It’s not the culmination–that will come soon–but a major step in work I direct at the Cato Institute to improve government transparency has been achieved. I’ll be announcing and extolling it Wednesday at the House Administration Committee’s Legislative Data and Transparency conference. Here’s a quick survey of what we’ve been doing and the results we see on the near horizon.

After president Obama’s election in 2008, we recognized transparency as a bipartisan and pan-ideological goal at an event entitled: “Just Give Us the Data.” Widespread agreement and cooperation on transparency has held. But by the mid-point of the president’s first term, the deep-running change most people expected was not materializing, and it still has not. So I began working more assiduously on what transparency is and what delivers it.

In “Publication Practices for Transparent Government” (Sept. 2011), I articulated ways the government should deliver information so that it can be absorbed by the public through the intermediary of web sites, apps, information services, and so on. We graded the quality of government data publication in the aptly named November 2012 paper: “Grading the Government’s Data Publication Practices.”

But there’s no sense in sitting around waiting for things to improve. Given the incentives, transparency is something that we will have to force on government. We won’t receive it like a gift.

So with software we acquired and modified for the purpose, we’ve been adding data to the bills in Congress, making it possible to learn automatically more of what they do. The bills published by the Government Printing Office have data about who introduced them and the committees to which they were referred. We are adding data that reflects:

• What agencies and bureaus the bills in Congress affect;

• What laws the bills in Congress effect: by popular name, U.S. Code section, Statutes at Large citation, and more;

• What budget authorities bills include, the amount of this proposed spending, its purpose, and the fiscal year(s).

We are capturing proposed new bureaus and programs, proposed new sections of existing law, and other subtleties in legislation. Our “Deepbills” project is documented at cato.org/resources/data.

This data can tell a more complete story of what is happening in Congress. Given the right Web site, app, or information service, you will be able to tell who proposed to spend your taxpayer dollars and in what amounts. You’ll be able to tell how your member of Congress and senators voted on each one. You might even find out about votes you care about before they happen!

Having introduced ourselves to the community in March, we’re beginning to help disseminate legislative information and data on Wikipedia.

The uses of the data are limited only by the imagination of the people building things with it. The data will make it easier to draw links between campaign contributions and legislative activity, for example. People will be able to automatically monitor ALL the bills that affect laws or agencies they are interested in. The behavior of legislators will be more clear to more people. Knowing what happens in Washington will be less the province of an exclusive club of lobbyists and congressional staff.

In no sense will this work make the government entirely transparent, but by adding data sets to what’s available about government deliberations, management and results, we’re multiplying the stories that the data can tell and beginning to lift the fog that allows Washington, D.C. to work the way it does–or, more accurately, to fail the way it does.

At this point, data curator Molly Bohmer and Cato interns Michelle Newby and Ryan Mosely have marked up 75% of the bills introduced in Congress so far. As we fine-tune our processes, we expect essentially to stay current with Congress, making timely public oversight of government easier.

This is not the culmination of the work. We now require people to build things with the data–the Web sites, apps, and information services that can deliver transparency to your door. I’ll be promoting our work at Wednesday’s conference and in various forums over the coming weeks and months. Watch for government transparency to improve when coders get a hold of the data and build the tools and toys that deliver this information to the public in accessible ways.

Tim Lee is right. The Electronic Frontier Foundation post announcing its decision to accept Bitcoin is strange.

“While we are accepting Bitcoin donations,” the post says, ” EFF is not endorsing Bitcoin.” (emphasis in original)

They’ve been using dollars over there without anyone inferring that they endorse dollars. They’ve been using various payment systems with no hint of endorsement. And they use all kinds of protocols without disclaiming endorsement—because they don’t need to.

Someone at EFF really doesn’t like Bitcoin. But, oh, how wealthy EFF would be as an institution if they had held on to the Bitcoin they were originally given. I argued at the time it refused Bitcoin that it was making a mistake, not because of the effect on its bottom line, but because it showed timidity in the face of threats to liberty.

Well, just in time for the Bitcoin 2013 conference in San Jose (CA) this weekend, EFF is getting on board. That’s good news, but it’s not as good as the news would have been if EFF had been a stalwart on Bitcoin the entire time. I have high expectations of EFF because it’s one of the great organizations working in the area of digital liberties.

Check out how tribal villagers in parts of India are establishing a basic right that we take for granted. Using GPS and satellite imagery, they’re marking out the plots of land that they have lived on, unrecognized, for decades, and they’re making it their property.

The project is described here, and you can noodle around and find plots that they’ve mapped out here.

There’s a powerful irony lurking underneath the executive order and OMB memorandum on open data that the White House released in tandem today: We don’t have data that tells us what agencies will carry out these policies.

It’s nice that the federal government will work more assiduously to make available the data it collects and creates. And what President Obama’s executive order says is true: “making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.” GPS and weather data are the premier examples.

But government transparency was the crux of the president’s 2008 campaign promises, and it is still the rightful expectation of the public. Government transparency is not produced by making interesting data sets available. It’s produced by publishing data about the government’s deliberations, management, and results.

Today’s releases make few, if any, nods to that priority. They don’t go to the heart of transparency, but threaten to draw attention away from the fact that basic data about our government, including things as fundamental as the organization of the executive branch of government, are not available as open data.

Yes, there is still no machine-readable government organization chart. This was one of the glaring faults we found when we graded the publication practices of Congress and the executive branch last year, and this fault remains. The coders who may sift through data published by various agencies, bureaus, programs, and projects can’t sift through data reflecting what those organizational units of government are.

Compare today’s policy announcements to events coming up on Capitol Hill in the next two weeks.

On Thursday next week (May 16), the House Committee on Oversight and Government Reform will host a “DATA Demonstration Day” to illustrate to Congress and the media how technology may cut waste and improve oversight if federal spending data is structured and transparent. (That would include my hobby-horse, the machine-readable federal government organization chart.) We’ll be there demo-ing how we at Cato are adding data to the bills Congress publishes.

On May 22nd, the House Administration Committee is hosting its 2013 Legislative Data and Transparency Conference. This is an event at which various service providers to the House will announce not just policies, but recent, new, and upcoming improvements in publication of data about the House and its deliberations. (We’ll be there, too.)

The administration’s open data announcements are entirely welcome. Some good may come from these policies, and they certainly do no harm (barring procurement boondoggles–which, alas, is a major caveat). But I hope this won’t distract from the effort to produce government transparency, which I view as quite different from the subject of the new executive order and memorandum. The House of Representatives still seems to be moving forward on government transparency with more alacrity.

The Cato Institute is seeking a “researcher to support a campaign to educate the public and policymakers on the implications of biometric identification systems related to immigration policy reforms.

The better applicants will know how many different governmental systems work—legislation, appropriation, regulation, procurement, grant-making, and so on—and have zeal to chase down all the ways the national ID builders are using them to advance their cause.

