Articles by Jim Harper

Jim HarperJim 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.


Privacy Not a Focus of Senate Mobile Privacy Hearing

by on May 10, 2011 · 0 comments

This morning, the Senate Judiciary Committee’s Subcommittee on Privacy, Technology, and the Law had a hearing entitled: “Protecting Mobile Privacy: Your Smartphones, Tablets, Cell Phones and Your Privacy.” It was a remarkably scattered affair, and I blogged three key—and very distinct—elements of it on the Cato@Liberty blog:

  • The Department of Justice used this “mobile privacy” hearing to call for increased surveillance of Internet and mobile phone users.
  • To escape a prosecutorial dead-end, Senator Blumenthal (D-CT) strongly suggested that he would outlaw the collection of radio signals. Where this government power would lead is quite profound.
  • Ignoring mobile privacy, Senator Schumer (D-NY) touted his hobby-horse, mobile app censorship.

Valid concerns with what mobile operating system providers Google and Apple have done with location information were somewhat lost in this disjointed and confused hearing.

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Transparency: The Inside and Outside Camps

by on May 9, 2011 · 2 comments

Late last week, the Project on Government Oversight‘s Danielle Brian took a little umbrage at a Huffington Post piece by former U.S. Deputy Chief Technology Officer Beth Noveck, who had been implementing the Obama Administration’s Open Government Initiative until she recently returned to New York Law School.

Brian’s piece suggests a slight schism in the transparency community, between what I believe are the “insider” and “outsider” camps. Brian leaves to the end a crucial point: “[C]an’t the two camps in the open government world peacefully co-exist? There’s just too much work to be done for us to get bogged down in denigrating each others’ agendas.” They most certainly can.

Noveck was a bit dismissive of the open government movement as perceived by much of the transparency community. “Many people, even in the White House,” she wrote, “still assume that open government means transparency about government.” Actually, Noveck continued, open government is “open innovation or the idea that working in a transparent, participatory, and collaborative fashion helps improve performance, inform decisionmaking, encourage entrepreneurship, and solve problems more effectively. By working together as team [sic] with government in productive fashion, the public can then help to foster accountability.”

Visualize the difference between these two approaches: open government as a tool for public oversight and open government as a tool for public participation. When open government is about public oversight, the wording connotes the public looking down from above on the work its servants are doing. When open government is about collaboration, the public is at best an equal partner, allowed to participate in the work of governing. Noveck’s unfortunate language choice treats accountability as a kind of dessert to which the public will be entitled when it has donated sufficient energies to making the government work better.

The administration’s December 2009 open government memorandum predicted this divide. In calling for each agency to publish three “high-value data sets,” it said:

High-value information is information that can be used to increase agency accountability and responsiveness; improve public knowledge of the agency and its operations; further the core mission of the agency; create economic opportunity; or respond to need and demand as identified through public consultation.

As I noted at the time, it’s a very broad definition.

Without more restraint than that, public choice economics predicts that the agencies will choose the data feeds with the greatest likelihood of increasing their discretionary budgets or the least likelihood of shrinking them. That’s data that “further[s] the core mission of the agency” and not data that “increase[s] agency accountability and responsiveness.” It’s the Ag Department’s calorie counts, not the Ag Department’s check register.

Noveck wants us to put the calorie counts to use. Brian wants to see the check register.

There is no fundamental tension between these two agendas. Both are doable at the same time. The difference between them is that one is the openness agenda of the insider: using transparency, participation, and collaboration to improve on the functioning of government as it now exists.

The openness agenda of the outsider seeks information about the management, deliberation, and results of the government and its agencies. It is a reform (or “good government”) agenda that may well realign the balance of power between the government and the public. That may sound scary—it’s certainly complicates some things for insiders—but the “outsider” agenda is shared by groups across the ideological and political spectra. Its content sums to better public oversight and better functioning democracy, things insiders are not positioned to oppose.

