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.

In December, the Fourth Circuit upheld the conviction and 20-year sentence of a man who downloaded pictures, drawings, and text emails depicting minors engaged in sexual acts. Receiving obscene depictions of “a minor engaging in sexually explicit conduct” is prohibited by 18 U.S.C. § 1466A(a). The court held the statute constitutional on its face, and as applied to downloading materials from the internet.

Receiving via the internet, the court said, is unlike mere possession in one’s home, as is protected by the First Amendment and Stanley v. Georgia, but is rather trafficking in commerce and so can be constitutionally prohibited. Of course, it is very easy to inadvertently “receive” obscene materials through the internet, whether in one’s Spam folder or on a pop-up, but the court simply hoped that inadvertent access would not be targeted for prosecution, because the statute requires knowing access. Continue reading →

The Supreme Court building (thank Chief Justice Taft!)During my summer internship at CEI, a couple of us interns discussed the book Cato’s Robert Levy published last May, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. We looked at Levy’s list of the worst decisions and sent each other lists of our own. Now that I’m taking ConLaw, I feel as though the time has come to post my lists of the twelve worst and the twelve best Supreme Court decisions of all time. It is by no means an exhaustive list. My inclusion of different cases than Levy does not indicate that I disagree with his assessment that those decisions are terrible – just maybe not as bad as the ones I select.

The Dirty DozenThe Worst:

  1. The Slaughter-House Cases (1873). The very worst decision ever made by the US Supreme Court. Eviscerated the 14th Amendment only five years after its adoption. It is best known for reading the Privileges or Immunities Clause, which was supposed to be (and could have been) a vehicle for both incorporation and unenumerated rights, out of the Constitution. But it also wrote out the Due Process Clause and the Equal Protection Clause, though those two clauses eventually crawled back into existence, to a degree.
  2. Katzenbach v. McClung (1964). It was tough to decide which of the various cases reading the Commerce Clause expansively enough to permit Congress to pass any law it desires, thus destroying the basis of the federal government as one of defined and limited powers to include. But McClung seems to be the most expansive in both its result and its holding.

Continue reading →

Congress investigates ETFs

Bureaucrash has just posted a new round of libertarian lolcats. Many involve tech policy. Check them out if you’re in the mood for some feline-and-political-commentary-based hilarity!

Copyright and Coase

by on February 13, 2009 · 24 comments

copyright balancingOne of the biggest problems with the present copyright system is transaction costs, inhibiting Coasian bargaining. If I want to make a movie and have to get permission from dozens of different copyright owners, I may just give up – especially if I can’t locate some of them. (For more on the specific problem of orphan works, see Tim Lee’s techknowledge article at Cato and some of the many discussions on TLF.)

What copyright regime would best deal with the problem of transaction costs, while ensuring sufficient incentives to create? Robert Merges argues that the fair use doctrine may hamper the formation of copyright clearing-houses (or “collective rights organizations”) and thus increase transaction costs because fair use results in somewhat uncertain rights. See Robert Merges, Contracting into Liability Rules, 84 Cal. L. Rev. 1293 (1996).

Would compulsory licensing, as is required of song covers, radio, and cable retransmission, solve this problem? But, as I have argued elsewhere, compulsory licensing is price-fixing… and makes particularly little sense in industries where the players are all well-known to each other (like cable rebroadcasting network TV).

I don’t know what the solution is, but I’d like to hear everyone’s proposals for a more efficient (and decently liberty-friendly) system. Registration? Some stringent form of equitable estoppel?

briefcase full of cashOver the summer, I blogged about an FCC decision to ban Verizon’s practice of offering incentives to departing customers to get them to stay. Yesterday, the DC Circuit upheld that bad decision. When a customer of Verizon’s phone service decides to leave for a VOIP company, Verizon gets a notice that the number is being ported. When Verizon got notified that the customer was trying to leave, the company would offer her incentives such as “discounts and American Express reward cards” to stay.

This worked well for the customers, who got discounts if they stayed. It also worked well for Verizon, for whom it costs much more to find a replacement customer than to keep the current one. And it was really the best way to do so. If Verizon had given the incentives any time a customer threatened to leave, but didn’t start the process of doing so, then customers would just bluff to get the incentives. Verizon instead looked for a costly signal from the customer. And if Verizon had waited until after the port was already completed, it would cost the customer, Verizon, and the new carrier a lot of effort to switch back.

But the FCC banned Verizon’s efforts and yesterday the DC Circuit affirmed the Commission. I will follow with more details, once my summary of the case comes out in the March issue of Packets, the Center for Internet and Society’s publication summarizing important new internet cases. But for now, I should just note that the court hinted that the FCC’s reading of the statute it relied upon was a bit counterintuitive, but was compelled by Chevron v. NRDC to give the administrative agency great deference in its bad reading of the law. The court even noted that Verizon offered uncontroverted evidence “that continuation of its marketing program would generate $75–79 million in benefits for telephone customers over a five-year period.” Further, the court rejected Verizon’s First Amendment challenge, because the lower standard for commercial speech compelled the conclusion that Verizon’s sound marketing efforts didn’t deserve protection.

