Topic: Telecom, Internet & Information Policy

A Condom Conundrum: Private Parts in the Public Sphere

By
Julian Sanchez

While they were turning out to the polls to help reelect President Obama on Tuesday, residents of Los Angeles County also approved a ballot initiative known as “Measure B,” requiring the producers of “adult films”—meaning porn, not Criterion Collection fare—to acquire a public health permit and adhere to a number of regulations, most controversially a mandate that performers wear condoms on the set. Prominent industry figures such as James Deen have opposed the measure on the grounds that it is unnecessary in light of the existing rigorous testing regime, counterproductive in the context of shoots that require performers to have intercourse for “nonstandard amounts of time,” and will ultimately be ineffective as filming will simply move outside Los Angeles County.

These are all compelling points, but the measure also raises some interesting theoretical questions in an industry where, as in journalism before it, new technology has blurred the once-sharp lines between amateur and professional content production.

While I will refrain from linking to any examples on this family-friendly blog, “traditional” professionally produced adult video now competes with an array of sites specializing in amateur or quasi-amateur sexual content. Some entrepreneurial couples and individuals launch their own personal sites, making home videos and live webcam streams available to subscribers. Other sites act as middlemen, purchasing home videos shot by amateur couples for online distribution. Still others serve as platforms on which individuals and couples can stream live sexual content from their home web cameras, earning revenue based on the number of viewers. While it seems clear that Measure B is not intended to target these amateur producers, they do seem to fall within the scope of the law’s definitions, strictly construed.

Here’s a thought experiment: Imagine a couple who sometimes tape their sexual activity for—at least initially—their own private enjoyment. In the past, when money was tight, they periodically sold these videos to a subscription-based website that specializes in homemade fare, and they expect that they may do so again in the future as the need arises. At what point are they required to  register with the state and pay a permit fee if they wish to continue taping in their own bedrooms? If they fail to do so, are they later liable should they attempt to sell or self-distribute those recordings, either for a subscription fee or on an ad-supported website?

Now, realistically, I find it almost inconceivable that Los Angeles would seek to enforce the law against the imaginary couple I’ve described. I find it slightly more plausible that an L.A.–based couple who maintain their own site could be affected, and one can also imagine an aggregation and distribution site or platform being targeted—perhaps at the urging of traditional studios looking to eliminate the competition—though it is hard to see how such sites could feasibly comply with some of the law’s requirements. If a similar law were adopted nationally, or by many states—making it harder for professional studios to resume business by moving elsewhere—some of these scenarios become a good deal less far-fetched.

Again, given that the intent of the law is fairly clearly to regulate traditional professional porn studios, I expect that in practice they are likely to be the exclusive targets of enforcement for the foreseeable future, and those who wish to continue shooting scenes sans-latex will find plenty of nearby jurisdictions happy to welcome their business. Still, I think it’s an interesting class of hypotheticals to contemplate, because it problematizes the widespread view that there’s some sharp and clear distinction between the realm of private intimacy shielded from state interference and the realm of commerce subject to broad regulation. Here, it becomes especially clear that the commercial regulation inevitably implicates rights of personal sexual choice and bodily autonomy. But commerce has never really been some hermetically sealed domain, where rules that conflict with the values or preferences of workers and entrepreneurs somehow don’t count as impinging on personal autonomy, in contrast with the sacrosanct domain of the home where such intervention would be anathema. In a digital economy that makes “home” and “workplace” the same place for a growing number of people—where the boundary between personal projects and production for profit becomes increasingly blurred—that distinction seems likely to become increasingly untenable in more and more areas.

Topics: 
Law and Civil Liberties, Regulatory Studies, Telecom, Internet & Information Policy

This Would Raise the Price of Cell Phone Service

By
Jim Harper

You’d think consumers didn’t care about price.

This HuffPo piece makes the wireless industry’s resistance to regulation requiring backup power at cell sites sound all “corporate-y.”

“The biggest issue is they have not wanted to invest the money in hardening their networks sufficiently against a catastrophic event,” says Harold Feld, senior vice president at Public Knowledge.

Industry group CTIA says the proposed requirements “would unnecessarily burden wireless carriers and potentially undermine the investments and network planning that have made their networks so successful.”