I think these things will also reduce the public’s demand for government, or at least reduce the cost of delivering what it currently demands. But others who share the same commitment to transparency see it as likely to validate federal programs, root out corruption, and so on (a point I made in opening Cato’s December 2008 policy forum, “Just Give Us the Data!”) There are no losers in this bet. Better functioning programs and reduced corruption are better for fans of limited government than poorly functioning programs and corruption.

Forward on all fronts! The existence of two camps is interesting, but not confounding to the open government movement.

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And the Winner Is . . . !

by on April 25, 2011 · 0 comments

Melissa Yu is the winner of first prize in the middle school category of C-SPAN’s StudentCam 2011 competition. Her video, “Net Neutrality: The Federal Government’s Role in Our Online Community,” is an eight-minute look at the push for regulation of Internet service with an emphasis appropriate for students on how the three branches of government have each been involved in the story up to now.

Many TLF readers already know the story and the key players, but if you haven’t been following along, or if you want a refresher, here’s a better video than I could have produced in eighth grade. Or now. Congratulations, Melissa Yu!

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FERPA Regulation Amendments as a Teachable Moment

by on April 16, 2011 · 6 comments

When legislation or regulation is what you rely on for privacy protection, your privacy protection relies on political consensus staying the same. When political consensus changes, your privacy can go away.

Witness the Department of Education’s proposed change to FERPA regulations—the Family Education Rights and Privacy Act—to make more data about students available to more people. The privacy protections that have applied until now are unlikely to withstand the Education Department’s belief that using data about students is more important.

To anyone who relied on FERPA for privacy protection: Oops!

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Exploiting Copyrightunities

by on April 13, 2011 · 1 comment

Reputation oils the gears of many markets. People’s expressions of opinion about goods and services help establish the reputations of sellers and service providers. Knowing that they are the subject of reputation systems that they do not control, service providers do a better job on average than they otherwise would. Slacking off even once can sully a reputation and produce well-placed economic sanctions: people won’t do business. Withdrawing reputation information from the public sphere will generally slow the process of winnowing bad actors out of any market and rewarding most highly the good ones. Commercial opinion is a little engine of positive externalities.

Federal privacy regulations under the Health Insurance Portability and Accountability Act shaped the information terms in health care services in ways people are right to disagree with. So it might be tempting to trade away one’s right to criticize a doctor for greater privacy protection. But a new site called DoctoredReviews.com argues against that bargain—indeed, it argues the bargain is illusory—and it criticizes the use of copyright law to enforce the deal.

Apparently, a group called Medical Justice is offering doctors a form contract to give to patients that holds out greater privacy protection for the patient if the patient will refrain from criticizing the doctor. That’s a deal people should be free to make, though—again—it’s probably a bad one. One way that the deal is enforced is by giving the doctor a copyright in the expressions of opinion that patients may issue. This gives the doctor a right to issue “take-down” notices to web sites where content critical of them is found.

This peculiar use of copyright takes the virtuous cycle where a patient talking about an experience with a doctor benefits others, and doesn’t just nip it—bringing it back to zero. It places enforcement costs on third parties. The enforcement of copyrights in commentary pushes negative externalities onto web site operators as it deprives markets of useful information.

The DoctoredOpinions site has a good, concise explanation of the law as it relates to website owners. I think copyright has some explaining to do—its distinction from rights in physical property is in high relief—if its enforcement can draw disinterested and uninvolved third parties into an administrative/litigation vortex.

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The “Privacy Bill of Rights” is in the Bill of Rights

by on April 13, 2011 · 0 comments

Every lover of liberty and the Constitution should be offended by the moniker “Privacy Bill of Rights” appended to regulatory legislation Senators John Kerry (D-MA) and John McCain (R-AZ) introduced yesterday. As C|Net’s Declan McCullagh points out, the legislation exempts the federal government and law enforcement:

[T]he measure applies only to companies and some nonprofit groups, not to the federal, state, and local police agencies that have adopted high-tech surveillance technologies including cell phone tracking, GPS bugs, and requests to Internet companies for users’ personal information–in many cases without obtaining a search warrant from a judge.

