Articles by Jim Harper

Jim is the Director of Information Policy Studies at The Cato Institute, the Editor of Web-based privacy think-tank Privacilla.org, and the Webmaster of WashingtonWatch.com. Prior to becoming a policy analyst, Jim served as counsel to committees in both the House and Senate.

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Maryland’s Asinine Surreptitious Recording Law

by Jim Harper on April 14, 2010 · 8 comments

According to the Reporters Committee for Freedom of the Press' First Amendment Handbook, twelve states forbid the recording of private conversations without the consent of all parties. Maryland is one of them.

And now a guy who was recording his own antics on a motorcycle is facing a felony charge because he continued recording during a traffic stop. David Rittgers has more on the Cato@Liberty blog.

Laws that ban all surreptitious recording to get at wrongful recording are overbroad and damaging. Laws that prevent the recording of police officers are particularly wrongheaded. Maryland needs some technology liberation.

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My Network Neutrality Regulation Podcast

by Jim Harper on April 13, 2010 · 0 comments

Late last week, I did a Cato podcast on the D.C. Circuit’s decision finding that Congress hasn’t given the FCC authority to regulate Internet access.

Adam says it’s good and I should post it. I say it’s alright and OK, Adam, I will.

One final point: I don’t like the white space that appears when a blog post with a right-justified picture or object in it but not very much text, so this sentence is to fill that space. (I do crack me up!)

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The NewsHour on Neutrality Regulation

by Jim Harper on April 12, 2010 · 6 comments

I sometimes enjoy picking nits with or lampooning our friend Scott Cleland, but today write to point out what an excellent job he did of advocating against net neutrality regulation last week on the NewsHour.

The set-up piece is interesting because of its government-centric take. Net neutrality, it says, is “a set of principles adopted by the Federal Communications Commission in 2005 that limits the ability of Internet providers to treat sites differently.”

The better view, I think, is that neutrality is one of “a set of technical principles that have been implicit in [the Internet’s] design since it began life.” Hey, NewsHour, giving the FCC credit for the neutral engineering of the Internet is like giving the rooster credit for the sunrise.

There’s a telling omission in the NewsHour’s telling of the Comcast Kerfuffle. See if you catch it:

The case began with actions by Comcast in 2007 to interfere with an online service called BitTorrent, a file-swapping site that allows consumers to swap movies and other material over the Internet, files that use a great deal of bandwidth. The FCC then told Comcast it could not block subscribers from using BitTorrent under the commission’s net neutrality rules.

Left out: Comcast had ceased interfering with BitTorrent before the FCC acted due to a variety of market pressures.

But take a look at the piece and Scott’s good advocacy in the discussion that follows the set-up:

Gigi Sohn, who I personally respect and who I agree with on many issues, reaches a bit far when she argues that Comcast degraded BitTorrent because it was a file-sharing site “unpopular with some folks in Congress and some folks elsewhere.” Collapsing net neutrality regulation and intellectual property issues may be good for Public Knowledge’s base, but it confuses many issues and weakens Public Knowledge’s arguments and support.

I think the record is pretty clear that Comcast degraded BitTorrent because of a conflict between the BitTorrent protocol and the DOCSIS protocol running on Comcast’s cable plant. (I know I can rely on comments to correct me or bring nuance to this claim.)

Neutrality was not a gift from government, and I don’t think making a mandate of a good engineering principle will improve the functioning of the Internet or the Internet ecosystem.

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Phew! The Internet Still Works!

by Jim Harper on April 9, 2010 · 3 comments

So reports the Internet Freedom Coalition, debunking a variety of shrillitudes from advocates who want the government to regulate the Internet.

And the American Legislative Exchange Council has joined a chorus of support for the D.C. Circuit’s decision upholding the rule of law in the regulatory environment.

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REAL ID Continues its Long, Slow Failure

by Jim Harper on April 9, 2010 · 2 comments

REAL ID continues its long, slow failure. The federal government’s national ID plans continue to bash against the shoals of state and popular opposition.