What about the fact that the cost of backup power requirements would be passed on to consumers in the form of higher prices?

The case for a backup power regulatory mandate sounds weak. During the biggest storm in who-knows-when, in the most populous regions of the country, “thousands” were left without cell phone service. What percentage of the New York-New Jersey metropolitan area’s population is that?

“As power returned to many areas over the weekend, wireless carriers reported that more than 95 percent of their cell towers in areas affected by the storm were working.”

Lost service is a real thing that happened, but other dimensions of preparedness and response seem to have gone much worse.

To the extent lost service had a proximate relationship to someone not getting the help they needed, Superstorm Sandy makes clear the consequences of large weather events, and it will educate consumers and cell phone providers both about the risk of lost communications during natural disasters. Both will respond as they see fit.

But raise everybody’s cell phone bill permanently to secure against outlier events? Let’s put our thinking caps on:

Given the increased cost, marginal cell phone consumers would drop their service and they wouldn’t have access to communications when they were in emergency situations.

It seems to me that getting a cheaper cell phone plan to people who may often have occasion to report muggings-in-progress is a greater protection for the public than insuring the wealthier consumer against lost service during extremely rare weather events.

Topics: 
Telecom, Internet & Information Policy

Obama Lags House Republicans on Data Transparency

By
Jim Harper

For the last two years, we have been working on the question of data transparency. In a paper last fall called Publication Practices for Transparent Government, we examined what it takes to foster transparency. And we started informally grading the quality of data put out by Congress and the administration. First, it was legislative data, which, as I reported here, needs improvement. (Also see our Capitol Hill briefing.) Then it was budget, appropriations, and spending data. In that area, “needs improvement” is an understatement. (And another Capitol Hill briefing.)

Now we are in a position to formally grade the quality of data coming out of the government. And the interesting finding, to be formally released on Monday, is that President Obama lags House Republicans in transparent data publication. The paper is called “Grading the Government’s Data Publication Practices.”

Obama is the president who ran in 2008 on strong promises of transparent government. Within minutes of his taking office on January 20, 2009, the Whitehouse.gov website declared: “President Obama has committed to making his administration the most open and transparent in history.”

His first presidential memorandum, issued the next day, was entitled “Transparency and Open Government,” and it declared:

My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

That hasn’t really happened.

President Obama’s Sunlight Before Signing campaign promise— his pledge to post laws to the White House website for five days of public comment before he signed them—was his first broken promise. It went virtually ignored in the first year of his administration.

But it wasn’t a lack of energy and creativity that derailed the transparency project.

It was a subtle “shift in vocabulary” in the open government effort. Instead of data about the core of government that made Obama’s campaign claims so attractive, data about the government’s deliberations, management, and results, the administration delivered data the government collects and warehouses about everything under the sun.

There is still no machine-readable organization chart for the federal government. The agencies, bureaus, programs, and projects of government—its basic building blocks—don’t have identifiers people could use to track the government with the aid of their computers. That is why, as you can see above, the administration gets very poor grades on its data publication practices.

Meanwhile, the Congress has plodded forward with data publication reforms that, although minor, represent progress. The House leadership, for example, produced docs.house.gov, at which it makes available the bills coming to the House floor in a format that can be automatically read and disseminated.

A follow-on, beta.congress.gov, will eventually replace the THOMAS Web site. THOMAS was revolutionary for its time, but ideally a basic web interface and bulk data access will make for a robust legislative information environment.

Congress’s grades are better than the administration’s, though nobody can argue that the job is done.

The report summarizes things this way:

Between the Obama administration and House Republicans, the former, starting from a low transparency baseline, made extravagant promises and put significant effort into the project of government transparency. It has not been a success. House Republicans, who manage a far smaller segment of the government, started from a higher transparency baseline, made modest promises, and have taken limited steps to execute those promises.

Topics: 
Telecom, Internet & Information Policy

Drug-Sniffing Dogs Are Sense-Enhancing Technology

By
Jim Harper

The Supreme Court heard oral argument yesterday in Florida v. Jardines, a case that examined whether bringing a drug-sniffing dog to the front door of a home looking for drugs was a Fourth Amendment search.

