tell Berin to stop exploiting you, but it is unjust for me to steal from you to enforce my personal desires about the terms of your agreement. Continue reading →

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Sec. 230 is Required by Justice

by on August 21, 2009 · 13 comments

Alternate title – Sec. 230: Not just good for the consequences any more!

Since Sec. 230 has been a hot topic around here recently, I figured this would be a good time to fire up some controversy and cross-link to an old OpenMarket post. In it, I discuss the Principle of Intervening Action, a principle postulated by Alan Gewirth that states that we are responsible soley for our own actions. I argue that this principle is correct.

I mention its application to Sec. 230 (and to safe harbor under the DMCA), but do not lay out the argument explicity. Essentially, it’s this: if a user does something unjust, it is the user that should be held responsible. The website is not the one that performed the unjust action and thus cannot justly be punished for it. But perhaps PIA points in the opposite direction, in at least some cases. If a user orders a website to do something (e.g. posting an infringing video, though we can argue about whether that’s really unjust), PIA eliminates the “following orders” defense. If you do it, you’re responsible. So, is the user the one “doing” the action or is the user directing the site to “do” it?

Discuss (or Disqus)!

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What is “Regulatory Capture”?

by on August 20, 2009 · 12 comments

One of my favorite recurring themes here on TLF is the definitional dispute/clarification. We point out where a term has been used in many different ways and explain the positives and negatives of the various behaviors described by that term. I just did this with privacy.

Of course, it is somewhat pointless to argue about the “true” meaning of a term, but that’s not exactly what’s involved here. Yes, we libertarians can lament when terms that used to describe things we believe in, like “liberal,” “freedom,” “rights,” “choice,” etc., get appropriated by others and terms that used to describe things we don’t believe in, like “coercion,” get ascribed to us. There may be some battles we can win, some terms we can hold onto, but these disputes often end up with two ships passing in the night.

But I’m talking about something a little different. Lots of terms that have, or get, normative connotations – that sound like they describe something good (think “democracy”) or bad (think “terrorism”) – get way overbroadened. Speakers use such terms to describe nearly anything (as long as it’s vaguely related to the original meaning) to which the speaker wants to ascribe the good/bad connotation. We here on TLF catalog those various ways such terms have been used – break the term down – and describe which ways are really good and really bad. As I said, I just did this with privacy. If this were a more lawy, as opposed to techy, blog I’d do it with “activism,” one of my pet peeve words. (Maybe I’ll do it anyway; after all, I posted on the best and worst Supreme Court decisions even though they weren’t especially tech-focused.)

But today, it’s “regulatory capture.” We have discussed it a bit recently, including just tonight. Tim Lee did some great posts on it back in the day. It’s definitely a recurring theme here. We seem to have something fairly specific in mind when we use the term. As Tim put it, it is when “established businesses argue in favor of regulations that they perceive as hurting their competitors (often smaller competitors) more than themselves.” Indeed, I argued with a commenter on one of Wayne’s posts that this definition that makes the most sense given the meanings of the words:

Regulatory capture is when businesses capture regulatory actions and use them as tools, backed by the force of government, for imposing burdens on their competitors. Businesses banding together to oppose government intrusion is not “capture.” Fighting an enemy is not the same as capturing him and using him to do your bidding…

Call Tim’s and my definition the “appropriation” definition. Continue reading →

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Advertising and Privacy: No Right to Control What You Give Away

by on August 12, 2009 · 27 comments

In my last post, I touted an often-ignored benefit of targeted ads: that they directly enhance the browsing experience, compared to seeing dumb ads. This post argues that no one has a “right to her data” that ad-targeting takes away.

“Privacy” is a word of many meanings. The best explanation of the myriad ways the word has been used I’ve seen came from TLF’s own Jim Harper five years ago. People have a right to privacy in some senses, but not in others. They have a justice-based right (a political moral right) to freedom from government intrusion – the broad sense of privacy espoused in cases like Lawrence v. Texas. And they have a justice-based right to not have to give up information about themselves to the government, the sort of right violated by NSA wiretapping and that should be protected by the Fourth Amendment – the kind of right espoused in cases like Katz v. United States.

We do not have any justice-based right, however, to control what is done with those things we voluntarily give away to private individuals. If I sell you or give you my laptop, without any restrictions on your use, I have no rights-based complaint if you use it to do something I find objectionable, such as reading Perez Hilton. Nor do I have a rights-based complaint if you take the information I left on it and use it for your purposes. Even if that information is about me. Continue reading →

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I Love Targeted Ads!

by on August 12, 2009 · 22 comments

We here at TLF have long been pointing out the benefits of targeted ads. But recently, we have focused on what I call the “supply-side” benefits – that targeted ads make free content possible by increasing the price advertisers are willing to pay for each pageview and therefore the amount of revenue content providers collect. That is a crucial point, and one that has yet to be absorbed by Congress, the FTC, and even other experts in Internet policy.

But we haven’t talked a lot about what I call the “demand-side” benefits – that targeted advertising is better for the viewer, directly, than non-targeted advertising. We have been too quick, I think, to legitimize the other side’s concerns, which they label under the heading “privacy,” by discussing the situation as one of trade-offs and TINSTAFL.