Immigration reform legislation in the Senate that features a vast expansion of E-Verify is yet another reason to join the fight against having a national ID in the United States.

Last summer at an AEI-sponsored event on cybersecurity, NSA head General Keith Alexander made the case for information sharing legislation aimed at improving cybersecurity. His response to a question from Ellen Nakashima of the Washington Post (starting at 54:25 in the video at the link) was a pretty good articulation of how malware is identified and blocked using algorithmic signatures. In his longish answer, he made the pitch for access to key malware information for the purpose of producing real-time defenses.

What the antivirus world does is it maps that out and creates what’s called a signature. So let’s call that signature A. …. If signature A were to hit or try to get into the power grid, we need to know that signature A was trying to get into the power grid and came from IP address x, going to IP address y.

We don’t need to know what was in that email. We just need to know that it contained signature A, came from there, went to there, at this time.

…

[I]f we know it at network speed we can respond to it. And those are the authorities and rules and stuff that we’re working our way through.

…

[T]hat information sharing portion of the legislation is what the Internet service providers and those companies would be authorized to share back and forth with us at network speed. And it only says: signature A, IP address, IP address. So, that is far different than that email that was on it coming.

Now it’s intersting to note, I think—you know, I’m not a lawyer but you could see this—it’s interesting to note that a bad guy sent that attack in there. Now the issue is what about all the good people that are sending their information in there, are you reading all those. And the answer is we don’t need to see any of those. Only the ones that had the malware on it. Everything else — and only the fact that that malware was there — so you didn’t have to see any of the original emails. And only the ones that had the malware on it did you need to know that something was going on.

It might be interesting to get information about who sent malware, but General Alexander said he wanted to know attack signatures, originating IP address, and destination. That’s it.

Now take a look at what CISPA, the Cybersecurity Information Sharing and Protection Act (H.R. 624), allows companies to share with the government provided they can’t be proven to have acted in bad faith:

information directly pertaining to—

(i) a vulnerability of a system or network of a government or private entity or utility;

(ii) a threat to the integrity, confidentiality, or availability of a system or network of a government or private entity or utility or any information stored on, processed on, or transiting such a system or network;

(iii) efforts to deny access to or degrade, disrupt, or destroy a system or network of a government or private entity or utility; or

(iv) efforts to gain unauthorized access to a system or network of a government or private entity or utility, including to gain such unauthorized access for the purpose of exfiltrating information stored on, processed on, or transiting a system or network of a government or private entity or utility.

That’s an incredible variety of subjects. It can include vast swaths of data about Internet users, their communications, and the files they upload. In no sense is it limited to attack signatures and relevant IP addresses.

What is going on here? Why has General Alexander’s claim to need attack signatures and IP addresses resulted in legislation that authorizes wholesale information sharing and that immunizes companies who violate privacy in the process? One could only speculate. What we know is that CISPA is a vast overreach relative to the problem General Alexander articulated. The House is debating CISPA Wednesday and Thursday this week.

With Bitcoin enjoying a spike in price against government currencies, there is lots of talk about it on the Interwebs, including Jerry’s typically thoughtful post from earlier today. If you’re not familiar with it yet, here’s a good Bitcoin primer, which also counsels reading a lot more before you acquire Bitcoin, as Bitcoin may fail. If you like Bitcoin and want to buy some, don’t go all goofy. Do your homework. As if you need to be told, be careful with your money.

Much of the commentary in the popular press declares a Bitcoin bubble for one reason or another. It might be a bubble, but nobody actually knows. A way of guessing is to compare Bitcoin’s qualities as a currency and payment network to the alternatives. Like any service or good, there are many dimensions to value storage and transfer.

I may not capture them all, and they certainly don’t predict the correct price against the dollar or other currencies. That depends on the ultimate viscosity of Bitcoin. But Bitcoin certainly has value of a different kind: it may discipline fiat currencies and the states that control them.

Intrinsic Value: If you’re just starting to think about money, this is where you’ll find Bitcoin an obvious failure. These evanescent strings of code have no intrinsic value whatsoever! Anyone relying on them as a store of value is a volunteer victim. Smart people stick with U.S. dollars and other major currencies, thin sheets of cloth or plastic with special printing on them…

No major currency has intrinsic value. Indeed, there isn’t much of anything that has intrinsic value. The value of a thing depends on other people’s demand for it. This is as true of Bitcoin as it is of dollars, sandwiches, and sand. So the intrinsic value question, which seems to cut in favor of traditional currencies, is actually a wash.

Transferability: Bitcoin is good with transferability–far better than any physical currency and quite a bit better than most payment systems. Not only is it fast, with transactions “settling” fairly quickly, but it is borderless. The genius of PayPal (after it gave up on being a replacement monetary system itself) was quick transfer to most places that rich people want to send money. Bitcoin allows quick transfer anywhere the Internet goes.

Acceptance: Bitcoin bombs badly in the area of acceptance. Try buying a sandwich with Bitcoin today and you’ll go hungry because few people and businesses accept it. This is a real problem, but it’s nothing intrinsic to Bitcoin. When Hank Aaron broke Babe Ruth’s home run record, people didn’t understand that credit cards were like money. (Watch the video at the link two or three times if you need to. It’s not only a great moment in sports.) Acceptance of different form-factors for value and payments can change.

Cost: How many billions of dollars per year do we pay for storage and transfer of money? Bitcoin is free.

Inflation-Resistance: Assuming the algorithms work as advertised, the quantity of Bitcoin will rise to a pre-established level of about 21 million over the next couple of decades and will never increase after that. This compares favorably to fiat currencies, the quantity of which are amended by their managers, sometimes quite dramatically, to undercut their value. If you want to hold money, holding Bitcoin is a better deal than holding dollars. Which brings us to…

Deflation-Resistance: Without central planners around to carefully debase its value, Bitcoin might go deflationary, with people refusing to spend it while it rises against all other stores of value and goods. Arguably, that’s what’s happening in the current Bitcoin price-spike. People are buying it in anticipation of its future increase in value.

Deflation can theoretically cause an economy to seize up, with everyone refusing to buy in anticipation of their money gaining in value over the short term. There is room for discussion about whether hyper-deflation can actually occur, how long a hyper-deflation can persist, and whether the avoidance of deflation is worth the risk of having centrally managed currency. I have a hard time being concerned that excessive savings could occur. However, whatever the case with those related issues, Bitcoin is probably deflation-prone compared to dollars and other managed currencies.

Surveillance-Resistance: Where you put your money is a reflection of your values. Payment systems and governments today are definitely gawking through that window into our souls.

Bitcoin, on the other hand, allows payments to be made with very little chance of their being tracked. I say “little chance” because there is some chance of tracking payments on the network. Sophisticated efforts to mask payments will be met by sophisticated efforts to track them. Relatively speaking, though, payments through traditional payment systems like checks, credit cards, and online transfer are super-easy to track. Cash is pretty darn hard to track. So Bitcoin stacks up well against our formal payment systems, but equally or perhaps poorly to cash.