Having attended the oral argument (transcript; audio forthcoming), my sense is that a majority on the Court thinks dog-sniffs at front doors (absent a warrant) go too far. But few of the justices know why. The one who does is Justice Kagan.

What rationale might the Court use to decide the case? Even after United States v. Jones threw open Fourth Amendment doctrine, the instinct for using “reasonable expectation of privacy” analysis is strong. (I’ve joked that many lawyers think the word “privacy” can’t be uttered without the prefix “reasonable expectation of.”) This is where much of the discussion focused, and Justice Breyer seemed the most firmly committed to its use.

But the insufficiency of “reasonable expectation” doctrine for providing a decision rule was apparent when Breyer teed up Jardines’s counsel to knock the case out of the park. There was much discussion of what one reasonably expects at the front door of a home. Neighbors may come up. Trick-or-treaters may come up. Neighbors may come up with their dogs. The police may come to the door for a “knock and talk.” Neighbors, trick-or-treaters, dogs, and police officers may all come up and discover odors coming from the house. What makes the drug-sniffing dog unexpected?, Justice Breyer asked:

Do in fact policemen, like other people, come up and breathe? Yes. Do we expect it? Yes, we expect people to come up and breathe. But do we expect them to do what happened here? And at that point, I get into the question: What happened here?

Joelis Jardines’s counsel could not say what made the dog unexpected.

Perhaps property law draws the line that excludes government agents with drug-sniffing dogs, while allowing other visitors to come to the door. Not so. Justice Alito in particular pressed Jardines’s counsel for any case that had excluded dogs (drug-sniffing or otherwise) from the implied consent one gives to visitors on the walk and at the front door. The argument is unavailing, this idea that Florida’s property law (put into play by the majority holding in Jones, which relied on property rights) solve this case. Florida property law doesn’t exclude dogs from the implied permission it gives to lawful visitors on residential property.

None of this is to say that the government had it easy. Florida’s counsel had uttered just three sentences when Justice Kennedy informed him that the rule from Illinois v. Caballes would not carry the day. In Caballes, the Court found there to be no search at all when government agents walked a drug-sniffing dog around a car stopped for other reasons. (I attacked what I called the “Jacobsen/Caballes corollary” to the Katz decision in the Cato Institute’s brief to the Court, and also in this Jurist commentary.)

It won’t be the rule from Caballes. So what is the rationale that decides this case?

Justice Scalia was on the scent when he reasoned with the government’s counsel about what might be done with binoculars.

“As I understand the law,” he said, “the police are entitled to use binoculars to look into the house if—if the residents leave the blinds open, right?”

Florida’s counsel agreed.

“But if they can’t see clearly enough from a distance, they’re not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?”

“They’re not, Your Honor.”

“Why isn’t it the same thing with the dog?”

Justice Kagan knows that it is. And she used Justice Scalia’s reasoning in Kyllo v. United States, the precedent that is on all fours with this case.

She recited from Kyllo: “ ‘We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.’” And she asked Florida’s counsel, “[W]hat part of that language does not apply in this case?”

“Franky’s nose is not technology,” he replied, referring to the dog. “It’s—he’s using—he’s availing himself of God-given senses in the way that dogs have helped mankind for centuries.”

The existence of dogs in human society for centuries might help the government if dogs had been used for drug-detection all this time. And then only if the question was what it is reasonable to expect.

What matters is that a drug-sniffing dog is indeed a form of sense-enhancing technology. Selected for its strong sense of smell, and trained to convey when particular odors are present, a drug-sniffing dog makes perceptible to law enforcement what is otherwise imperceptible.

And that is the very definition of searching. At least as Black’s Law Dictionary has it: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view.”

Police officers use dogs to search for drugs and other materials in which they are interested but which they cannot see by themselves. A drug-sniffing dog is a cuddly chromatograph.

And just now, quietly, you have seen at work the rationale that the Supreme Court should use to decide Florida v. Jardines. Was it a search to bring a drug-sniffing dog to the front door of a house? The Court should apply the plain meaning of the word “search” to the facts of the case that has come before it. There’s no need for doctrine at all.

