Topic: Telecom, Internet & Information Policy

Public Oversight of Congress, One Click at a Time

In mid-August, using Cato Deepbills data, the Legal Information Institute at Cornell University started alerting visitors to its U.S. Code pages that the laws these visitors care about may be amended by Congress.

The most visited bills are an interesting smattering of issues.

Getting top clicks is H.R. 570, the American Heroes COLA Act. Would it surprise you to learn that beneficiaries of Social Security’s Old Age, Survivors and Disability Insurance program are looking to see if veterans’ disability compensation will get the same cost-of-living increases? The relevant section of the Social Security Act on the Cornell site points to the bill that would grow veterans’ benefits in tandem with Social Security recipients’.

S. 1859, the Tax Extenders Act of 2013, is the second bill with the most referrals from Cornell. People looking into federal regulation of health insurance—or myriad other statutes—are finding their way to this complex piece of legislation. We know visitors to the Cornell site are legally sophisticated. They just might be able to follow what S. 1859 does.

Immigration is a hot-button issue, and Deepbills links at Cornell such as the code section dealing with reimbursement for detaining aliens are sending people to S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act.

Another hot-button issue and top source of clicks from Cornell’s site: federal gun control. People looking at gun control law are following links to Senator Dianne Feinstein’s (D-CA) bill to ban assault weapons.

As of Thursday morning, 674 people had clicked 855 times on links to the bills in Congress that affect the laws they’re interested in. Those numbers aren’t going to instantaneously revive public oversight of the government. But usage of these links is rising, and Tom Bruce at Cornell says he plans changes that may increase clicks by 3 to 5 times. He guesses that people see Cato’s sponsorship of the data they can access 20,000 times a day. (“I should have asked you for a penny per impression ;),” he says. Funny guy.)

A lot more people are aware of work Cato is doing to increase government transparency, but, more importantly, a small but growing cadre of people are being made aware of what Congress is doing. This positions them to do something about it. Public oversight of Congress is increasing one click at a time.

Old Technopanic in New iBottles

Gather around young’uns: Back in the antediluvean early 90s, when the digital world was young, a motley group of technologists and privacy advocates fought what are now, somewhat melodramatically, known as the Crypto Wars. There were many distinct battlefields, but the overarching question over which the Crypto Wars were fought was this: Would ordinary citizens be free to protect their communications and private files using strong, truly secure cryptography, or would governments seek to force programmers and computer makers to build in backdoors that would enable any scheme of encryption to be broken by the authorities?  Happily for both global privacy and the burgeoning digital economy—which depends critically on strong encryption—the American government, at least, ultimately saw the folly of seeking to control this new technology. Today, you are free to lock up your e-mails, chats, or hard drives without providing the government with a spare key.  (The conflict was featured on the front page of Wired Magazine’s second issue, and later detailed in Steven Levy’s lively book Crypto.)

Fast forward to 2014: Apple has announced that the new version of its mobile operating system, iOS, features full disk encryption to protect users’ data, and in contrast to earlier versions of iOS, Apple will not leave itself a backdoor that previously allowed the company to access at least some of the phone owner’s encrypted information.  The announcement has been greeted with alarm by cyberlaw professor Orin Kerr, in a series of  Washington Post blog entries that seem designed to prove Santayana’s hoary dictum about the perils of ignoring history. Apple, Kerr avers, is playing a “dangerous game” by implementing “a policy that only thwarts lawful search warrants.”  Police investigations, he fears, will now be stymied by criminals who refuse to unlock their phones, rendering search warrants to access those devices little more than “a nice piece of paper with a judge’s signature.”

Normally, Kerr’s writing on electronic privacy is marked by an understanding of modern telecommunications technology nearly as impressive as his legal erudition, but in this case, I fear, he has succumbed to an uncharacteristic fit of technopanic.  While he writes as though the corporate anarchists at Apple are brazenly thumbing their noses at police with a radical new policy, the truth is more nearly the opposite: It is Apple’s backdoor access that was the abberation, even for Apple.  If you encrypt your MacBook’s hard drive with Apple’s FileVault, or your Windows computer with Microsoft’s BitLocker, then unless the user chooses to send either company a backup copy of her encryption key, they can no more  unlock those encrypted files than a bookbinder can decipher the private code you employ in your personal diary.  Strong encryption is not even new to smartphones: Google’s Android operating system—the world’s most popular mobile platform, running on twice as many devices as iOS—has featured full-device encryption since 2011, and Google has never had backdoor access to those encrypted files.  And, of course, there have always been a wide array of third-party apps and services offering users the ability to encrypt their sensitive files and messages, with the promise that nobody else would hold the keys.  Does encryption occasionally stymie legitimate law enforcement investigations?  Of course—though way, way less often than you might think. The point to remember here, though, is that criminals have had access to backdoor-free encryption for many, many years before Apple announced its new policy without ushering in a terrifying new age of unstoppable criminals and impotent police.