Seizure-Resistance: The digital, distributed nature of Bitcoin makes it resistant to official seizure. Are you in a country that exercises capital controls? (What a euphemism, “capital controls.” It’s seizure.) Put your money into Bitcoin and you can email it to yourself. Carve your Bitcoin code into the inner lip of your frisbee before heading out on that Black Sea vacation. Chances are they won’t catch it at the border.

Traditional currencies either exist in physical form or they’re held and transferred by institutions that are more obediant to the state than they are loyal to their customers. (If Cyprus has anything to do with the current price-spike of Bitcoin, it’s as a lesson to others. Cypriots apparently did not move into Bitcoin in significant numbers.)

Because Bitcoin transactions are relatively hard to track, many can be conducted–how to put this?– independent of one’s tax obligations. In relation to the weight of the tax burden, Bitcoin may grow underground economies. Indeed, it flourishes where transactions (in drugs, for example) are outright illegal. Bitcoin probably moves the Laffer curve to the left.

Security: The tough one for Bitcoin is security. Most people don’t know how to store computer code reliably and how to prevent others from accessing it. Individuals have lost Bitcoin because of hard-drive crashes. (This will cause small losses in the total quantity of Bitcoin over time.) Bitcoin exchanges have collapsed because hackers broke in. And there’s a genuine risk that viruses might camp on your computer, waiting for you to open your (otherwise encrypted) wallet file. They’ll send your Bitcoin to heaven-knows-where the moment you do.

When a Bitcoin transaction has happened, it is final. Like a cash expenditure or loss, there is no reversability and nobody to complain to if you don’t have access to the person on the other side of the transaction. The downside of a currency that costs nothing to transfer is the lack of a 1-800 number to call.

So Bitcoin lags traditional currencies along the security dimension. But this is not intrinsic to Bitcoin. Security will get better as people learn and technology advances. (How ’bout a mega-firewall that requires approval of all outbound Internet traffic while the wallet is open?)

There may be Bitcoin-based payment services, banks, and lenders that provide reversibility, security, that pay interest, and all the other goodies associated with dollars today. To the extent they can stay clear of the regulatory morass, they may be less expensive, more innovative, and, in the early going, more risky.

So what’s the right price for Bitcoin? Only a fool can say. (No offense, all of you declaring a Bitcoin bubble.) I think it depends on the ultimate “viscosity” of Bitcoin.

Let’s say Bitcoin’s exclusive use becomes a momentary medium of exchange: Every buyer converts currency to Bitcoin for transfer, and every seller immediately converts it to her local currency. There’s not much need to hold Bitcoin, so there’s not that much demand for Bitcoin. Its equilibrium price ends up pretty low.

On the other hand, say everybody in the world keeps a little Bitcoin on hand for quick, costless transactions once there’s a handy, reliable, and secure Bitcoin payment system downloadable to our phones. If lots of people hold Bitcoin just because, that highly viscous environment suggests a high price for Bitcoin relative to other currencies and things.

Whatever the case, people are now buying Bitcoin because they think others are going to buy it in the future. Whether they’re “speculators” trying to buy in ahead of other speculators, or if they’re buying Bitcoin as a hedge against the varied weaknesses of fiat currencies and state-controlled payment systems, it doesn’t matter.

What does matter, I think, is having this outlet. The availability of Bitcoin is a small, but growing and important security against fiat currencies and state-controlled payments. It is a competitor to state money.

Bitcoin’s existence makes central bankers slightly less free to inflate the money they control, states will have slightly less success with seizing money, and surveillance of traditional payment systems will be decreasingly useful for law enforcement, taxation, and control.

I don’t think Bitcoin delivers us to libertarian “Shangri-la” or anarcho-capitalism, but it’s a technology that fetters government some. It’s a protection for people, their hard-earned wealth, and their privacy. That’s the value of Bitcoin, in my mind, no matter its current price.

If you haven’t seen Edward Hasbrouck’s talk on government surveillance of travel IT systems, you should.

It’s startling to learn just how much access people other than your airline have to your air travel plans.

Here’s just one image that Hasbrouck put together to illustrate what the system looks like.

He’ll be presenting his travel surveillance talk at the Cato Institute at noon on April 2nd. We’ll also be discussing the new public notice on airport strip-search machines issued by the TSA earlier this week.

Register now for Travel Surveillance, Traveler Intrusion.

In anticipation of a hearing in the House Judiciary Committee Wednesday afternoon, Sandra Aistars, executive director of the Copyright Alliance, writes in The Hill about the principles that should guide copyright reform, calling for debate “based in reality rather than rhetoric.”

Chief among these principles is that protecting authors is in the public interest. Ensuring that all creators retain the freedom of choice in determining how their creative work is used, disseminated and monetized is vital to protecting freedom of expression.

Arguing for authors in terms of freedom of choice and expression is good rhetoric, but it’s quite unlike what I expect you’ll hear during Cato’s noon Wednesday forum on copyright and the book Laws of Creation: Property Rights in the World of Ideas.

Authors Ron Cass and Keith Hylton methodically go through each intellectual property doctrine and explore its economic function, giving few words to authors’ “choice” or their “freedom of expression.” They certainly don’t denigrate authors or their role, but Cass and Hylton don’t vaunt them the way Aistars does either.

Recent events in the copyright area are providing much grist for the discussion. You can still register for the book forum, treating it as a warm-up for Wednesday afternoon’s hearing, if your freedom of choice and expression so dictate.

Register here now for next Wednesday’s Cato book forum on Laws of Creation: Property Rights in the World of Ideas.

In the book, Ronald A. Cass and Keith Hylton reject the idea that changing technology undermines the case for intellectual property rights. They argue that making the work of inventors and creators free would be a costly mistake.

That cuts against the bulk of academic opinion today, which is critical of the broad scope and length of intellectual property protections today. The book has qualities that many libertarians will enjoy because it starts with first principles: the theoretical underpinnings and practical benefits of property rights.

By no means does the book answer all the questions, and we’ll have TLF’s own Jerry Brito, the editor of Copyright Unbalanced, on hand to provide commentary.

That’s Wednesday (3/20) at noon in the Cato Institute’s F.A. Hayek auditorium. There’s no such thing as a free lunch, but the sandwiches provided afterwards come at the low cost of learning more dimensions of the intellectual property debate. Register now!

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.

Based on the data modeling reported in “Grading the Government’s Data Publication Practices,” and with software we acquired and modified for the purpose, we’ve been marking up the bills introduced in the current Congress with “enhanced” XML that allows computers to automatically gather more of the meaning found in legislation. (Unfamiliar with XML? Several folks have complimented the explanation of it and “Cato XML” in our draft guide.)