These precedents need to be revoked, or the growing administrative state will keep swallowing up more and more of our most important freedoms while preventing sensible and beneficial policies.

broken windowSeeing Adam’s recent post on the stimulus and its advocates, I had to toss in my two cents.

2008 was the year of Schumpeter. Creative destruction was doing its thing, getting rid of many unproductive old-economy companies that were simply creating economic waste by keeping inputs from going to their highest-value use. But this scared a lot of people who had grown used to the benefits capitalism had given them and who were therefore quite risk-averse. Even the entrepreneurs, upon whose ingenuity growth rested, had grown risk-averse and were demanding bail-outs of their own. As the government gave into demands for stability, the risk-taking class upon which prosperity rested began withering away.

If 2008 was the year of Schumpeter, 2009 may be the year of Hazlitt. In Economics in One Lesson, Hazlitt describes a mode of argument all too common in politics: the broken window fallacy. The notion is that by taking money from some and spending it, the government is “creating jobs” and enhancing productivity because money is circulating. Of course, this ignores what the people whose money was taken would have done with it. In other words, it is not beneficial to just spend money, no matter how badly. That is precisely the point that Eugene Robinson and other stimulus proponents seem to have missed.

At Stanford Law School, I am a member of the Stanford Law and Technology Association and the Center for Internet and Society. I write for CIS’s publication, Packets. I just published a piece summarizing the recent Third Circuit case once again holding the Child Online Protection Act unconstitutional. When the decision was released back in July, Adam Thierer wrote a wonderful post here on it. Adam’s and my pieces are complementary. Though Adam gave a nice assessment of COPA’s future, my summary goes into a bit greater detail on the court’s legal reasoning. If you’re interested in the law or in the constitutional principles involved, you may want to check out this interview with my brother, who was a counsel on the case.

As Adam Thierer has previously commented on this very blog, Mythbusters is “the best science show on TV in years.” Since the show tackles ridiculous beliefs that have entered the popular culture, it would make sense that at some point, they’d expose some dumb government policy. But, generally, the Mythbusters stay away from terribly controversial topics. So, unlike Bill Maher, they don’t debunk religious beliefs. And, unlike Adam, they haven’t shown that concerns over airplane terrorism are overblown.

But maybe Adam and Jamie’s policy is changing. I just watched an episode (which originally premiered in 2006) where they test whether cell phone signals can interfere with airplane avionics. Shockingly, even when they hauled into a real plane a radio transmitter broadcasting all kinds of cell phone signals at hundreds of times their normal power, there was no interference at all! This makes sense; after all, there are lots of radio signals travelling through the air everywhere anyway. Airplanes are built to ensure that these signals don’t affect their navigation equipment. And the EU has allowed cell phone use on planes for years, without incident. Plus, we all know that people have used their phones on planes in the US, just more covertly.

I reported on the US’s absurd ban before over at OpenMarket. And it looks like, in spite of liberalizing moves on the part of the FAA and FCC, the ban isn’t going anywhere, thanks to Congress. I guess you can bust myths with science, but the government won’t listen. If only we could recruit Mythbusters to show that the FDA does more harm than good or that Social Security creates fiscal insecurity.

Yesterday, after my Criminal Law class, I went to a lunch talk sponsored by the Stanford Biolaw and Health Policy Society about “abandoned” DNA – that is, DNA traces that people leave all over the place. It was given by Prof. Elizabeth Joh, visiting Stanford Law this year from UC Davis Law. She focused on her recent law review article on the subject.

Joh’s basic argument was that DNA is fundamentally different than the other detritus we abandon on a regular basis. She contended that, though we might not have an expectation that the soda bottle we tossed into the public trash can won’t be seen by anyone, we have an expectation that it won’t be mined for our saliva and the genetic information it contains. Joh even argued that DNA traces are fundamentally different from fingerprints, since fingerprints can only identify us, but cannot give investigators a view into fundamentals about who we are (including our health risks).

Joh contrasted her view, which focuses on privacy, from what she called the “old” trespass view. Under that perspective, what was wrong about an FBI agent slipping into your house to implant bugs was not that the government could now listen into everything you say in your home, but rather the property violation involved in breaking in. Similarly, under the trespass view, a cop could not run a cotton swab on the inside of your mouth to collect DNA (without a warrant) because it would violate your property in yourself, not because it would reveal your genetic information to the government. But the trespass view would have no problem with the government picking up that soda bottle out of the trash and collecting your DNA from it, to match you to a crime. Continue reading →

Presumably, everyone reading this post has purchased software at some point in the past 15 years. If you have, you may have agreed to a contract unwittingly. Breaking the seal of the shrinkwrap around the box might bind you to the terms and conditions contained inside. This is but one of many new ways you can be determined to agree to contractual terms you may have never seen.

In the last decade, Gateway came under fire for its means of doing business with consumers. A customer would order her computer over the phone, but when it would come, it would contain a list of terms including things like a mandatory abritration clause – and always stating that the customer was deemed to have accepted the terms by not returning the computer (at her expense) by some period of time. A number of court cases raised the question whether this practice really created a binding contract. 

As libertarians, we are generally in favor of contracts. But a contract is a mutually consensual agreement. The critical question for shrinkwrap contracts and the like is whether both parties have really assented. In the Gateway cases, there are three main interpretations of what is going on: Continue reading →