Topic: Regulatory Studies

Online Privacy and the Commerce Clause

I fear that with the PATRIOT Act on the brain, I’ve been remiss in continuing the colloquy on behavioral ads and privacy regulation that I’d been having with Jim Harper—who flattered me by responding in a long and thoughtful essay a couple weeks back. Because there’s so much interesting stuff there, I hope he won’t mind if I restrict myself to the first part of his reply here, in the interest of making this all a bit more digestible to those whose fascination with the topic may not be quite as consuming as ours. I’ll consider briefly the constitutional issue Jim raises, and turn to some of the specifics of the issue—and the relative merits of the common law alternative—in another post.

So like every good dorm room bull session, we begin in the weeds of  policy and quickly find ourselves breathing the rarefied air of constitutional theory. Supposing for the moment that we thought it were a good idea on policy grounds, would it be within the power of Congress to set ground rules for online advertisers who gather personal data from Web browsers? Recall that there are two particular rules that I’ve said I’d be tentatively open to, but which Jim rejects: a requirement of notice when information is being collected (say via a small link from the adspace to a privacy policy) and a rule establishing that privacy policies are enforceable, so that individual users can sue for damages if a company knowingly  violates its stated policy (thus far, courts have not generally found these to be binding). Does this fall within the power to “regulate commerce … among the several states”? I think so. I’ll start with what I hope will be some uncontroversial arguments and go from there.

So first, let’s grant that there’s one type of “original intent” that everyone ought to care about, whatever their more general interpretive stance: what Ronald Dworkin calls the linguistic intent of the Framers. That is, if words like “commerce” and “regulate” had narrower meanings in 1787 than they do today, we must, of course, read them now in that light: “Commerce” means actual interstate traffic in goods and services, rather than economic activity more generally, and “regulation” is centrally about establishing uniform rules and procedures.  With these appropriately narrowed readings in mind, I think it’s still a slam-dunk that online ads are covered.

There are, in fact, at least three different senses in which behavioral ads might be classed as interstate commerce. First, the purchase of the ad space itself is obviously a commercial transaction—frequently though not necessarily between entities in different states—and there’s a reasonable question of whether a host site with posted privacy policy is implicitly committed to applying that policy as a condition on ad space sold to third parties. The ads themselves will typically propose a commercial transaction, and in a more direct way than other ads are, can plausibly be seen as the first step in the transaction itself, as clicking on the ad will often bring you directly to a page where you can complete the purchase it recommends. Finally, the personal and behavioral user data collected is itself a valuable commodity, and many sites function with a pretty explicit informational quid pro quo: You will receive access to our content in exchange for registering and providing us with certain data. Since the Internet is borderless, most sites will be getting most of their traffic from people located in different states or countries, and even narrowly state-focused sites are likely to have substantial border-crossing traffic. So on a pretty straight reading of the constitutional language, I find very little reason to doubt that Congress may set uniform default rules for these interstate transactions, rather than leaving it to a patchwork of state rules.

Now, Jim’s reason for questioning this seems to be that the primary concern of the Framers was to prevent states from creating trade barriers. That may be, but if we skip ahead to Article 1, Section 10, we find that Congress knew perfectly well how to enact general and purely prohibitory bans on such shenanigans  using more apt “no state shall” language. Instead, they used precisely the same language for interstate commerce as they did for international commerce, where history suggests that the Framers (many of them steeped in the mercantilist economic theories of the day) had been above all concerned to preserve the ability to erect protectionist trade barriers. So we’re left with a choice between ascribing to the Framers a frankly stunning level of linguistic incompetence or supposing that the Constitution actually does grant the affirmative power that a facial reading suggests.

Needless to say, this does not require us to adopt the post–New Deal reading that places anything with the least potential influence on economic activity under Congressional purview. But we’re pretty close to the core here. Indeed, one of the early cases I know Jim considers a lodestone for the “no trade barriers” reading, Gibbons v. Ogden, involves a congressional grant of a license to operate steamboats. The court found that this superseded the monopoly New York had sought to grant another steamboat operator, which fits Jim’s point to an extent, but it’s crystal clear from that (1824) ruling that the power of Congress here is a broad authority to grant or withhold a privilege to operate interstate vessels, and establish conditions on such vessels, including restrictions on ownership and personnel. It seems to me you’d have to get awfully creative to read the clause in a way that authorizes that kind of authority over an “instrumentality” of commerce (water navigation) but forbids Congress from specifying the kind of notice a merchant must provide when initiating an actual interstate commercial transaction.