No, we are not going to replace the lawyers and lobbyists in Washington, D.C., quite yet, but our work will make a great deal more information about bills available automatically.

And to build society’s capacity “to interact with the data and make use of it,” we’re hoping to work with the best outlet for public information we know, Wikipedia, making data about bills a resource for the many Wikipedia articles on legislation and newly passed laws.

Wikipedia is a unique project, both technically and culturally, so we’re convening a workshop on March 14th and 15th to engage Wikipedians and bring them together with data transparency folks, hopefully to craft a path forward that informs the public better about what happens in Washington, D.C. We’ve enlisted Pete Forsyth of Wiki Strategies to help assemble and moderate the discussion. Pete was a key designer of the Wikimedia Foundation’s U.S. Public Policy Initiative—a pilot program that guided professors and students in making substantive contributions to Wikipedia, and that led to the establishment of the Foundation’s Global Education Program.

The Thursday afternoon session is an open event, a Wikipedia tutorial for the many inexperienced editors among us. It’s followed by a Sunshine Week reception open to all who are interested in transparency.

On Friday, we’ll roll up our sleeves for an all-day session in which we hope Wikipedians and experienced government data folks will compare notes and produce some plans and projects for improving public access to information.

You can view a Cato event page about the workshop here. To sign up, go here, selecting which parts of the event you’d like to attend. (Friday attendance requires a short application.)

For some Wikipedians, particularly, this may be their first direct experience with the Cato Institute. We are known, of course, for policy positions that contest the current size and scope of government, but transparency, and the hope with getting data on to Wikipedia, is meant to provide the public with neutral information tools that all communities can use to oversee the government and advocate for what they want.

From Cato’s first event on transparency, and again in “Publication Practices,” I’ve emphasized that transparency is a sort of win-win bet.

Government transparency is a widely agreed-upon value, but it is agreed upon as a means toward various ends. Libertarians and conservatives support transparency because of their belief that it will expose waste and bloat in government. If the public understands the workings and failings of government better, the demand for government solutions will fall and democracy will produce more libertarian outcomes. American liberals and progressives support transparency because they believe it will validate and strengthen government programs. Transparency will root out corruption and produce better outcomes, winning the public’s affection and support for government.

Though the goals may differ, pan-ideological agreement on transparency can remain. Libertarians should not prefer large government programs that are failing. If transparency makes government work better, that is preferable to government working poorly. If the libertarian vision prevails, on the other hand, and transparency produces demand for less government and greater private authority, that will be a result of democratic decisionmaking that all should respect and honor.

…

By putting out data that is “liquid” and “pure,” governments can meet their responsibility to be transparent, and they can foster this evolution toward a body politic that better consumes data. Transparency is likely to produce a virtuous cycle in which public oversight of government is easier, in which the public has better access to factual information, in which people have less need to rely on ideology, and in which artifice and spin have less effectiveness. The use of good data in some areas will draw demands for more good data in other areas, and many elements of governance and public debate will improve.

Hope to see you March 14th and 15th.

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?

It’s not electioneering, which is advocating for a specific candidate or party. The study says nothing about what to do with the information it provides. I do believe politicians should be held to account for their transparency practices. The primary way politicians are held accountable is at the ballot box. Thus, communicating to the public about the performance of public officials in a given area at election time is one of the best ways to affect their behavior.

The methodology used in this report gives us the ability to track progress going forward, and it creates better incentives for improvement because you can tie the quality of actual important data to the officials responsible for it. But it doesn’t allow us to go back in time and grade the condition of data in the past (barring a huge effort to recreate what resources were available). And it doesn’t allow us to grade candidates for office, who don’t have any responsibility for any data we care about. So I can say, because I believe it, that President Obama is almost certainly better than President Bush was, and I’ve heard that Mitt Romney was bad on transparency as a governor. But I don’t have data to confirm these things.

We’ll do this study again—and better!—in two years, and again in four. We will be measuring progress and calling it out for the public to consider. We’ve put together a pretty good methodology for assessing data publication, I think, and the division of responsibility for data among political leaders is pretty clear. So this instrument will be a way for the public to assess progress on something they want.

Thanks to the folks at GovTrack.us, the National Priorities Project, OMB Watch, and the Sunlight Foundation, who helped me review the government’s data publication practices. (Their help does not imply agreement with MY conclusions.)

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. It’s made me interested as a matter of political science what role petitions have in organizing and motivating people, and what role they have in signaling the importance of issues to elected (and unelected) officials.

On balance, petitioning is a small net positive—even when your petition fails to reach a requisite number. This petition has organized and motivated people, and it has signaled to government officials that this issue matters. We could have done more with a White House response, but we would have to have done more to get signatures first!

A petition shouldn’t be the only effort at changing policy, and this one certainly isn’t. While the petition was gathering signatures, the Electronic Privacy Information Center was renewing its legal challenge to the TSA policy. The Competitive Enterprise Institute weighed in with a well crafted and widely joined amicus brief.

The D.C. Circuit Court of Appeals promptly ordered the TSA to answer EPIC’s petition. It is common for courts to simply reject petitions of this kind, so this is important progress. I don’t know whether anyone in the court was aware of the public interest in this, but I do know that people on Capitol Hill and in the White House have taken note of it. Success.

I’m pleased by getting … I dunno—85% of what a petition is for. I have no reason to believe that the petition was monkeyed with, and you can bet I would exploit the PR opportunity if I thought it had been!

Thanks to all who signed and forwarded the petition to friends and colleagues. You’ll be with is in the battle to bring TSA within the rule of law as it continues.

I’m confident of success! Given a long enough time-horizon…

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.

[Update II: The petition has now expired, about 2,500 signatures shy of the 25,000 needed to require a White House response.]

[Update: The D.C. Circuit Court of Appeals has accepted CEI’s amicus brief and ordered the TSA to answer EPIC’s petition. It is common for courts to simply reject petitions of this kind, so this is important progress in the effort to get TSA to follow the law.]

Will the White House give us a substantive answer or not?

A few weeks ago, we ‘celebrated’ the one-year anniversary of a court order requiring the TSA to do a notice-and-comment rulemaking on its policy of using strip-search machines for primary screening at airports. It’s been a year and the TSA has shown no action.

The Electronic Privacy Information Center, which brought the original case, filed a petition asking the D.C. Circuit Court of Appeals to require action on the TSA’s part. The Competitive Enterprise Institute and many other friends of the court chimed in with an amicus brief highlighting issues in the case. I emceed a Cato Capitol Hill briefing on the topic.

But the real fun has been with a petition on Whitehouse.gov asking the president to make the TSA follow the law. When I put that up there, the issue took off. Stories and links went out on Ars Technica, Wired, and the Washington Times, just to name a few. People sent notices out to their email lists. And there was plenty of Tweeting, blogging, reTweeting, reblogging.