Still, Kerr is right that encryption will now be far easier and more prevalent: Unbreakable encryption is not novel, but the decision to make iOS and Android devices encrypted by default is.  Previously, at least, criminals had to be savvy enough to make the choice to use encryption consistently—and many weren’t.  Encryption by default, because it protects average crooks as well as sophisticated cybercriminals, is likely to be a practical impediment in many more investigations. Criminals can still be punished for refusing a court order to unlock their devices, but may escape more serious charges that would be provable only with that encrypted evidence.  Does this strengthen the case, as Kerr suggests, for legislation requiring device manufacturers to build in backdoors or retain sensitive data?  It does not, for several reasons.

First, as Kerr belatedly acknowledges in a follow-up post, there are excellent security reasons not to mandate backdoors. Indeed, had he looked to the original Crypto Wars of the 90s, he would have seen that this was one of the primary reasons similar schemes were almost uniformly rejected by technologists and security experts.  More or less by definition, a backdoor for law enforcement is a deliberately introduced security vulnerability, a form of architected breach: It requires a system to be designed to permit access to a user’s data against the user’s wishes, and such a system is necessarily less secure than one designed without such a feature.  As computer scientist Matthew Green explains in a recent Slate column (and, with several eminent colleagues, in a longer 2013 paper) it is damn near impossible to create a security vulnerability that can only be exploited by “the good guys.” Activist Eva Galperin puts the point pithily: “Once you build a back door, you rarely get to decide who walks through it.” Even if your noble intention is only to make criminals more vulnerable to police, the unavoidable cost of doing so in practice is making the overwhelming majority of law-abiding users more vulnerable to criminals.

Second, and at the risk of belaboring the obvious, there are lots of governments out there that no freedom-loving person would classify as “the good guys.” Let’s pretend—for the sake of argument, and despite everything the experts tell us—that somehow it were possible to design a backdoor that would open for Apple or Google without being exploitable by hackers and criminals. Even then, it would be awfully myopic to forget that our own government is not the only one that would predictably come to these companies with legal demands. Yahoo, for instance, was roundly denounced by American legislators for coughing up data the Chinese government used to convict poet and dissident Shi Tao, released just last year after nearly a decade in prison.  Authoritarian governments, of course, will do their best to prevent truly secure digital technolgies from entering their countries, but they’ll be hard pressed to do so when secure devices are being mass-produced for western markets.  An iPhone that Apple can’t unlock when American cops come knocking for good reasons is also an iPhone they can’t unlock when the Chinese govermment comes knocking for bad ones. A backdoor mandate, by contrast, makes life easy for oppressive regimes by guaranteeing that consumer devices are exploitable by default—presenting U.S. companies with a presence in those countries with a horrific choice between enabling repression and endangering their foreign employees.

Uber Signups Soar Following German Ban

Uber has experienced an explosion in signups in Germany after a Frankfurt court handed down a temporary injunction banning the transport technology company. The countrywide ban follows a suit brought against Uber by Taxi Deutschland, an association of taxi dispatchers. Taxi Deutschland claimed that Uber did not have the necessary permits to operate. Under German law, drivers without a commercial licenses can pick up passengers as long as they do not charge more than the operating costs for the ride.

The Telegraph notes that Uber says it will continue to operate in Germany despite Taxi Deutschland claiming it will seek a fine of as much as €250,000 every time Uber provides a service without a license.

Since the injunction was issued, Uber claims that it has experienced a larger than 500 percent increase in signups compared to the same period last week in some parts of Germany. As City A.M.’s Guy Bentley notes, the Uber app has been downloaded in parts of Germany where Uber drivers do not operate:

The taxi app company doubled signups in all five German cities where it operates, with demand in both Hamburg and Düsseldorf rising over 500 per cent. Even people who don’t live in cities where Uber operates are downloading the app, perhaps in an act of capitalist solidarity. Uber now ranks in the top ten most downloaded apps in Germany.