A slightly more controversial suggestion: When the specific substantive intent of the Framers is not explicitly embedded in the Constitution’s language—by which I mean, the specific use they thought a wise Congress would make of enumerated powers in light of contemporary economic theories, whether liberal or mercantilist—I am not inclined to give it very great weight. Or more bluntly, when the legal language is abstract, I don’t think we’re bound by an original conception of how or where it applied in specific cases—to the extent such a consideration is even intelligible when we’re talking about Internet advertising. Manifestly, very few people at the time of the passage of the Fourteenth Amendment believed that the abstract guarantee of “equal protection” entailed a substantive right of black children to attend public schools the states restricted to whites. But insofar as what they wrote into law was the abstract guarantee, I don’t think we’re required to care what they believed. Our modern reading should be constrained by the original sense of the words used, and to some extent by the original structural purpose served (translated as necessary). But in specific application—whether privacy rules for online ads are encompassed within “regulation” of “commerce”—then even if you pulled out the Ouija board and got a personal verdict from James Madison, it would just be one more opinion.

Finally, and maybe most controversially: What kind of recommendations should we make in a world where our preferred interpretation of the Constitution lost the fight a long time ago? If the question is what we should recommend to judges, presumably we want to recommend that they start shifting back in the direction of a reading we regard as better justified. But what about when, as Jim imagines, we’re advising legislators? Should we only recommend what we believe to be authorized by what we hold to be the best reading of the Constitution, or will it sometimes make sense to endorse legislation that is plainly allowed by the current regnant interpretation, but that might be outside the scope of the interpretation we regard as superior? I think it will, partly for theoretical, and partly for pragmatic reasons.

At a practical level, both legislators and citizens widely believe Congress to have broader policy discretion than most of the authors here. So very generally speaking, I don’t think it serves limited government to refrain from weighing in on the relative merits of policy options that wouldn’t be on the table at all if our arguments had fared better at the meta-level. (Recall the old joke about the principled pacifist answer to how to respond to World War II: Don’t sign the Treaty of Versailles!) Now, on this particular question it’s not a sure thing that Congress or the FTC will act, and maybe “hands off” is the best advice to give. But there are plenty of areas where there’s no realistic chance that Congress is going to abstain altogether, even if we think that’s what the best interpretation of the Constitution requires. In those cases, I think it’s at least sometimes appropriate to flag the meta objection and then say something about the policy merits. Obviously there are limits—I don’t expect I’ll ever express a view on the “best” way to run a torture chamber—but there are plenty of issues where it seems perverse for the people most concerned with limited government to sit out the day-to-day debates and focus on getting Wickard v. Filburn overturned, glad as I am that there are folks hammering that.

That dovetails with the theoretical reason, which has to do with the broader question of why constitutional principles are binding on us at all. I assume it is not because the Founders, brilliant though they were, enjoyed some divine right of command that the inheritors of their institutions are compelled to obey. Partly it’s that the principles embedded in the Constitution are good ones, but a substantial piece of the answer, I think, is that they provide a stable framework within which we conduct our political and private lives. Judges give weight to stare decisis even when they think the case at the fountainhead of a line of precedent was poorly decided, in part because the legitimacy and authority of law are to a great extent a function of its predictability, of the way it allows us to take actions and make agreements and know pretty much what the legal consequences will be, however much else may remain unpredictable. Constitutional restraints do this one level up, establishing (albeit roughly) a domain of legal variation over the longer term. This is  not, for what it’s worth, wacky postmodern Critical Legal Studies stuff; it’s an extrapolation from Hayek. To imagine that you can remake a society’s institutions wholesale—even if your guide is the best interpretation of a founding document, and even if you’re pretty sure that interpretation held sway a couple centuries ago—is the fallacy of constructivist rationalists.