Late last month, the governor of Utah signed H.B. 234 into law. The bill prohibits the Utah driver license division from implementing REAL ID. That brings to 25 the number of states rejecting the national ID law, according to the Tenth Amendment Center.

And the state of Nevada, one of few states that had been working to get in front of REAL ID, is reconsidering. With wait times at Las Vegas DMVs reaching two to four hours, the legislature may soon allow a temporary REAL ID implementation measure signed last year to lapse—this according to the Ely (NV) News.

Congress has attempted to circumvent the growing state opposition to REAL ID with the now-stalled PASS ID legislation. It basically would rename REAL ID so as to nullify the many state resolutions and laws barring implementation of the national ID law because they refer to the May 2005 “REAL ID” law specifically.

But PASS ID is the same national ID, it has all the privacy issues of REAL ID, and its costs would be as great or greater than REAL ID.

That doesn’t mean national ID supporters in Congress won’t try to sneak the REAL ID revival bill into law sometime later this year, of course . . .

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Consumers in the Driver’s Seat—Oh, the Humanity!

by Jim Harper on April 7, 2010 · 9 comments

Yesterday, if you paid attention reeeeally carefully (1, 2, 3, 4), you probably figured out the D.C. Circuit had ruled that Congress hadn’t given the Federal Communications Commission power to regulate the Internet and that the FCC couldn’t bootstrap that power from other authority. It was a rare but welcome affirmation that the rule of law might actually pertain in the regulatory area.

But the Open Internet Coalition put out a release containing threat exaggeration to make Dick Cheney blush:

“Today’s DC Circuit decision . . . creates a dangerous situation, one where the health and openness of broadband Internet is being held hostage by the behavior of the major telco and cable providers.”

That’s right. It’s a hostage-taking when consumers and businesses—and not government—hammer out the terms and conditions of Internet access. Inferentially, the organization representing Google, Facebook, eBay, and Twitter believes that Internet users are too stupid and supine to choose the Internet service they want.

What these content companies are really after, of course, is government support in their tug-of-war with the companies that transport Internet content. It’s hard to know which produces the value of the Internet and which should gain the lion’s share of the rewards. Let the market—not lobbying—decide what reward content and transport deserve for their roles in the Internet ecosystem.

As I said of the Open Internet Coalition’s membership on a saltier, but still relentlessly charming, day: “[T]hese companies are losing their way. The leadership of these companies should fire their government relations staffs, disband their contrived advocacy organization, and get back to innovating and competing.”

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More on Net Neutrality Regulation: Suppose Free Press Called a Crisis and Nobody Noticed?…

by Jim Harper on April 6, 2010 · 9 comments

In the wake of yesterday’s ruling in the D.C. Circuit that the FCC had exceeded its authority in attempting to regulate access to the Internet, I did a number of radio interviews and a radio debate with Derek Turner of Free Press, a leading advocate of Internet regulation.

The debate was a brief, fair exchange of views. I was struck, though, to hear Turner refer to the situation as a “crisis.” Sure enough, in a Free Press release, Turner says three times that the ruling creates a “crisis.”

Recall that in 2007 Comcast degraded the service it provided to a tiny group of customers using a bandwidth-hogging protocol called BitTorrent. Recall also that before the FCC acted, Comcast had stopped doing this, relenting to customer complaints, negative attention in news stories, and such.

In the wake of the D.C. Circuit ruling and the crisis it has created, Internet users can expect the following changes to their Internet service: None.

Wow. With crises like these, who needs tranquility?

“As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites,” the release intones.

That would be worrisome, though still not much of a crisis—except that Comcast would be undercutting its own business by doing that. Did you know also that no federal regulation bars people from burning their furniture in the backyard? That’s the same kind of problem.

As Tim Lee points out in his paper, “The Durable Internet,” consumer pressures are likely in almost all cases to rein in undesirable ISP practices. Computer scientist Lee presents examples of how ownership of communications platforms does not imply control. If an ISP persists in maintaining a harmful practice contrary to consumer demand—and consumers can’t express their desires by switching to another service—we can talk then.

