Topic: Telecom, Internet & Information Policy

Taming the Cyberlibertarians

New York Attorney General Eric Schneiderman made some interesting rhetorical choices in a New York Times op-ed yesterday taking after share economy leaders AirBnB and Uber. The challenge they present to outdated regulation leads him to call these businesses “cyberlibertarians” and “cybercowboys.” The latter awkward metaphor inhabits the title of the piece: “Taming the Digital Wild West.”

It’s an awkward metaphor because “Wild West” was an epithet leveled at the Internet itself in its early days. Thank heavens the forces of stasis didn’t prevent us from inhabiting this place—and here’s hoping they won’t prevent us from finding new terrain. How safe and impoverished we would be, both materially and spiritually, if we didn’t have the rollicking, wide-open Internet.

But the most interesting rhetorical choice is his effort to push community-enhancing job-creation into the “libertarian” corner of Times’ readers’ vistas. His hope, it appears, is that readers’ revulsion around the word “libertarian” (if not liberty itself) will overcome what they know about car- and room-sharing. People all over New York and the world are operating small businesses, and these small businesses bring them in close personal contact with others. They build wealth, and they build community.

Calling that “cyberlibertarian” may just cause some reflexive progressives and conservatives to take a fresh look at liberty. While we’re working toward miracles, maybe people will drop the “cyber” prefix, too!

(Disclosure: I’ve used both AirBnB and Uber with generally wonderful results.)

TV Broadcasters Should Have Same Rights As Everyone Else

Remember broadcast television? Amid the avalanche of new streaming services, DVRs, and Rokus, not to mention cable TV, some people may have forgotten—or, if they’re under 25, never known—that there are TV shows in the air that can be captured with an antenna. The Supreme Court certainly hasn’t forgotten, given that it maintains an outdated rule that broadcast TV gets less First Amendment protection than cable, video-on-demand, or almost anything else–a rule dating to the 1969 case of Red Lion Broadcasting Co. v. FCC.

That lower standard of protection comes from the belief that the broadcast-frequency spectrum is scarce, and thus that the Federal Communications Commission is properly charged with licensing the spectrum for the public “interest, convenience, and necessity.” But if newspapers or magazines were similarly licensed, the First Amendment violation would be obvious to all but the most hardened censor.

Hence the case of Minority Television Project v. FCC. Minority Television Project is an independent, noncommercial license-holding TV station in San Francisco. Unlike most noncommercial license holders, Minority TV receives no PBS money. Because it’s an over-the-air broadcaster, however, it must comply with the restrictions placed on the licenses by Congress and the FCC, including prohibitions on paid commercials and political ads. Minority TV challenged these restrictions as violating the First Amendment.

Applying Red Lion’s lower First Amendment standard, the district court, a panel of the U.S. Court of Appeals for the Ninth Circuit, and even the en banc Ninth Circuit (11 judges rather than the usual 3) all ruled against Minority TV. On petition for certiorari to the Supreme Court, Minority TV argues that Red Lion’s rationale for reducing broadcasters’ rights is outdated and should be overruled.

Cato has filed an amicus brief in support of Minority TV, agreeing that it’s time to give broadcast TV full First Amendment protection. Just as we argued in 2011’s FCC v. Fox Television Stations—where the Court chose to evade the question—it’s time to update our law to fit current realities. The way that people consume information and entertainment has changed dramatically since 1969. Rather than three broadcast networks, we have hundreds of channels of various kinds, and increasingly people are forgoing traditional TV altogether. The FCC can still license broadcasters—that system isn’t going away anytime soon regardless of the next mind-boggling innovation—but the conditions it places on those licenses have to satisfy strict First Amendment scrutiny, especially when they pertain to political speech.

The Supreme Court should take this case in order to update its treatment of broadcasters’ speech rights, including a requirement that the government offer a truly compelling justification any time it wants to restrict them. 

