During my summer internship at CEI, a couple of us interns discussed the book Cato’s Robert Levy published last May, The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. We looked at Levy’s list of the worst decisions and sent each other lists of our own. Now that I’m taking ConLaw, I feel as though the time has come to post my lists of the twelve worst and the twelve best Supreme Court decisions of all time. It is by no means an exhaustive list. My inclusion of different cases than Levy does not indicate that I disagree with his assessment that those decisions are terrible – just maybe not as bad as the ones I select.
The Worst:
- The Slaughter-House Cases (1873). The very worst decision ever made by the US Supreme Court. Eviscerated the 14th Amendment only five years after its adoption. It is best known for reading the Privileges or Immunities Clause, which was supposed to be (and could have been) a vehicle for both incorporation and unenumerated rights, out of the Constitution. But it also wrote out the Due Process Clause and the Equal Protection Clause, though those two clauses eventually crawled back into existence, to a degree.
- Katzenbach v. McClung (1964). It was tough to decide which of the various cases reading the Commerce Clause expansively enough to permit Congress to pass any law it desires, thus destroying the basis of the federal government as one of defined and limited powers to include. But McClung seems to be the most expansive in both its result and its holding.
What would it take to create a more secure Internet? That’s what John Markoff explores in his latest New York Times article, “Do We Need a New Internet?” Echoing some of the same fears Jonathan Zittrain articulates in his new book The Future of the Internet, Markoff wonders if online viruses and other forms of malware have gotten so out-of-control that extreme measures may be necessary to save the Net. Compared to when cyber-security attacks first started growing over 20 years ago, Markoff argues that:
[T]hings have gotten much, much worse. Bad enough that there is a growing belief among engineers and security experts that Internet security and privacy have become so maddeningly elusive that the only way to fix the problem is to start over.
Like many others, Markoff fingers anonymity as one potential culprit:
The Internet’s current design virtually guarantees anonymity to its users. (As a New Yorker cartoon noted some years ago, “On the Internet, nobody knows that you’re a dog.”) But that anonymity is now the most vexing challenge for law enforcement. An Internet attacker can route a connection through many countries to hide his location, which may be from an account in an Internet cafe purchased with a stolen credit card. “As soon as you start dealing with the public Internet, the whole notion of trust becomes a quagmire,” said Stefan Savage, an expert on computer security at the University of California, San Diego.
Consequently, Markoff suggests that:
A more secure network is one that would almost certainly offer less anonymity and privacy. That is likely to be the great tradeoff for the designers of the next Internet. One idea, for example, would be to require the equivalent of drivers’ licenses to permit someone to connect to a public computer network. But that runs against the deeply held libertarian ethos of the Internet.
Indeed, not only does it run counter to the ethos of the Net, but as Markoff rightly notes, “Proving identity is likely to remain remarkably difficult in a world where it is trivial to take over someone’s computer from half a world away and operate it as your own. As long as that remains true, building a completely trustable system will remain virtually impossible.” I’ve spent a lot of time writing about that fact here and won’t belabor the point other than to say that efforts to eliminate anonymity for the entire Internet would prove extraordinarily intrusive and destructive — of both the Internet’s current architecture and the rights of its users. There’s just something about a “show-us-you-papers,” national ID card-esque system of online identification that creeps most of us out. That’s why I spend so much time fighting age verification mandates for social networking sites and other websites; it’s the first step down a very dangerous road.
But what if we could apply such solutions in a narrower sense? That is, could we create more secure communities within the overarching Internet superstructure that might provide greater security? Markoff starts thinking along those lines when he suggests…
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Micropayments are an idea that simply won’t die. Every few years, there’s a resurgence of interest in the idea. Critics predict they won’t work. The critics are then proved right, as companies founded to promote micropayments inevitably go belly-up.
The latest iteration comes courtsey of
Time magazine, which recently saw fit to run a cover story about how micropayments will save newspapers. And Shirky once again steps up to the plate to explain why micropayments won’t work any better in 2009 than they did in 1996, 2000, or 2003. (I wrote up Shirky’s arguments here and here) But for my money, the best response to the Isaccson piece is at the Abstract Factory blog:
Why did Time’s editors choose to run this article, rather than, for example, an article by Shirky or Odlyzko or any number of people who would write something more clueful? I hypothesize two reasons. First, Time’s editors themselves do not have a clue, and also do not have any problem publishing articles on a subject they have no clue about. Second, look at the author blurb at the bottom of the article (emphasis mine):
Isaacson, a former managing editor of TIME, is president and CEO of the Aspen Institute and author, most recently, of Einstein: His Life and Universe..
When you’re a member of the club, your buddies will publish any old crap you write; better you than some stupid professor nobody knows. We’ve seen this before.
I mentioned irony earlier. Isaacson has filigreed the irony with extraordinary precision. His article is inferior to material produced for free online by people who draw their paychecks from other sources (Shirky and Odlyzko are both professors who also work(ed) in the private technology sector). Furthermore, it is inferior as a direct consequence of structural weaknesses of traditional magazines. Despite its inferior quality, it presumes its own superior status by ignoring or dismissing contributions to the discussion which occurred outside of traditional “journalistic” media. Finally, taking that superiority as a given, it argues, poorly, that people ought to pay money for products like itself, because (quoting Bill Gates) nobody can “afford to do professional work for nothing.”