Now, I think the right account of why we should regard the Constitution as binding starts with considerations along these lines, but this has the (perhaps unfortunate) consequence that even if you had a super-awesome unanswerable argument for why the Constitution mandates libertopia, at least when read properly absent the accretions of precedent, you still wouldn’t have an argument that judges, legislators, and government officials must all start acting on this understanding as of tomorrow. What you’d have is a good starting point for a much more gradual process of paring government back down. Not, to be clear, because I think the Constitution “means whatever the Supreme Court says it does”—that would be incoherent, since the court’s practice is unintelligible, and its legitimacy illusory, unless we assume there’s an independent meaning for them to strive toward.  But an “independent” meaning can be located in a community of interpretation and practice that extends beyond the framing generation. By analogy: If I want to use language “correctly” to communicate, I don’t get to just assign whatever meanings I like to words. It’s even possible to make a strong argument that the majority of speakers at a particular historical moment are using a word—like “decimate” or “hopefully” or “brutalize”—improperly. But neither does it mean that the first person to coin the term gets to specify its legitimate uses forever. And, in fact, anyone who insisted on using “decimate” to mean only “reduce by ten percent” would probably find his attempts at communication misfiring badly. To say that meaning is necessarily public and independent—consult Hayek’s cousin Wittgenstein here—does not require a baptismal view of meaning. Or at any rate, whether it does or not depends on the function your interpretive practice serves.

So yeah, that’s all pretty far removed from our original discussion—and I’m hoping far enough below the fold that it doesn’t put me on the wrong end of another dozen arguments with colleagues. I’ll do another post later this week where I actually get to the policy question, and some potent objections that both Jim and Tim Lee have raised.

What Is Regulation?

The New York Times tries to spin the work of Nobel laureates Elinor Ostrom and Oliver Williamson as not anti-regulation:

Neither Ms. Ostrom nor Mr. Williamson has argued against regulation. Quite the contrary, their work found that people in business adopt for themselves numerous forms of regulation and rules of behavior — called “governance” in economic jargon — doing so independently of government or without being told to do so by corporate bosses.

But none of us “anti-regulation” folks are against “rules of behavior that people in business adopt for themselves independently of government.” The world is full of rules, from wearing clothes in the office to customary trade practices to the rules for managing common-pool resources that Ostrom studied. Anyone who opposed such “forms of regulation” wouldn’t be a libertarian or even an anarchist – he’d be a nihilist. (Of course, one could sensibly oppose particular rules; but no one seriously wants a world without rules of behavior.)

David Henderson analyzes one of the misunderstandings about the laureates’ findings:

Some have summarized their work by saying that institutions other than free markets often work well. But that statement can mislead you to conclude that government solutions are the answer. Free markets are only a subset of free institutions. A better way to sum up their work is that what Ms. Ostrom and Mr. Willamson really show is that voluntary associations work.

The Concise Encyclopedia of Economics defines “regulation” this way: “Regulation consists of requirements the government imposes on private firms and individuals to achieve government’s purposes.” That’s the kind of regulation that is controversial among economists and often criticized by libertarians. It is entirely different from “rules of behavior that people in business adopt for themselves independently of government.” Those sorts of rules – often called “governance,” as the New York Times notes – are private and voluntary, made by the voluntary interactions of a few or many people.

The work of Ostrom and Williamson supports the idea of spontaneous order, an order that emerges as result of the voluntary activities of individuals and not through the commands of government. Spontaneous order can be hard to grasp, though it is the background of our entire world – language, common law, money, and the economy are all spontaneous orders (though government has intruded into some of those orders). It’s misleading to say that work of Ostrom and Williamson is somehow supportive of “regulation,” given the way that word is commonly used.

Sheldon Richman made a similar point back in June and wrote a Facebook note on the same paragraph that caught my eye.

Your Choices Are Unacceptable

Through my work on agriculture, I get occasional media calls on obesity and the agri-industrial complex supposedly behind it.  On Sunday, for example, I gave an interview on NPR about the USDA’s push for – and subsidisation of – farmers markets and “eating locally” as the solution to poor nutrition. (This a recurrent theme of the Obama administration: Michelle Obama has made people’s food habits her business, growing a White House Garden and driving in a convoy of 36 vehicles to the H Street farmers’ market in a photo-op to promote it. The USDA even has a “People’s Garden”.)

So an article in today’s New York Times caught my eye. According to a recent study, the push for calorie postings in restaurants has had no affect on people’s eating habits in certain low-income areas of New York City.  People’s choices are, apparently, pretty impermeable to the information that nutrition and public health advocates assured us was the key to better choices.