According to Uber, the increased signups on September 2 in the five German cities where it operates compared to the same period last week are as follows:

- Uber Hamburg up 590 percent

- Uber Dusseldorf up 518 percent

- Uber Munich up 329 percent

- Uber Berlin up 270 percent

- Uber Frankfurt up 228 percent

I noted in July that, according to Uber’s U.K. general manager, Uber enjoyed an 850 percent increase in British signups in one day following a London black cab protest against how Uber was being treated by London’s transportation agency.

Taxi companies are understandably frustrated by the rise of Uber and will continue to seek legal means to stifle the company’s growth. However, events in Germany and the U.K. have shown that attacks on Uber can provide the company with welcome exposure and new customers.

 

Net Neutrality — or Destroying Internet Innovation and Investment?

The Sunlight Foundation reports that the Federal Communications Commission has received more than 800,000 public comments on the topic of “net neutrality,” more than 60 percent of them form letters written by organized campaigns and more than 200 from law firms on behalf of themselves or their clients. That’s an impressive outpouring of public comments. 

But Berin Szoka, a long-ago Cato intern who now runs TechFreedom, argues, “This debate is no longer about net neutrality. A radical fringe has hijacked the conversation in an attempt to undo two decades of bipartisan consensus against heavy-handed government control of the Internet.” TechFreedom has just launched DontBreakThe.Net, a web-based campaign to expose the danger facing the internet from well-meaning demands for something called “net neutrality.” In an open letter to FCC chairman Tom Wheeler, Szoka says:

Subjecting broadband to Title II of the 1996 Telecom Act would trigger endless litigation, cripple investment, slow broadband deployment and upgrades, and thus harm underserved communities. Al Gore may not have exactly ‘invented the Internet,’ but President Clinton’s FCC chairman Bill Kennard deserves much credit for choosing not to embroil the Internet in what he called the ‘morass’ of Title II. Kennard’s approach of ‘vigilant restraint’ unleashed over $1 trillion in private investment, which built the broadband networks everyone takes for granted today. Abandoning that approach would truly break the Internet.

Net Neutrality supporters such as Google, Facebook, and the NAACP haven’t jumped on the Title II bandwagon because they understand that Title II would threaten the entire Internet. Title II proponents claim the FCC can simply ‘reclassify’ broadband, but in truth, there’s no such thing as reclassification, only re-interpretation of the key definitions of the 1996 Telecom Act. If the FCC re-opens that Pandora’s Box, the bright line Chairman Kennard drew between Title II and the Internet will disappear forever. Startups and edge/content providers will inevitably be caught in the fray. And besides, the FCC has a long history of overstepping its bounds.

Invoking Title II would trigger years of litigation. It’s not clear the FCC could ultimately ‘reclassify’ broadband at all, and even less clear the FCC could, or actually would, follow through on talk of paring back Title II’s most burdensome rules, like retail price controls. Even if ‘reclassification’ stood up in court, the FCC still couldn’t do what net neutrality hardliners want: banning prioritization. The FCC would succeed only in creating a dark cloud of legal uncertainty. That would slow broadband upgrades and discourage new entrants, such as Google Fiber, from entering the market at all.

The best policy would be to maintain the ‘Hands off the Net’ approach that has otherwise prevailed for 20 years. Innovation could thrive, and regulators could still keep a watchful eye, intervening only where there is clear evidence of actual harm, not just abstract fears. As former FCC Chairman Bill Kennard put it, ‘I don’t want to dump the whole morass of Title II regulation on the cable pipe.’ If we want to maintain a free and open Internet, and encourage broadband competition, the FCC would do well to heed his advice.

TechFreedom created this catchy graphic for its campaign to encourage more people to understand what’s at stake in the so-called “net neutrality” fight.

Don't Break the Net 

Gov. Quinn Vetoes Rideshare Bill

Earlier this week, Illinois Gov. Pat Quinn (D) vetoed HB 4075, a ridesharing bill backed by Illinois’ taxi industry that was overwhelmingly passed by the state House and Senate earlier this year. If the bill had been signed into law, Illinois drivers using ridesharing services for more than 18 hours a week would have had to adhere to burdensome regulations such as a requirement for a chauffeur’s license. The bill would also have created a new legal category (“commercial ridesharing agreements”) and required rideshare companies to provide its drivers with the commercial liability insurance used for taxis. Quinn should be praised for vetoing the bill. However, given the bill’s popularity among state legislators, there is a chance of an override of the veto.