Our arguments have sounded like those supporting free trade agreements because of the trade barriers the other countries are lifting, implying that we should not remove our own trade barriers unless other countries agree to remove theirs. This is the wrong argument to make, for the simple reason that trade barriers don’t just hurt the economies of other countries; they damage our own. As my economics professor, Jeff Miron, put it, when everyone is shooting themselves in the foot, you don’t wait until you can get everyone else to agree to stop with you; you just let go of the gun. Continue reading →

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Export Controls: Impediments to Tech Free Trade

by on June 18, 2009 · 19 comments

I’ve spent the past couple of months interning for a large Silicon Valley technology company doing export compliance work. The company I’m working for does an enormous amount of its business overseas. And it exports, well, technology products, many of which are controlled. Laws ostensibly designed to prevent terrorism and proliferation in fact control way more than weapons and chemicals – indeed, they regulate even extremely mundane goods like servers, software with encryption, and the technical data used to design and build such products.

As a result, it has to employ large numbers of people to comply with the US’s, the EU’s, and other countries’ export control regimes. The US’s is particularly complicated, with a long list of prohibitions, some which can be circumvented if an exporter gets a license and exceptions to the licensing requirement (based on the classification of the goods, the destination country, the end-user, and the end-use). In addition, there are lists of parties – companies, universities, and individuals – with whom no company can do business. Companies that provide lots of goods and services: hardware, software, courseware for training on the products, etc., have to screen those lists many times – when a customer buys a product, when she signs up for training, when a part is shipped from a manufacturer, etc. They also have to spend lots on classifying their products and devising schemes to ensure compliance at every step in their complicated supply and distribution chains. And, because of the US “deemed export” rule, they often cannot share information with their US-based engineers who are citizens of other countries (who were hard enough to obtain visas for in the first place!).

And, yet, the US system – with all its complexity – still requires less effort than some other countries’, which require a license to export every controlled good. That entails significant delay and processing costs. Unfortunately, too little attention has been paid to these costs on doing business internationally when passing feel-good “anti-terrorism” and “anti-proliferation” laws and regulations.

As Tim Lee points out, some of the more ridiculous encryption controls have finally gone away, but as technology advances, more and more products will fall into a category (which are often based on technical performance) that requires a license. So, as American products improve, the costs of sending them overseas increases! One would think politicians supposedly worried about the trade deficit would see this as counterproductive to their goals of increasing US exports and reducing imports… but that’s politics!

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The DC Circuit’s Opinion Affirming the FCC’s Boneheaded Ban on Competition

by on March 15, 2009 · 9 comments

Better not be offering incentives!

As I previously reported, the DC Circuit recently upheld a decision by the FCC to forbid customer retention practices used by Verizon to incentivize its customers to stay with the carrier rather than leaving for a VOIP provider. In the earlier post, I analyzed the bad economics of the FCC’s ban. In this post, as promised, I go into greater detail on the court’s decision affirming the FCC.

The latest issue of the Center for Internet and Society’s publication, Packets, has arrived and with it my summary of the case. The Packets piece provides a more neutral (but detailed) summary of the DC Circuit’s decision, without much analysis.

The big question before the court was whether what the FCC did was really pursuant to the Telecommunications Act, which forbids a telco “that receives or obtains proprietary information from another carrier for purposes of providing any telecommunications service” from using the information for a marketing purpose. If not, then essentially the FCC just went AWOL; instead of enforcing the law, as it is supposed to, it simply made its own law.

Indeed, that is exactly what happened here. The natural reading of the language, as the court admits, is contrary to the FCC’s ruling. To use an example employed by the court, when one says “Joe received information from Mary for purposes of drafting a brief,” the court reasoned, “it is overwhelmingly likely that the speaker expects Joe to do the drafting.” But Verizon is getting the information from other telcos not in order to provide their customers with phone service, but to cut off service. It is the competitors who are using the information to provide phone service. Mary is drafting the brief, so the statute doesn’t apply! The court never fully explains why it refuses to limit the statutory language to its natural meaning – saying only that one could grammatically read it the other way. Continue reading →

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Craig’s List Sued for Prostitution

by on March 5, 2009 · 30 comments

CNN reports:

An Illinois sheriff filed a federal lawsuit Thursday against the owners of craigslist, accusing the popular national classified-ad Web site of knowingly promoting prostitution.

The sheriff is upset that the site maintains a bulletin board system which is very lightly policed by its creators. It is little more than a forum for people to place their own advertisements. Thus, principles of caveat emptor abound, as anyone who has tried to find an apartment through the service knows.

Without craigslist, back to street walking

More importantly, Craig’s List is perhaps the best example of a site that should be immune from prosecution for the actions of its users under Section 230 of the Communications Decency Act. It exercises little control over what its users do, and that’s what makes the service both valuable and free. If the company had to hire thousands more people to examine every post that comes before it, its service would become more like Apple’s iPhone/iPod Touch App Store.

Section 230 allows websites like Craig’s List, Google, YouTube, Blogger, and pretty much every other user-driven Web 2.0 site the security to know they can operate free of lawsuits about what someone else, their users, did. Adam Thierer goes so far as to argue that it makes possible a real world analog for Nozick’s meta-utopia. Moreover, it is philosophically required by the tenet of justice known as the “principle of intervening action.”

Yet attorneys general and other politicians have been seizing on high-profile internet-related misfortunes like the MySpace suicide to push against Section 230’s safe harbor promise. Adam Thierer recently gave an excellent summary of where the section may be heading in the US. Other countries are even worse.

Perhaps even more dangerous than overt legal erosion of Section 230 through bad precedents (there are still some judicial defenders of the section out there, after all) is its covert destruction through coerced “agreements” forced upon ISPs and websites by AGs. They started popping up all over the place this summer and there is no end in sight. Indeed, CNN pointed out:

Craigslist entered into an agreement with 43 states’ attorneys general in November to enact measures that impose restrictions on its Erotic Services section. The agreement called for the Web site to implement a phone verification system for listings that required ad posters to provide a real telephone number that would be called before the ad went public.

Let’s hope the new administration stops the trend and puts life back into Section 230.

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