You would be forgiven for thinking that was the end of the matter and we could go on eating what we like unharassed. Think again:

“I think it does show us that labels are not enough,” Brian Elbel, an assistant professor at the New York University School of Medicine and the lead author of the study, said in an interview.

I hope I’m not coming across as hyperbolic, but I find it difficult to believe that healthy eating advocates will be content to accept that people are making choices, unpalatable though they may be to the ”slow food” movement, based on the benefits and costs of the alternatives available to them. If people won’t voluntarily submit to the food police – even when information is available – then I suspect calls for regulation will soon follow.

(HT: Radley Balko)

Nanny State Doesn’t Like Competition - the English Version

A previous post by David Boaz poked fun at bureaucrats in Michigan for threatening a woman for the ostensible crime of keeping an eye on her neighbors’ kids without a government permit. English bureaucrats are equally clueless, badgering two women who take turns caring for each other’s kids. The common theme, of course, is that bureaucrats lack common sense – but the real lesson is that this is the inevitable consequence of government intervention (especially when politicians say they are “doing it for the children). The BBC reports:

England’s Children’s Minister wants a review of the case of two police officers told they were breaking the law, caring for each other’s children.

Ofsted said the arrangement contravened the Childcare Act because it lasted for longer than two hours a day, and constituted receiving “a reward”.

It said the women would have to be registered as childminders.

…Ms Shepherd, who serves with Thames Valley Police, recalled: “A lady came to the front door and she identified herself as being from Ofsted. She said a complaint had been made that I was illegally childminding.

“I was just shocked - I thought they were a bit confused about the arrangement between us. So I invited her in and told her situation - the arrangement between Lucy and I - and I was shocked when she told me I was breaking the law.”

…Minister for Children, Schools and Families Vernon Coaker insisted the Childcare Act 2006 was in place “to ensure the safety and wellbeing of all children”.

Online Privacy and Regulation by Default

My colleague Jim Harper and I have been having a friendly internal argument about Internet privacy regulation that strikes me as having potential implications for other contexts, so I thought I might as well pick it up here in case it’s of interest to anyone else. Unsurprisingly, neither of us are particularly sanguine about elaborate regulatory schemes—and I’m sympathetic to the general tenor of his recent post on the topic. But unlike Jim, as I recently wrote here, I can think of two rules that might be appropriate: A notice requirement that says third-party trackers must provide a link to an ordinary-language explanation of what information is being collected, and for what purpose, combined with a clear rule making those stated privacy policies enforceable in court. Jim regards this as paternalistic meddling with online markets; I regard it as establishing the conditions for the smooth functioning of a market. What do those differences come down to?

First, a question of expectations. Jim thinks it’s unreasonable for people to expect any privacy in information they “release” publicly—and when he’s talking about messages posted to public fora or Facebook pages, that’s certainly right. But it’s not always right, and as we navigate the Internet our computers can be coaxed into “releasing” information in ways that are far from transparent to the ordinary user. Consider this analogy. You go to the mall to buy some jeans; you’re out in public and clearly in plain view of many other people—most of whom, in this day and age, are probably carrying cameras built into their cell phones. You can hardly complain about being observed, and possibly caught on camera, as you make your way to the store. But what about when you make your way to the changing room at The Gap to try on those jeans? If the management has placed an unobtrusive camera behind a mirror to catch shoplifters, can the law require that the store post a sign informing you that you’re being taped in a location and context where—even though it’s someone else’s property—most people would expect privacy? Current U.S. law does, and really it’s just one special case of the law laying down default rules to stabilize expectations.  I think Jim sees the reasonable expectation in the online context as “everything is potentially monitored and archived all the time, unless you’ve explicitly been warned otherwise.” Empirically, this is not what most people expect—though they might begin to as a result of a notice requirement.