Copyright on the (Cato) Docket May 7th

This week, the U.S. Patent and Trademark Office and the National Telecommunications and Information Administration announced four upcoming hearings on issues raised in the Department of Commerce Internet Policy Task Force’s July 2013 paper, “Copyright Policy, Creativity, and Innovation in the Digital Economy.” The hearings will be held in or near Nashville, Boston, Los Angeles, and San Francisco in May, June, and July.

Cato will host its own hearing early next month on Tom W. Bell’s new book Intellectual Privilege. That event will occur May 7th at the Cato Institute in Washington, D.C.

In the book, Bell treats copyright as a statutory privilege that threatens not just constitutional rights, but natural rights, too. He argues for a new libertarian view of copyright that reconciles the desire to create incentives for creators with our inalienable liberties. Bell’s vision is of a world less encumbered by legal restrictions and yet richer in art, music, and other expressive works.

Register now for what is sure to be a lively discussion of this perennially interesting issue on May 7th!

The Zombie National ID

Like some sort of zombie from a 1950s B-movie, the REAL ID Act shambles forward, awaiting the day when some national emergency can bring it back to life.

In the District of Columbia, the city government has announced that they will begin to issue REAL ID compliant driver’s licenses from May 1, 2014 onwards. The city’s “REAL ID Credential” page sings every note in the pro-national-ID song book. It says that REAL ID is “not a national identification card,” a claim debunked on this blog long ago. It also says that REAL ID will help “inhibit terrorists’ ability to evade detection by using fraudulent identification.” That’s true, as far as it goes. But inconveniencing wrongdoers this way provides a tiny sliver of security compared to the costs in dollars and privacy, not to mention the inconvenience about to be visited on D.C. residents.

The D.C. government says that the change is being made “to ensure our residents will have access to federal facilities and the ability to board airplanes.” Never mind that the federal government has caved over and over again after threatening to disrupt air travel. D.C. plans to put all 540,000 or so licensed drivers into the national ID system over the next few years, including many federal policymakers.

In Louisiana, meanwhile, state legislators have advanced a bill to repeal the state’s 2008 ban on participation in the REAL ID program. The bill’s proponents also say that they must put Louisianans into the national ID system or they won’t be able to fly. Again, the federal government will never cut off Americans’ right to travel because they live in states that don’t comply with REAL ID. It’s been threatened over and over again, and the federal government always backs down.

But there may yet be a stake that goes through the heart of the national ID program. A bill to repeal REAL ID has been introduced in both the House and Senate. H.R. 4073, introduced by Rep. Steve Daines (R) of Montana, and S.2121, introduced by Daines’ rival in the current Montana Senate race, Sen. John Walsh (D), both would repeal the REAL ID Act.

It is refreshing to see some pushback against REAL ID during the current Congress. But is it enough to kill the zombie national ID?

 

The Fourth Amendment: Cars, Phones, and Keys?

Here’s a law-school hypothetical for you: Suppose a gang-banger is pulled over for having expired tags on his car. He has no driver’s license, and records show that he has repeatedly driven without a license. The protocol in such situations is to impound the car to prevent him from driving unlicensed again, and the impoundment search reveals that he has guns hidden in the car. He is arrested, patted down, and his possessions seized to secure officer safety during his transportation and booking.

Now suppose that police officers take the gang-banger’s car out of the impound yard and drive it around looking for his confederates and for more evidence against him. Can they use the car for this purpose?

If you’re like most people, you probably think the answer is: “No.” But can you say why?

Theory: The Supreme Court Could Apply the Terms of the Fourth Amendment in Fourth Amendment Cases

The Supreme Court could apply the terms of the Fourth Amendment in Fourth Amendment cases.

I know. Weird idea, right?

But it’s an idea I’ve pushed in briefs to the Court over the last few years: in U.S. v. Jones (2011), Jardines v. Florida (2012), In re Electronic Privacy Information Center (2013), and most recently in Riley v. California (2014). We’ll file in U.S. v. Wurie next week.