The real “Privacy Bill of Rights” is in the Bill of Rights. It’s the Fourth Amendment.

It takes a lot of gall to put the moniker “Privacy Bill of Rights” on legislation that reduces liberty in the information economy while the Fourth Amendment remains tattered and threadbare. Nevermind “reasonable expectations”: the people’s right to be secure against unreasonable searches and seizures is worn down to the nub.

Senators Kerry and McCain should look into the privacy consequences of the Internal Revenue Code. How is privacy going to fare under Obamacare? How is the Department of Homeland Security doing with its privacy efforts? What is an “administrative search”?

McCullagh was good enough to quote yours truly on the new effort from Sens. Kerry and McCain: “If they want to lead on the privacy issue, they’ll lead by getting the federal government’s house in order.”

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Regulators are Like Tommy Boy

by on April 11, 2011 · 4 comments

…says Nick Schulz, in partial answer to the question why regulators want to control telecom and wireless even though those sectors currently enjoy “rising customer satisfaction, falling prices, enviable investment levels, and greater innovation—even during the Great Recession.”

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Surveillance, San Francisco-Style

by on April 6, 2011 · 638 comments

San Francisco’s Entertainment Commission will soon be considering a jaw-dropping attack on privacy and free assembly. Here are some of the rules the Commission may adopt for any gathering of people expected to reach 100 or more:

3. All occupants of the premises shall be ID Scanned (including patrons, promoters, and performers, etc.). ID scanning data shall be maintained on a data storage system for no less than 15 days and shall be made available to local law enforcement upon request.

4. High visibility cameras shall be located at each entrance and exit point of the premises. Said cameras shall maintain a recorded data base for no less than fifteen (15 days) and made available to local law enforcement upon request.

Would you recognize a police state if you lived in one? How about a police city? The First Amendment right to peaceably assemble takes a big step back when your identity data and appearance are captured for law enforcement to use at whim simply because you showed up. (ht: PrivacyActivism.org)

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Messing With Your Head: MSFT Costs World Economy $500 Billion

by on March 31, 2011 · 1 comment

The English language is public domain (the language itself, not everything said with it). So it’s worthless, right? No dollars change hands when people use it. Perhaps it could be made worth something if someone were to own it. The owner could charge a license fee to people who use English, making substantial revenue on this suddenly valuable language.

Congress can take works in the public domain and make intellectual property of them according to the Tenth Circuit Court of Appeals in a case that approved Congress “restoring” public domain works to copyrighted status. (The case is Golan v. Holder, and the Supreme Court has granted certiorari.)

But would we really be better off if the English language were given a dollar value through the mechanism of ownership and licensing? No. What is now a costless positive-externality machine would turn into a profit-center for one lucky owner. The society would not be better off, just that owner. If we had to pay for a language, we would regard that as a cost.

In a similar vein, Mike Masnick at TechDirt indulges the somewhat tongue-in-cheek observation that Microsoft costs the world economy $500 billion by accumulating to itself that would have gone to other things. It’s a sort of Broken Window fallacy for intellectual property: the idea that creating ownership of intellectual goods creates value. What is not seen when intellectual property is withheld from the public domain is the unpaid uses that might have been made of it.

Now, Microsoft has reaped wonderful benefits from its intellectual creations because it has bestowed wonderful benefits on societies across the globe. But might it have provided all these benefits for slightly less reward, leaving more money with consumers for their preferred uses?

This is all a way of challenging the mental habit of assuming that dollars are equal to value. In the area of intellectual property (whether or not protected by federal statutes), things that have no effect on the economy (because they’re in the public domain) may have huge value. Things privately owned because of intellectual property law may have less value than they should, even though their owners collect lots of money.

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