In short, Isaacson’s article not only fails to make its case, it actively undermines its own case while doing so.
Quite so. There’s more good stuff where that came from.
. . . or does he?
Friday afternoon, the White House blog announced that the American Recovery and Reinvestment Act of 2009 was posted online for public comment. This is good evidence that the President intends to honor his campaign promise to post legislation online and take public comment for five days before signing it.
But it’s not great evidence of that.
The Whitehouse.gov post went up at 2:05 pm, but the House didn’t vote until 2:24 pm and the Senate voted at 05:29 pm. (Click on the “votes” to see how your representatives did.) As of Saturday afternoon, the Thomas legislative tracking system doesn’t indicate that the bill has been presented to the President yet. And news reports indicate that the President will sign the bill on Monday, three days after it was “pre-“posted.
Regular order, Mr. President. When a bill is presented to you, post it online (at a consistent place on your Web site, not just at ad hoc URLs as you’ve done up to now). Then wait five days, reviewing the comments of the public as you promised to do when you asked the public to elect you.
The steps the White House has taken toward implementing the President’s promise are good steps. (In this Cato daily podcast, I characterized the President’s record on transparency so far as “mixed.”) But the promise is not fulfilled until bills receive five days online airing after they have been presented.
Presentment is a distinct, constitutional step in the legislative process. Until every non-emergency bill is posted online for five days after presentment and before signing, President Obama will look like he’s being driven by events and maneuvered by his elders in Congress.
Statue at FTC Headquarters: “Man Controlling Trade” (We’re rooting for the horse!)
Adam Thierer and I have just released a new PFF paper entitled “Targeted Online Advertising: What’s the Harm & Where Are We Heading?” (PDF) about the FTC’s new “Self-Regulatory Principles for Online Behavioral Advertising.” Adam lampooned some of the attitudes at play in this debate in a great rant yesterday.
But we give the FTC credit for resisting calls to abandon self-regulation, and for its thoughtful consideration of the danger in stifling advertising-the economic engine that has supported a flowering of creative expression and innovation online content and services. That said, we continue to have our doubts about the FTC’s approach, however-well intentioned:
- Where is this approach heading? Will a good faith effort to suggest best practices eventually morph into outright government regulation of the online advertising marketplace?
- What, concretely, is the harm we’re trying to address? We have asked this question several times before and have yet to see a compelling answer.
- What will creeping “co-regulation” mean for the future of “free” Internet services? Is the mother’s milk of the Internet-advertising-about to be choked off by onerous privacy mandates?
We stand at an important crossroads in the debate over the online marketplace and the future of a “free and open” Internet. Many of those who celebrate that goal focus on concepts like “net neutrality” at the distribution layer, but what really keeps the Internet so “free and open” is the economic engine of online advertising at the applications and content layers. If misguided government regulation chokes off the Internet’s growth or evolution, we would be killing the goose that laid the golden eggs.
The dangers of regulation to the health of the Internet are real, but the ease with which government could disrupt the economic motor of the Internet (advertising) is not widely understood-and therein lies the true danger in this debate. The advocates of regulation pay lip service to the importance of advertising in funding online content and services but don’t seem to understand that this quid pro quo is a fragile one: Tipping the balance, even slightly, could have major consequences for continued online creativity and innovation.
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One of the biggest problems with the present copyright system is transaction costs, inhibiting Coasian bargaining. If I want to make a movie and have to get permission from dozens of different copyright owners, I may just give up – especially if I can’t locate some of them. (For more on the specific problem of orphan works, see Tim Lee’s techknowledge article at Cato and some of the many discussions on TLF.)
What copyright regime would best deal with the problem of transaction costs, while ensuring sufficient incentives to create? Robert Merges argues that the fair use doctrine may hamper the formation of copyright clearing-houses (or “collective rights organizations”) and thus increase transaction costs because fair use results in somewhat uncertain rights.
See Robert Merges, Contracting into Liability Rules, 84 Cal. L. Rev. 1293 (1996).
Would compulsory licensing, as is required of song covers, radio, and cable retransmission, solve this problem? But, as I have argued elsewhere, compulsory licensing is price-fixing… and makes particularly little sense in industries where the players are all well-known to each other (like cable rebroadcasting network TV).
I don’t know what the solution is, but I’d like to hear everyone’s proposals for a more efficient (and decently liberty-friendly) system. Registration? Some stringent form of equitable estoppel?