In the meantime, this “crisis” has me slightly drowsy and eager to go outside and enjoy the spring weather.

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New America: Can You Hear Me Whining Now?

by Jim Harper on April 2, 2010 · 4 comments

In a Cato@Liberty post, “Cell Phones and Ingratitude,” David Boaz reproaches the New America Foundation for today’s complaint-fest, “Can You Hear Me Now? Why Your Cell Phone is So Terrible”:

This is an old story. Markets, property rights, and the rule of law provide a framework in which technology and prosperity soar, and some people can only complain. I was reading some of Deirdre McCloskey’s forthcoming book Bourgeois Dignity this week. She points out that the average person lived on the equivalent of $3 a day in 1800. Today there are six and a half times as many people, but the average person earns and consumes 10 times as much, far more than that in the most capitalist countries. And yet some people, most leftist intellectuals, continue to ignore what McCloskey calls “the gigantic gains from bourgeois dignity and liberty” and to denounce the markets, economic liberalization, and globalization that have liberated billions of people from eons of back-breaking labor.

This is an event I’m not going to attend. I mean, like, they’re not even serving food!

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How Scott Cleland and the Zodiac Killer are Alike

by Jim Harper on March 30, 2010 · 8 comments

Ever since he’s been blogging, Scott Cleland’s blogging has been in overdrive. However, anyone willing to look behind the curtain of his latest post will discover that many of the attributes of Scott Cleland are attributes that are shared by the Zodiac Killer.

First, Scott Cleland, like the Zodiac Killer, has a face. Eyes, nose, mouth—they’re all there. They are alike in this respect—Scott Cleland and the Zodiac Killer are both, unrepentantly, people with faces.
Second, Scott Cleland, like the Zodiac Killer, speaks English. We know this from his blog posts—which are written in English—the same language the Zodiac killer used during his murderous spree in the San Francisco Bay Area between December 1968 and October 1969.
Third, delving more deeply into the language of the Zodiac Killer and Scott Cleland, both use articles like “the”; “a”; and “an”. An equal propensity to use prepositions inhabits the writing styles of Scott Cleland and the Zodiac Killer.
Fourth, like the top suspect in the Zodiac Killer case, DNA evidence does not implicate Scott Cleland. Diabolically, he has done nothing to indicate his participation in these crimes.

(Dropping the imitative send-up) Scott’s recent post implicating Google as similar to China is probably best described as conflation, a logical fallacy in which similarities between two distinct entities collapse them together.

Scott has many similarities to the Zodiac Killer, but lacks the one that matters: he never killed anybody.

Likewise, Google has many similarities with the Chinese government—all organizations do—but it lacks the one that matters: Google makes no claim to exclusive power to initiate force. That is the hallmark of government which is what makes government so dangerous. Related: Unlike China, Google never killed anybody.

In the struggle between Google and China, there is no moral equivalency. China oppresses a billion people. Google enlightens.

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Earmark Requests Going Online—But in the Wrong Formats

by Jim Harper on March 28, 2010 · 2 comments

earmarkpig As required by rules instituted last year, members of Congress are posting their earmark requests online. And in a small improvement over past practice, the House Appropriations Committee is posting links to all those pages (in alphabetical order and by state). The Senate Appropriations Committee is doing the same.

So, great. You can go line-by-line and figure out what requests your member of Congress has put in. But what’s the total number of your members’ requests? What’s the total amount of his or her requests? Who requested the most earmarks, in dollars or in number? Where in your district is the money supposed to go?

HTML pages and PDF documents are very hard to work with and don’t allow us to answer these questions. The Earmarkdata.org project is asking Congress to produce information about what it’s doing in formats sites like WashingtonWatch.com can use.

If you haven’t already, please sign the petition at Earmarkdata.org And please tell a friend about this effort too.