The idea is interesting enough that Mason Clutter of the National Association of Criminal Defense Lawyers has paid me the compliment of discussing it in her new law review article, “Dogs, Drones, and Defendants: The Fourth Amendment in the Digital Age.”

Jim Harper, director of information policy studies at the Cato Institute and one of the authors of Cato’s amicus brief in Jardines, regularly makes the argument that “[a] ‘search’ occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in ‘plain view.’ People maintain ‘privacy’ by keeping things out of others’ view, exercising control over personal information using physics and law.” The “Harper Theory” of search and seizure encourages judges, lawyers, and law enforcement officers to revert to the “plain meaning[]” of the Fourth Amendment’s use of “search” and “seizure.”

That’s right. The idea of using the words of the Fourth Amendment rather than stacks of confusing doctrine now has a name, and it’s the “Harper theory.” I guess I thought of it, so it’s named after me!

In seriousness, it is a challenge to recognize seizures and searches as such in “high-tech” contexts. Today’s problems with the Fourth Amendment—and the problem of doctrine obfuscating the text—began in 1929, when the Olmstead Court failed to recognize parallels between that era’s high-tech—telephonic communications—and written material sent through the mail.

But it is possible to recognize electronic and digital documents and communications as papers and effects. It is possible to recognize seizures when invasions of property rights occur in whatever form. And it is possible to recognize searches as efforts to discover information that is otherwise concealed from view. All this makes it possible to apply the words of the Fourth Amendment in Fourth Amendment cases.

I’m complimented if that’s called the “Harper theory.” I feel like I got it from Cardozo.

Under the Hood of the House Intel Committee’s NSA Reform Bill

This post was originally published on March 31, 2014 on Just Security

While details on the president’s proposal to end NSA bulk collection of telephony records remain sparse, we do now have an actual piece of legislation to look at from the House Permanent Select Committee on Intelligence—one that tracks the broad outlines of the White House plan even as it differs in several critical details. I’ve already done a quick take in broad brushstrokes over at The Daily Beast; here I want to get into the weeds a bit.

The HPSCI bill actually covers quite a bit more than just NSA bulk collection—there are a few transparency measures and a provision for the FISA Court to appoint amici curiae, which mostly seems like an attempt to preempt legislation creating a more robust FISC “advocate”—but in this post I want to focus on the meat: The prohibition (or so it seems) on bulk collection, and the new authority in §503 designed to replace the current bulk telephony program.

(A) The Bulk Prohibition

The first thing to note is that the (apparent) prohibition on bulk collection is structured somewhat oddly, even taking into account the framers apparent desire to limit that prohibition to certain subcategories of records. The USA Freedom Act, for instance, does this by means of a fairly straightforward modification: It limits the scope of §215 (as well as FISA pen/trap orders and National Security letters) to records that are both relevant to an investigation and pertain to a suspected foreign agent or their direct contacts, using language the Senate had unanimously approved back in 2005. The HPSCI bill is rather bit more convoluted.

First, Section 2 of the bill completely excludes “call detail records” from the scope of §215—and only from §215. The bill defines “call detail records” as “communications routing information,” which sounds awfully general, but both the description as “call detail records” and the series of enumerated telephony-specific data types that follow strongly suggest it’s really limited to telephonic communications routing information. There’s some wiggle room here since the general term precedes the more specific enumeration, but especially in light of the subsequent separate prohibition on acquisition of “electronic communications” records, defined to exclude telephonic communications, I’d be surprised if the FISC didn’t read this narrowly. Though the “including” that precedes the enumerated data types indicates that it’s not exhaustive, the omission of location-associated terms like “cell site and sector” is conspicuous. HPSCI staff are apparently assuring reporters that location data is implicitly included, but we do know that law enforcement routinely obtain bulk location data in the form of “tower dumps,” or records of all the phones registered with a specific cell tower at a particular time. Since phones routinely do this even when they’re not placing a call—which is to say, when no particular “communication” is being “routed”—it’s at least an open question whether this provision forbids bulk collection of tower location data.