The <a href=""petition”>https://petitions.whitehouse.gov/petition/require-transportation-security-administration-follow-law/tffCTwDd”>petition is nearing 16,000 signatures (of 25,000 needed to require a response from the White House). That would be great to have, though not essential. The PR value has already been gained.

PR value is real value in Washington, D.C., and to illustrate that value, inveterate friend of liberty Will Hayworth whipped up a little code to grab the locations of the people that named their location when they signed the petition, and he put them on a Google map. It’s a nice illustration of the nationwide distaste for the TSA’s policy—and its refusal to implement the policy consistent with the law.

Take a look and see how many people from your state or town have signed on. Do your friends need a reminder? Send them the link to the petition page!

Petitioning isn’t going to upend government, but it is an organizing idea with a constitutional pedigree—the First Amendment. So if you think TSA should follow the law, well, maybe you should <a href=""join”>https://petitions.whitehouse.gov/petition/require-transportation-security-administration-follow-law/tffCTwDd”>join in the fun!

If we get 25,000 signatures by August 9th, the White House will have to respond.

I’m impressed with the job Ryan Radia did in this Federalist Society podcast/debate about CISPA, the Cyber Intelligence and Sharing Protection Act.

It’s also notable how his opponent Stewart Baker veers into a strange ad hominem against “privacy groups” in his rejoinder to Ryan. Baker speaks as though arguable overbreadth in privacy statutes written years ago makes it appropriate to scythe down all law that might affect information sharing for cybersecurity purposes. That’s what language like “[n]otwithstanding any other provision of law” would do, and it’s in the current version of the bill three times.

The world does not owe targeted advertising networks a business model, so I am agnostic about Microsoft’s decision to ship Internet Explorer 10 with “Do-Not-Track” enabled by default. Ryan Singel has a good write-up on Threat Level that covers many dimensions of the issue.

Decisions like this are never driven by a single motivation, but I’m interested in the likelihood that Microsoft made this choice hoping to drive a dagger into Google’s business model. To the extent it did, it’s a nice illustration of how competition among companies can serve consumers’ privacy preferences. There is some demand for privacy, though less than most regulatory types believe. Microsoft saw an angle to get some pro-privacy PR, improve consumers’ privacy by a small margin, and hamstring a competitor. You go, girl. Er, Microsoft.

Now, consumers aren’t falling over themselves for protection from the benign practice of tracking for the purpose of delivering targeted ads. I suspect that counter-punches from ad networks and Google will send the Do Not Track header into the dustbin of privacy history right along with P3P. The idea of putting a signal into the header that says “please do not track” is clumsy, to put it charitably.

If you want to avoid tracking, you can do that already. Use Tracking Protection Lists.

The ACLU of Washington (ACLU-WA) seeks a self-motivated public policy advocate to lead its work to protect civil liberties in the face of society’s increasingly advanced technologies. The ACLU-WA’s staff of 30 employees and numerous volunteers work in a fast-paced, friendly and professional office in downtown Seattle.

Using strategies of education, policy analysis, legislative advocacy, coalition building, and legal efforts, the Technology and Liberty Director advances a civil liberties perspective on such issues as data aggregation, surveillance technologies, and online free speech. The Technology and Liberty Director works closely and collaboratively with senior ACLU staff, and has significant interaction with the national ACLU Speech, Privacy and Technology Project. The position reports to the Executive Director through the Deputy Director.

Responsibilities: Regular responsibilities will include the following work:

• Engage in both technical and policy research to analyze technology-related programs and proposals by government and industry. In collaboration with senior staff, develop positions and strategies to respond to civil liberties and technology issues.
• Provide expertise to policymakers, the press, and coalition partners.
• Forge relationships with technology experts, public interest groups, government officials, community stakeholders, and academics to engage them in our work.
• In collaboration with the Legislative Director, advocate on selected technology issues before the state legislature, state or local agencies, and other policy makers.
• Engage in outreach and educational activities through written materials, speaking engagements, media, and visits with ACLU supporters.
• Maintain positive working relationships with relevant national ACLU staff, and collaborate on selected efforts.
• Recruit and supervise interns and volunteers working on technology policy.
• Assist in other activities as assigned. Help maintain a positive, respectful, welcoming, and professional work environment for employees, interns and volunteers.

Qualifications:

• A law degree or another relevant advanced degree.
• Experience in legislative advocacy and policy analysis in the areas of privacy, technology, or other related fields.
• Demonstrated skills as an articulate, effective public advocate.
• Excellent analysis, writing, and research skills. Prior experience simplifying and communicating technical issues to non-technical audiences.
• Strong project management, organization and collaboration skills with attention to detail and ability to meet deadlines.
• Strong commitment to and understanding of civil liberties and civil rights.
• Ability to work cooperatively on a variety of projects with a broad range of individuals and community organizations.
• Ability to work independently and under pressure, to attend occasional evening meetings and sometimes to work long or irregular hours.
• A commitment to diversity; a personal approach that values the individual and respects differences of race, ethnicity, age, gender identity and expression, sexual orientation, religion, ability, and socio-economic circumstance.

Compensation:

Salary is based on experience and qualifications. Benefits include three weeks of vacation to start, medical and disability insurance, matching 401(k) plan and bus pass.

Application procedure: To apply, email a letter of application and resume to Jobs@aclu-wa.org and include in the subject line of the email: your last name and Technology & Liberty Director. In your letter, please indicate where you learned of the posting. Applications will be accepted until the position is filled at which time it will be removed from our website at http://www.aclu-wa.org/jobs-internships.

The ACLU is an affirmative action/equal opportunity employer and encourages qualified individuals of every race, creed, ethnicity, disability, sexual orientation, and gender identity and expression to apply.

In previous posts about the battle for control of the Cato Institute, I’ve noted (Part I) that the “Koch side” is a variety of different actors with different motivations who collectively seem not to apprehend the Cato Institute’s value. Next (Part II), I looked at why the Koch side is fairly the object of the greater scrutiny: their precipitous filing of the original lawsuit.

My premise has been that the Koch side cares. That is, I’ve assumed that they want to preserve Cato and see its role in the libertarian movement continue. Some evidence to undercut that assumption has come around, namely, their filing of a second lawsuit—and now a third! [Update: Mea culpa—there hasn’t been a third lawsuit. Just a new report of the second one. I had assumed the second was filed in state court and thus thought this was distinct. I’m not following the legal issues, obviously, which matter very little.]

The Koch side may be “on tilt.” Lawsuit-happy, win-at-any-cost. We will just have to wait and see.

For the time being, I will continue to assume that the Koch side has the best interests of liberty in mind and explore the dispute from that perspective. I owe the world some discussion of Cato-side miscalculation—of course, there is some—but before I get to that in my next post, I think it’s worth talking about the burden of proof in the Kochs’ campaign to take control of Cato.