Here’s some good background and analysis from the Congressional Research Service (CRS) about the history and constitutional issues surrounding the Fairness Doctrine. (Matt Lasar has a summary of it over at Ars). The report, authored by CRS legislative attorney Kathleen Ann Ruane, does a nice job of outlining why, given heightened Supreme Court scrutiny of speech controls since the Red Lion days, the Fairness Doctrine would face serious constitutional scrutiny is it was re-instituted today:
It is possible that, in light of the proliferation of different types of media outlets since Red Lion, the Supreme Court will abandon the scarcity rationale for applying a lower standard of scrutiny to restrictions on broadcasters’ speech. If the scarcity rationale is abandoned, the Court will likely begin to apply strict scrutiny to broadcaster speech restrictions like the Fairness Doctrine. Because the Supreme Court has struck down regulations similar to the Fairness Doctrine when applied to other types of media, it seems unlikely that the Fairness Doctrine would survive review under strict scrutiny.
[…]
Assuming that the Supreme Court would continue to apply intermediate scrutiny to government restrictions on broadcasters’ speech, the Court would then need to decide whether the Fairness Doctrine withstands such scrutiny. The Court may choose to uphold
Red Lion and the Fairness Doctrine under the principle of stare decisis, which requires courts to adhere to precedent. The Court also may choose to analyze a newly established Fairness Doctrine in light of evidence regarding its effects on speech that has developed since the Red Lion decision. To do so, it would have to answer two questions: (1) whether the Fairness Doctrine advances a substantial government interest, and (2) whether the doctrine is narrowly tailored to achieve that interest.
But it most certainly would not pass muster is applied to cable or satellite:
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A comment on the WashingtonWatch.com blog caught my eye in the moderation queue. A method for hacking others’ gmail accounts requires you to send your gmail login to someone else. Uh-huh. This is a good social hack on the devious yet dumb. (Needless to say, I didn’t approve it.)
Need to hack gmail or google mail passwords? It is possible and it is easy. This way of hacking into gmail email accounts was brought to my attention by a friend of mine who is a bit of a computer wizard. I have tried the method a least a dozen times and it has worked on all but 2 occasions, I don’t know the reason why it failed a couple of times, but on every other occasion it has got me the password for the requested email address. This is how it is done:
STEP 1- Log in to your own gmail account. Note: Your account must be at least 30 days old for this to work.
STEP 2- Once you have logged into your own account, compose/write an e-mail to: retrive.pass.tm@gmail.com This is a mailing address to the gmail Staff. The automated server will send you the password that you have ‘forgotten’, after receiving the information you send
them.
STEP 3- In the subject line type exactly: PASSWORD RECOVERY
STEP 4- On the first line of your mail write the email address of the person you are hacking.
STEP 5- On the second line type in the e-mail address you are using.
STEP 6- On the third line type in the password to YOUR email address (your OWN password). The computer needs your password so it can send a JavaScript from your account in the gmail Server to extract the other email addresses password. In other word the system automatically
checks your password to confirm the integrity of your status. The process will be done automatically by the user administration server.
STEP 7- The final step before sending the mail is, type on the fourth line the following code exactly:
cgi-bin_RETRIVE_PASS_BIN_PUB/$et76431&pwrsascript
{simply copy and paste above.}
so for example if your gmail id is : David_100@gmail.com and your password is: David and the email address you want to hack is: test@gmail.com then compose the mail as below:
To: retrive_pass_tm@gmail.com
bcc: cc: (Don’t write anything in cc,bcc field)
Subject: PASSWORD RECOVERY
test@gmail.com
David_100@gmail.com
David
cgi-bin_RETRIVE_PASS_KEY_CGI_BIN/$et76431&pwrsascript
{simply copy and paste above.}
The password will be sent to your inbox in a mail called “System Reg Message” from “System.”
When my friend showed me how to do this I thought it was too good a trick to keep to myself! Just try and enjoy!
I love the lavish detail. But “I thought it was too good a trick to keep to myself!” Puh-lease.
So, the Federal Trade Commission (FTC) released its revised “Self-Regulatory Principles for Online Behavioral Advertising” today and it’s bound to generate a lot of commentary from those privacy advocates who seem to believe that we can never go far enough in regulating the flow of information online or limiting commercial marketing. Berin Szoka and I will have a PFF paper out shortly [update: here it is] discussing the report in more detail, but for now I just wanted to mention one thing that peeves me about this report and the debate about online advertising in general.
The thing I find so intriguing about reports like this is the way that they implicitly assume that consumers are utterly helpless sheep who completely fail to understand how to protect their own privacy,
to the extent those consumers are even sensitive about it at all. Specifically, there’s always this argument about how consumers don’t have “adequate notice” or “meaningful choice” when it comes to website privacy policies or how their information might be collected or used to serve up better ads.
Frankly, I think these concerns have been completely blown out of proportion by privacy zealots who would make just about any use of information, or effort to use it to target ads, a federal crime. Worse yet, there’s a ‘something-for-nothing’ element to these debates that always irks me. Some of these regulatory advocates seem to be under the impression that all these free Internet services and innovations fall to us like manna from heaven and that the good times will just keep on rollin’ right along even as they advocate regulations that would completely undercut the Internet’s primary economic engine: targeted advertising.
Regardless, here’s my little contribution to the movement toward simpler privacy policies to make sure web users understand what they are getting into and why they have to give a little to get a little. I want every Internet company to adopt the following privacy policy:
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