Topics: 
Cato Publications, Law and Civil Liberties, Telecom, Internet & Information Policy

The Fourth Amendment in the Supreme Court This Week

By
Jim Harper

Prior to the development of trade and commerce, movable property was “not esteemed of so high a nature, nor paid so much regard to by the law,” Blackstone tells us in his commentaries on the laws of England. Such property in transit was routinely confiscated by authorities or tariffed at exorbitant rates.

When commercial relations expanded, the quantity and value of personal property increased, and the law “learned to conceive different ideas of it.” Legal protection for movable property increased.

In parallel to the growth of commerce in movables centuries ago, commerce in information is on the rise today. It may be time to “conceive different ideas of it” as well—different ideas that accord information similar protection. This is what a group of amici have encouraged the Supreme Court to do in a brief on an important privacy case being argued this week.

In Clapper v. Amnesty International, the Gun Owners Foundation, Gun Owners of America, Inc., the U.S. Justice Foundation, the Downsize D.C. Foundation, DownsizeDC.org, and the Conservative Legal Defense and Education Fund have argued that the Court should recognize a property interest in confidential communications. Doing so would more clearly establish the standing of the respondents in this case to challenge the global wiretapping program Congress established in the FISA Amendments Act of 2008.

William J. Olson, lead counsel on the brief, articulated the issues well in an email distributing it:

Our amicus brief in the Clapper case extrapolates from the court’s holding in Jones and identifies the property interests at stake in this case as confidential communications that are critical to the practice of law and of the enterprise of journalism. Using a property analysis, the citizens in Clapper have a protectable property interest in their electronic communications as they do in their written communications. Thus, even though plaintiffs are not “targeted” by the Government, the Government’s contention that their search and seizure of plaintiffs’ communications is only “incidental” is unavailing.

Jones v. United States, of course, is the case decided in January, in which government agents tracked a suspect’s car for four weeks using a GPS device without a valid warrant. The Supreme Court found unanimously that this violated the Fourth Amendment. My article in the most recent Cato Supreme Court Review (2011-12) analyzes the case, and you can get a taste of that analysis in the most recent Cato Policy Report (September/October 2012).

I also discussed the Fourth Amendment status of communications in the Cato Institute’s brief in Florida v. Jardines, which is also being argued in the Supreme Court this week. The Court found Fourth Amendment protection for postal mail in an 1877 case, but stumbled when faced with the next iteration of communications technology.

In the year this Court decided Ex Parte Jackson, both Western Union and the Bell Company began establishing voice telephone services. Gerald W. Brock, The Second Information Revolution 28 (Harvard University Press, 2003). Now, instead of written messages in the post, representations of the human voice itself began moving across distance, at light speed, in a way few people understood. This is the technology this Court confronted in Olmstead v. United States, 277 U.S. 438 (1928).

The Court handled this technological development poorly. Chief Justice William Taft fixed woodenly on the material things listed in the Fourth Amendment’s search and seizure clause. Wiretapping had not affected any of the defendants’ tangible possessions, he found, so it had not affected their Fourth Amendment rights. Olmstead, 277 U.S. at 464. In dissent Justice Butler noted how “contracts between telephone companies and users contemplate the private use” of telephone facilities. “The communications belong to the parties between whom they pass,” he said. Olmstead, 277 U.S. at 487 (Butler, J., dissenting). Cf. Ex Parte Jackson, 96 U.S. 727 (1877) (“Letters and sealed packages … are as fully guarded from examination and inspection … as if they were retained by the parties forwarding them in their own domiciles.”).

Florida v. Jardines is not a communications case. The issue is whether the sniff of a trained narcotics-detection dog at the front door of a house is a Fourth Amendment search requiring probable cause. Cato’s brief invites the Court to dispense with the unworkable “reasonable expectation of privacy” test, using the plain meaning of “search” instead.

Black’s law dictionary defines “search” as “looking for or seeking out that which is otherwise concealed from view.” Smells that only trained dogs can detect are indeed otherwise concealed from humans.

Familiar though ordinary pet dogs are, a trained dog is a chromatograph. The Court should follow the Fourth Amendment’s language and precedents like Kyllo v. United States to find that a drug-dog’s sniff is a search.