The Illinois House passed HB 4075 in April by 80 votes to 26. In May, the Illinois Senate passed the bill by 46 to 8. In order to override a veto, 36 votes are needed in the Senate and 71 are needed in the House.

A few weeks after the Illinois Senate passed HB 4075, the Chicago City Council approved a rideshare ordinance, which goes into effect next week. The ordinance is far from perfect. For instance, it requires that all drivers using a rideshare company’s technology to have a chauffeur’s license if the driver workforce of that company averages more than 20 hours per week per driver. The ordinance also requires that rideshare companies whose drivers operate fewer than 20 hours per week on average have their vehicle inspections and background checks approved by the city. However, the ordinance is less restrictive than HB 4075 and its trailer bill HB 5331, which Quinn also vetoed. 

In his veto letter, Quinn rightly points out that it would be “premature—and perhaps counterproductive” to impose a statewide ridesharing regulatory structure on Illinois when the Chicago ordinance has yet to come into effect and that there is not enough evidence to judge the effectiveness of ridesharing ordinances.

However, it should be remembered that the ordinance in Chicago increases the number of regulations. While free marketers may be tempted to welcome legislation that allows ridesharing companies to operate, it is worth keeping in mind that as local lawmakers across the country try to regulate rideshare companies, there is a risk of regulatory capture and, as the Competitive Enterprise Institute’s Marc Scribner has warned, a risk of ridesharing companies eventually using legislation to their advantage to stifle competition as technology continues to advance.  

 

Transparency Is Breaking Out All Over!

On Monday, Cato is hosting a briefing on Capitol Hill about congressional Wikipedia editing. Over a recent 90-day period, there were over 400,000 hits on Wikipedia articles about bills pending in Congress. If congressional staff were to contribute more to those articles, the amount of information available to interested members of the public would soar. Data that we produce at Cato go into the “infoboxes” on dozens and dozens of Wikipedia articles about bills in Congress.

A popular Twitter ‘bot called @congressedits recently created a spike in interest about congressional Wikipedia editing. It puts a slight negative spin on the practice because it tracks anonymous edits coming from Hill IP addresses, which are more likely to be inappropriate. But Congress can do a lot of good in this area, so Cato intern Zach Williams built a Twitter ‘bot that shows all edits to articles about pending federal legislation. This should draw attention to the beneficial practice of informing the public before bills become law. Meet @Wikibills!

Also, as of this week, Cato data are helping to inform some 26 million visitors per year to Cornell Law’s Legal Information Institute about what Congress is doing. Thanks to Tom Bruce and Sara Frug for adding some great content to the LII site.

Let’s say you’re interested in 18 U.S. Code § 2516, the part of the U.S. code that authorizes interception of wire, oral, or electronic communications. Searching for it online, you’ll probably reach the Cornell page for that section of the code. In the right column, a box displays “Related bills now in Congress,” linking to relevant bills in Congress.

Those hyperlinks are democratic links, letting people know what Congress is doing, so people can look into it and have their say. Does liberty automatically break out thanks to those developments? No. But public demands of all types—including for liberty and limited government—are frustrated now by the utter obscurity in which Congress acts. We’re lifting the curtain, providing the data that translates into a better informed public, a public better equipped to get what it wants.

The path to liberty goes through transparency, and transparency is breaking out all over!

How the Sharing Economy Can Help Developing Nations

While many sellers and buyers in the so-called sharing economy might like it for its convenience, there is a case to be made that in the developing world decentralized and peer-to-peer economies could help solve a crippling informational problem in environments with weak property rights and bad regulatory regimes.

Writing in Forbes earlier this week, Adam Ozimek, Director of Research and Senior Economist at Econsult Solutions, Inc., pointed out that the rating systems used by companies such as Uber and Airbnb allow for customers to “do what we previously thought tight regulations and even natural monopolies were needed to do.” Before the rise of the technologies that allowed for Uber and Lyft to exist, the taxi industry could argue that customers might face rip-offs or safety concerns in the absence of regulation. Thanks to the rating system used by companies in the sharing economy, this informational problem can be overcome.

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