Only fringies will deny that the Cato Institute adds some value to the liberty movement. It does. The question—if preservation of liberty is the goal—is how well it will do so in the future. The central substantive issue in the case—there are many side issues—is how Cato will operate in the future.

Now, here’s a quick primer on public campaigns and the difference between the “yes” side and the “no” side.

A “yes” campaign is hard. The moving side—the “yes” side—has to make the case that there is a problem, and it also has to make the case that it offers the best available solution.

A “no” campaign is easy. The “no” side can choose to dispute the existence of the problem, or it can dispute that the “yes” side’s solution is the right one.

In 1994, I worked for a campaign to defeat a single-payer health care initiative, California’s Prop. 186. The most memorable work we did—and the most fun—was a weekly release we faxed out (yes, faxed!) called the “Whopper of the Week.” Our side would take any dimension of the other side’s campaign and pound on it as hard as we could with mocking disdain and a smattering of the facts as we saw them.

By the end of the campaign, the “yes” side was arguing that their losses in battles like this were becoming more narrow each time around. Pathetic. We blasted out an Alice-in-Wonderland-themed Whopper. No, health-care socializers, a loss is not a win.

In the battle for control of Cato, the Kochs are the moving party, the “yes” campaign. But it has done almost none of the work that a “yes” campaign should.

As I wrote previously, they didn’t even make the case that there is a problem:

In terms of communications and public relations, this is kind of jaw-dropping stuff. It looks as though the Koch side laid little or no groundwork for public discussion of their move to take control of Cato. They didn’t register a public complaint about the direction of Cato’s research. They didn’t enlist a single ally or proxy into raising questions about Cato’s management.

And it’s becoming conspicuous with the passage of time that the Koch side isn’t putting forward a solution.

When the Kochs filed their original lawsuit, their public messaging was that it was a narrow contract dispute. “Nothing to see here.”

Then, the Koch messaging aimed at Ed Crane’s personality and management style. A statement from David Koch cited Ed’s rudeness. A pair of unsigned stories on Breitbart.com expanded on that theme a little breathlessly (using a picture of Ed that makes him look mean and fat!). I presume the Kochs helped with the placement of these stories, though I could certainly be wrong.

[ UPDATE: (4/23/12) A third Breitbart story went up today, but is no longer available at its original source. A mirror of the story, “The Crane Chronicles, Part III: Ed Gone Wild,” is available here.]

You only have to look at that “mean and fat” picture of Ed Crane to know he was going to be out the door soon anyway. Hopefully, to a chaise lounge and a mai tai with a little umbrella in it. Ironically, the instant dispute may keep Ed at Cato longer than he would have been if someone just said “thank you” and thrown him a nice going-away party.

Attacking Ed Crane does nothing to make the Kochs’ case for taking over Cato. It is at best one-third of the first half of a “yes” campaign.

What about the other two-thirds of the “problem” statement? Has Cato’s fundraising lagged? Is the scholarship weak? Has Cato failed to strike the right balance between principle and relevance? These are important, substantive questions … that the Koch side has barely raised.

Much less has the Koch side put forward the solutions that it thinks are the right ones. PR statements won’t do for the people who dedicate their every work-day to advancing liberty. What is the Koch vision for Cato? Who do the Kochs think should be at the helm? How can we know that Cato will remain a distinct, non-partisan voice in Washington? It takes something more than words when the devil we know has a 35-year track record.

The evidence of miscalculation I bring to bear in this post is the dog that didn’t bark. By all appearances, the Kochs didn’t prepare for the campaign to take over Cato. A fair inference is that the Kochs aren’t prepared to run it.

I’m fascinated in writing this post that I feel the need to explain to whoever is running this issue for the Kochs what they should have done in the effort to get control of Cato. It’s not because I wish the Koch side success. It’s because the evidence we have indicates fairly strongly that the Koch side is not prepared to run the Cato Institute. What happens if the dog catches the car?

The Cato Institute’s jobs page has a new posting. If you have the right mix of data/technical skillz, public policy knowledge, love of freedom, and vim, this could be your chance to advance the ball on government transparency! [Added: For more background on Cato’s transparency work, see this and this.]

Data Curator, Center on Information Policy Studies

The Cato Institute seeks a data curator to support its government data transparency program. This candidate will perform a variety of functions that translate government documents and activities into semantically rich, machine-readable data. Major duties will include reading legislative documents, marking them up with semantic information, and identifying opportunities for automated identification and extraction of semantic information in documents. The candidate will also oversee the data entry process and train and supervise others to perform data entry. The ideal candidate will have a college degree, preferably in computer science and/or political science, and experience using XML, RDFa, and regular expressions. Attention to detail is a must, with an understanding of U.S federal legislative, spending, and regulatory processes preferred.

Applicants should send their resume, cover letter, and a short writing sample to:

Jim Harper
Director of Information Policy Studies
Cato Institute
1000 Massachusetts Ave. NW
Washington, DC 20001
Fax (202) 842-3490
Email: jharper@cato.org

Here’s an exclusive insider tip for TechLiberationFront readers. Don’t send your application by fax! That would send the wrong signal…

Last week, I posted about the conflict between the Koch brothers and the Cato Institute, threatening to make that post first in a series. Never let it be said that I don’t follow through on my threats, sometimes.

Recapping: I believe the Koch brothers want what’s best for liberty, but the actions of the “Koch side”—an array of actors with differing motivations and strategies—may not be serving that goal. This seems due to miscalculation: the Koch side seems not to recognize how much of the Cato Institute’s value is in its reputational capital, capital which would be despoiled by a Koch takeover. I basically fleshed out an early point of Jonathan Adler’s on the Volokh Conspiracy.

But why is it the Koch side that gets the attention and not the Cato side? That deserves some explanation.

I’m a Cato partisan, but I don’t think it’s just my partisanship that puts the Koch side’s goals and strategies in play. So let me explain why I think the Koch side should get most of the examination—and why that‘s a product of Koch-side miscalculation.

I believe the Koch side is fairly regarded as the moving party in the dispute. I’m still not 100% certain, but when the Kochs filed suit—and remember that link: to a Politico story that went up the next morning—I believe they stood to lose nothing from waiting. A Cato board meeting had been called at which Bill Niskanen’s shares might be transferred to his widow, leaving Koch ownership at 50% contrary to their desires. But the Kochs could have objected and given up no legal rights to contest at a later time what they would argue to be an invalid transfer.

If there’s a corporate lawyer who can clear it up for me in the comments, please do, but I believe the Kochs’ rights under the articles of incorporation or shareholders agreement would not have lapsed upon a transfer of shares to which they objected. If the Kochs had to install new board members, ejecting the old, in order to preserve their rights, tell me what operative document or law required it.

If I’m not wrong, the Kochs are the moving party. The Kochs went to court to require a change from the status quo in terms of ownership (Niskanen’s shares not having been transferred). The Kochs changed the status quo in terms of membership on the Cato board. (Cato had independence from the Kochs as a long-term goal, but preferred the short-term status quo.)