A companion to Jardines, Florida v. Harris, is being argued the same day. That case will examine the sufficiency of drug-dogs as evidence of wrongdoing, an issue that has not received careful examination in the past.

So it’s a big week for the Fourth Amendment in the Supreme Court. Stay tuned for developments.

Topics: 
Cato Publications, Foreign Policy and National Security, Law and Civil Liberties, Telecom, Internet & Information Policy

Free Speech Week, Day 3

By
Tim Lynch

Today, check out Cato work related to the defense of electronic speech:

Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

E-Mail Privacy Laws Don’t Actually Protect Modern E-mail, Court Rules

By
Julian Sanchez

In case further proof were needed that we’re long overdue for an update of our digital privacy laws, the South Carolina Supreme Court has just ruled that e-mails stored remotely by a provider like Yahoo! or Gmail are not communications in “electronic storage” for the purposes of the Stored Communications Act, and therefore not entitled to the heightened protections of that statute.

There are, fortunately, other statutes barring unauthorized access to people’s accounts, and one appellate court has ruled that e-mail is at least sometimes protected from government intrusion by the Fourth Amendment, independently of what any statute says. But given the variety of different types of electronic communication services that exist in 2012, nobody should feel too confident that the courts will be prepared to generalize that logic. It is depressingly easy, for example, to imagine a court ruling that users of a service like Gmail, whose letters will be scanned by Google’s computers to automatically deliver tailored advertisements, have therefore waived the “reasonable expectation of privacy” that confers Fourth Amendment protection. Indeed, the Justice Department has consistently opposed proposals to clearly require a warrant for scrutinizing electronic communications, arguing that it should often be able to snoop through citizens’ digital correspondence based on a mere subpoena or a showing of “relevance” to a court.

The critical passage at issue in this case—which involves private rather than governmental snooping—is the definition of “electronic storage,” which covers “temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof” as well as “any storage of such communication by an electronic communication service for the purposes of backup protection of such communication.” The justices all agreed that the e-mails were not in “temporary, intermediate” storage because the legitimate recipient had already read them. They also agreed—though for a variety of reasons—that the e-mails were not in “backup” storage.

Some took this view on the grounds that storage “by an electronic communication service for the purposes of backup protection” encompasses only separate backups created by the  provider for their own purposes, and not copies merely left remotely stored in the user’s inbox. This strikes me as a somewhat artificial distinction: why do the providers create backups? Well, to ensure that they can make the data available to the end user in the event of a crash. The copy is kept for the user’s ultimate benefit either way. One apparent consequence of this view is that it would make a big difference if read e-mails were automatically “deleted” and moved to a “backup” folder, even though this would be an essentially cosmetic alteration to the interface.

Others argued that a “backup” presumed the existence of another, primary copy and noted there was no evidence the user had “downloaded” and retained copies of the e-mails in question. This view rests on a simple technical confusion. If you have read your Gmail on your home computer or mobile device, then of course a copy of that e-mail has been downloaded to your device—otherwise you couldn’t be reading it. This is obscured by the way we usually talk: we say we’re reading something “on Google’s website”—as though we’ve somehow traveled on the Web to visit another location where we’re viewing the information. But this is, of course, just a figure of speech: what you’re actually reading is a copy of the data from the remote server, now residing on your own device. Moreover, it can’t be necessary for the user to retain that copy, since that would rather defeat the purpose of making a “backup,” which is to guarantee that you still have access to your data after it has been deleted from your main device! The only time you actually need a backup is when you don’t still retain a copy of the data elsewhere.

Still, this isn’t really the court’s fault. Whether or not this interpretation makes sense, it at least arguably does reflect what Congress intended when the Stored Communications Act was passed back in 1986, when there was no such thing as Webmail, when storage space was expensive, and when everyone assumed e-mail would generally vanish from the user’s remote inbox upon download. The real problem is that we’ve got electronic privacy laws that date to 1986, and as a result makes all sorts of distinctions that are nonsensical in the modern context of routine cloud storage. Legislation to drag the statute into the 21st century has been introduced, but alas, there’s little indication Congress is in much of a rush to get it passed.

Topics: 
Telecom, Internet & Information Policy

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