Now, as Jim well knows, there are many cases in which the law sets defaults to stabilize expectations. Under the common law doctrine of implied warranty, when you go out and buy a toaster, you do not explicitly write out a contract in which it’s stipulated that the thing will turn on when you get home and plug it in, that it will toast bread without bursting into flames, and so on. Markets would not function terribly well if you did have to do this constantly. Rather, it’s understood that there are some minimal expectations built into the transaction—toasters toast bread!—unless the seller provides explicit notice that this is an “as is” sale. This brings us to a second point of divergence: Like Jim, I think the evolutionary mechanism of the common law is generally the best way to establish these market-structuring defaults. Unlike Jim, I think sometimes it’s appropriate to resort to statute instead. This story from Techdirt should suggest why:

It’s still not entirely clear what online agreements are actually enforceable and which aren’t. We’ve seen cases go both ways, with a recent ruling even noting that terms that are a hyperlink away, rather than on the agreement page itself, may be enforceable. But the latest case, involving online retailer Overstock went in the other direction. A court found that Overstock’s arbitration requirement was unenforceable, because, as “browserwrap,” the user was not adequately notified. Eventually, it seems that someone’s going to have to make it clear what sorts of online terms are actually enforceable (if any). Until then, we’re going to see a lot more lawsuits like this one.

Evolutionary mechanisms are great, but they’re also slow, incremental, and in the case of the common law typically parasitic on the parallel evolution of broader social norms and expectations. That makes it an uneasy fit with novel and rapidly changing technological platforms for interaction. The tradeoff is that, while it’s slow, the discovery process tends to settle on efficient rules. But sometimes having a clear rule is actually more important—maybe significantly more important—than getting the rule just right. These features seem to me to weigh in favor of allowing Congress, not to say what standards of privacy must look like, but to step in and lay down public default rules that provide a stable basis for informed consumers and sellers to reach their own mutually beneficial agreements.

Finally, there’s the question of whether it’s constitutionally appropriate for federal legislators, rather than courts, to make that kind of decision. I scruple to say how “the Founders intended” the Constitution to apply to e-commerce, but even on a very narrow reading of the Commerce Clause, this seems to fall safely within the purview of a power to “make regular” commerce between the several states by establishing uniform rules for transactions across a network that pays no heed to state boundaries. A patchwork of divergent standards imposed by judges and state legislators does not strike me as an especially market-friendly response to people’s online privacy concerns, but that appears to be the alternative. If there’s a way to address those concerns that’s both constitutionally appropriate and works by enabling informed choice and contract rather than nannying consumers or micromanaging business practices, then it seems to me that it makes sense for supporters of limited government to point that solution out.

Reform Needed, but Obama Plan Would Result in More Financial Crises, not Less

Today President Obama took his financial reform plan to the airwaves.  While there is no doubt our financial system is in need of financial reform, the President’s plan would make bailouts a permanent feature of the regulatory landscape.  Rather than ending “too big to fail” – the President wants us to believe that with additional discretion and power, the same Federal Reserve that missed the boat last time will save us next time.

The truth is that the President’s plan will result in a small number of companies being viewed by debtholders as “too big to fail”.  These companies would see their funding costs decline, allowing them to gain market-share at the expense of their rivals, making these firms even larger.  Greater concentration in our financial services industry is the last thing we need, yet the Obama plan all but guarantees it.

Obama also chooses myth’s over facts.  The President claims that de-regulation and competition among regulators caused the crisis.  The facts could not be more different.  Those institutions at the center of the crisis – Fannie Mae, Freddie Mac, Bear Stearns, Lehman –could not choose their regulator.

The President’s plan chooses convenient targets and protects entrenched interests, rather than address the true underlying causes of the crisis.  At no time have we heard the President discuss the expansionary monetary policies that helped fuel the bubble.  Nor has the President talked about the global imbalances – the global savings glut that poured surplus savings from the rest of the world into the US.  But then the President appears to hope that loose monetary policy and continued American consumption funded by China will get him out of his own political problems with the economy.  It is especially striking that the President makes little mention of the housing bubble, as if it was only the bust that was the problem.

The President continues to say he inherited this crisis.  While true, he did not inherit the same individuals – Tim Geithner and Ben Bernanke – who were at the center of creating the crisis.  All Obama needs to do is find a position for Hank Paulson and he will have completely re-assembled the Bush financial team.

Without real reform – fixing Fannie and Freddie, scaling back the massive subsidies for leverage in our tax code, loose monetary policy – it will only be a matter of time before the next crisis hits.  If we implement the President’s plan, we will, however, guarantee that the next crisis will be even larger and severe than the current one.