Was the timing of the meeting precipitous? Bob Levy has stated that Cato’s bylaws require a meeting on the first day of December, and that the 2011 meeting had already been postponed 90 days.

Maybe some on the Koch side feel they were goaded into action. One could craft a narrative that the Cato side was ingeniously laying trip-wires for the Kochs and scheduled that meeting as a final provocation. But the truth is probably somewhere closer to “sick of this $&*#—schedule the meeting.”

Life isn’t fair, and having been goaded does not diminish the fact of having acted. Read your Sun-Tzu. Suing made the Kochs the moving party.

As the moving party, the Kochs put their own motivations and actions in issue. But the Koch side had taken no steps ahead of time (none I can discern, anyway) to make Cato’s management or leadership the issue in public debate. Doing so would at least have softened the argument that a Koch takeover would be bad for Cato.

But remember that link I pointed out above? I’ve seen it suggested on the Cato side that the Koch side dished an exclusive to Politico. I don’t know the truth of it, but the story was posted before 10:00 a.m. the day after the Kochs went to court. That’s awfully quick Politico sleuthing, to get the court documents out of Kansas and the story up before the morning coffee break. I don’t know when or how Cato people were served the legal papers, but I doubt they got clean PDFs. I could easily be wrong, but the evidence and inferences I’ve accessed point to someone on the Koch side pushing the lawsuit story.

In terms of communications and public relations, this is kind of jaw-dropping stuff. It looks as though the Koch side laid little or no groundwork for public discussion of their move to take control of Cato. They didn’t register a public complaint about the direction of Cato’s research. They didn’t enlist a single ally or proxy into raising questions about Cato’s management. It’s as if they were unaware they might meet with resistance, though they have apparently met with downright obstinance from Ed Crane, Cato’s president, for some number of years. Then, when they sued, they may even have pushed that story.

Only recently, and very late, have a statement from David Koch and a write-up on Breitbart.com attempted to tar Ed Crane for his management style and his evil-geniosity in the present dispute. We’ll see how that works.

Ed may have miscalculated some and played into the Koch side of the story by talking to Dave Weigel at Slate about some things he has done wrong. He pretty much admitted to rudeness, and he said he gave on off-the-record quote to Jane Mayer, the terms of which she did not respect in her hit-piece on the Kochs. I get what he seems to have been saying—“Nobody will tell the Kochs that ‘market-based management’ isn’t the best thing since sliced bread”—but it’s a whole hell of a mess whether Ed had a good point or not. A sharp quote he got in—“Who the hell is going to take a think tank seriously if it’s controlled by billionaire oil guys?”—barely saves it and makes it a wash in my opinion. (Update: A new Breitbart piece exploits the Weigel interview.)

Except for fringies who will back the Kochs because they are reviled on the left and Cato is not, the story remains fairly well set: The Koch brothers are trying to take over the well-respected Cato Institute and convert it to their own purposes. Unfair? Well, the Koch side impetuously put itself at the center of the story by filing the lawsuit without preparing for public discussion of it. The outcome was fairly well dictated by that framing. This seems like miscalculation of a high order and communications malpractice.

We in Washington, D.C. pay attention to how issues are framed and communicated. It looks like someone on the Koch side didn’t think this thing through and didn’t have a communications plan, so the opening salvo in the Koch/Cato dispute was a Koch-side backfire.

It’s well known now that a long-simmering contest for control of the Cato Institute has bubbled over. On the last day of February, Charles and David Koch filed a lawsuit against the widow of former Cato chairman Bill Niskanen, Cato president Ed Crane, and Cato itself seeking to have Niskanen’s shares returned to Cato or granted to the remaining shareholders under the terms of a shareholder agreement. This would give the Kochs (one of whom participated in the founding of Cato) majority ownership, allowing them to elect a majority of Cato’s board. It would also position them to extinguish Crane’s shares so as to gain 100% control.

Cato disputes the Kochs legal positions, and it believes that their success “would swiftly and irrevocably damage the Cato Institute’s credibility as a non-partisan, independent advocate for free markets, individual liberty, and peace.”

The quote just above is from Cato’s “Save Cato” web page, but the more interesting commentary has been scattered by Cato staff and leadership across various blogs and outlets (e.g., Jerry Taylor, Gene Healy, Jason Kuznicki, Julian Sanchez, Jonathan Blanks, Justin Logan, Trevor Burris, Michael Cannon). There has been lots of commentary from many quarters, of course, led by Jonathan Adler at the Volokh Conspiracy. Really, there’s too much commentary to list.

A Facebook page dedicated to “saving” Cato has zoomed past 5,000 supporters.

Now it’s my turn. Putting my thoughts here on TLF is a stretch because I won’t be talking about tech. Think of this as the “liberation” part of Tech Liberation Front. The reason many of my colleagues and I do what we do here is because of both Ed Crane and the Kochs, and the institutions they have built and nurtured. Now these giants in the modern liberty movement are fighting.

That’s a shame for a lot of reasons. There is the overall cause of freedom, of course, our part of which is side-tracked and sullied by the dispute. We Catoites love what we do, fighting for freedom backed by thousands of highly engaged supporters. But don’t go all analytical and forget the hundred-plus Cato staff whose livelihoods and careers are under a cloud. That’s concerning and frustrating, especially for the people with children. Once or twice, I’ve let my colleagues know when I found their arguments overwrought. That personal dimension might be why.

Yes, Cato people are people. And so are Koch people. This is important to surface as part of the theme I want to focus on: miscalculation.

Perhaps because we’re intellectuals, maybe out of courtesy, or in pursuit of simplicity, much commentary has forgotten that all the actors in this drama are people. And people make mistakes. Lots of ’em.

People on the Cato side have treated the Koch side as monolithic and acting in unison. From inside Cato, it’s rather obviously not, but the Koch side likely perceives the Cato side as monolithic and similarly orchestrated. But when I talk here about “the Kochs” or the “Koch side,” I do not mean the brothers as a unit, or either of them individually. I rather doubt that these successful businessmen devote a huge percentage of their time to their ideological work (and hope they don’t, for their sake!).

The “Koch side” is actually a variety of different actors, including each of the Koch brothers themselves and any number of advisors and allies. The things any one person has said, the suit the Kochs’ attorneys filed in their names, and the press releases put out for them are the products of different actors within the “Koch side,” each of which may have different motivations and strategies.

Examining the Koch side’s actions, I have a suspicion that it is not acting in a highly coordinated and planned fashion, and that it is not actually pursuing the interests of the Koch brothers all that well. That’s saying a lot, and it’s a little presumptuous. I hope to bring the evidence forth in a series of posts.

My work at Cato on counterterrorism, including the production of the book Terrorizing Ourselves, is something no politically active group would do because it doesn’t help one party or the other. Same goes for my anti-national-ID work. Growing the government is a bipartisan project. But I think of the counterterrorism work in particular because it exposed me to national security and foreign policy concepts that pertain well here.

In national security and foreign policy, no theme is stronger than the problem of miscalculation. So often, international powers misunderstand one another and misinterpret each others’ actions. They develop theories of each others’ behavior (treating each other as monoliths), then act and react based on those theories until conflagration ensues. The victor writes history.

As we libertarians all know, war kills people and saps the world of wealth. Now “war” among libertarian powers causes libertarians to suffer, and it saps strength from the libertarian movement. So we really, really ought to avoid miscalculation, oughtn’t we?

It seems to me that a central miscalculation on the Koch side is to misapprehend what the Cato Institute is and what gives it value.

Before I get to that, let me start with a premise: I believe the Kochs want what’s best for liberty. The Kochs’ work to advance liberty over many decades is very strong evidence that they want to see its advance continue. The statements put out in their names are creditable evidence of the same. This doesn’t exclude other goals within the Koch “side” or secondary goals on the part of the Koch brothers themselves, but consistency on liberty over decades suggests that the Kochs themselves want Cato to remain an organization that advocates liberty well.

Now, what makes Cato a valuable part of the libertarian movement? Here, the Koch side is not calculating well.

Cato is not a profit-making enterprise, but concepts from that world apply fairly well to its examination. Take “going-concern value.” That’s the value of an enterprise as an ongoing entity, over and above the value of its assets if liquidated. Going-concern value includes liquidation value plus the value of intangible assets such as goodwill.

Goodwill. That’s the positive reputation of an enterprise, the “something” that enables it to do more with a given set of intellectual and physical assets than another enterprise could with the same assets. Reputation (as you can learn starting on page four of my recent Cato policy analysis) is the set of conclusions one makes by combining identity and biography.

Cato has a clear identity—a brand—and it has a thirty-five-year history/biography of being a reasonable, consistent, and honest intellectual advocate for libertarian and free-market policies. This has caused a number of non-libertarians to come to Cato’s defense in the current dispute.

The simpleton might use this against Cato—“Aha! They’re admired on the left!”—but people who care about persuasion know that gains come from bringing fence-sitters to the side of liberty. Gains come from convincing opponents of liberty to moderate their positions. Real persuasion happens in small increments over a long time, and it comes from engaging with the other side.

There are lots of inputs into reputation, and one of them for advocacy groups is most definitely funding and control. One need only look at SourceWatch to see that ownership and control is an important input into reputation. (Again, because of the propensity for cheap argument in some quarters: Citing to SourceWatch is not endorsement. I am pointing out a reality of participation in public debate.)

The properties of reputation are somewhat like the properties of physical assets. A machine that is not maintained will start to work less well over time or suffer catastrophic failure at some point. A reputation that is not maintained will slide or even collapse. Cato has ideological opponents who are constantly and often unfairly trying to tear down the organization’s repuation, mostly using proxies for substance such as funding and control. (It’s the easy way. Debating us on the merits is hard.)

It is not to endorse that I state the following: The Koch Brothers do not have the same reputation as Cato. The Center for American Progress puts out reports that call the Kochs “financiers of the radical right” while it joins with Cato and Cato scholars on issues like immigration, gay marriage, national security, and transparency. For whatever reason, while Cato has successfully cultivated the currency of legitimacy in Washington, D.C., the Kochs unfortunately have not. I believe they have tried, and the Kochs’ reputation in the public policy arena is undeserved in my opinion, but it is a reality. (Speaking of cheap argumentation, some have argued that the Cato side is buying into or fostering “lefty” arguments about the Kochs. There is very little evidence of this, and the proponents of that idea should put themselves to proof.)

A Koch takeover would affect the reputation of Cato. Such a thing generally wouldn’t happen with an industrial firm, but a change in corporate control of an advocacy group most definitely would affect its operations. A Koch takeover would degrade Cato’s reputation, its goodwill, and its value as a going concern. Cato would lose some measure of its ability to persuade. I don’t believe the Koch side fully considered this effect when it embarked on its current course of action.

This miscalculation permeates the Koch/Cato dispute. Jonathan Adler recognized it insightfully in the early going:

Even if one assumes that the Kochs have better ideas for how Cato should direct its resources, know more about how to advance individual liberty, and are correct that the Institute is too “ subject to the personal preferences of individual officers or directors,” any benefit from whatever changes they could make will be outweighed to the permanent damage to Cato’s reputation caused by turning it into a de facto Koch subsidiary.

I hear a counter-claim to this argument: Unfairness! Ed Crane pushed this idea! He pushed the idea of a ‘takeover’!

Maybe. Ed’s an interesting one. And if I’m not fired for something in this post (!), I’ll say more later about him. But “unfairness” is not an answer to the underlying point.

Think of that industrial machine. Without proper maintenance, it either degrades over time or seizes up. In the end, it doesn’t matter which. The enterprise can no longer produce what it did. I have a hard time blaming the person who built an enterprise over thirty-five years for hastening the discussion about whether his machine will run better in the next thirty-five years, or whether it will cough and sputter, potentially to grind to a halt.

I’ve focused on miscalculation on the Koch side rather than the Cato side. The cause of this is not simply Cato partisanship (which I fully admit to). I will explain the reason for focus on the Kochs in a future post—and why I think it is a product of more Koch-side miscalculation.

The Federal Trade Commission issued a report today calling on companies “to adopt best privacy practices.” In related news, most people support airline safety… The report also “recommends that Congress consider enacting general privacy legislation, data security and breach notification legislation, and data broker legislation.”

This is regulatory cheerleading of the same kind our government’s all-purpose trade regulator put out a dozen years ago. In May of 2000, the FTC issued a report finding “that legislation is necessary to ensure further implementation of fair information practices online” and recommending a framework for such legislation. Congress did not act on that, and things are humming along today without top-down regulation of information practices on the Internet.

By “humming along,” I don’t mean that all privacy problems have been solved. (And they certainly wouldn’t have been solved if Congress had passed a law saying they should be.) “Humming along” means that ongoing push-and-pull among companies and consumers is defining the information practices that best serve consumers in all their needs, including privacy.

Congress won’t be enacting legislation this year, and there doesn’t seem to be any groundswell for new regulation in the next Congress, though President Obama’s reelection would leave him unencumbered by future elections and so inclined to indulge the pro-regulatory fantasies of his supporters.

The folks who want regulation of the Internet in the name of privacy should explain how they will do better than Congress did with credit reporting. In forty years of regulating credit bureaus, Congress has not come up with a system that satisfies consumer advocates’ demands. I detail that government failure in my recent Cato Policy Analysis, “Reputation under Regulation: The Fair Credit Reporting Act at 40 and Lessons for the Internet Privacy Debate.”