Topic: Telecom, Internet & Information Policy

Reversing the Course of a River

Bruce Schneier is a smart and interesting guy. His sound thinking on computer security has influenced me a great deal, and it extrapolates well into related fields like national security. So I’m always interested to find writings of his with which I disagree. A recent essay in Wired, entitled “Our Data, Ourselves” is one. It calls for “a comprehensive data privacy law.”

This law should protect all information about us, and not be limited merely to financial or health information. It should limit others’ ability to buy and sell our information without our knowledge and consent. It should allow us to see information about us held by others, and correct any inaccuracies we find. It should prevent the government from going after our information without judicial oversight. It should enforce data deletion, and limit data collection, where necessary. And we need more than token penalties for deliberate violations.

If he really believes that these rules should govern the collection and use of data - “all information about us!” - what an administrative nightmare that would be to implement. The benefits of doing so would be quite small in comparison.

Some of these things are agreeable, such as judicial oversight of government data collection (the Fourth Amendment is that law) but even a solid libertarian like myself wouldn’t endorse judicial oversight of government officials looking up information about me on public Web sites, for example.

And should I have a right to review any email in which people discuss this blog post and its author? Incredible.

The flaw in this article (beyond its carelessness) is Bruce’s treatment of these information practices as all-new, and needing an all-new regulatory regime, just because decision-making is now undertaken using “data.”

Whoever controls our data can decide whether we can get a bank loan, on an airplane or into a country. Or what sort of discount we get from a merchant, or even how we’re treated by customer support.

But it’s always been true that decisions like these are made using “data” - perhaps not in digital form, but data/information all the same. When has a decision ever been made not using “data”? We don’t need to throw out old rules about privacy, fairness, and so on just because information is digitized.

Many of Schneier’s premises are correct. The change from analog to digital data systems does cause a lot more tracks to form behind people as they traverse the economy and society. This creates lots of efficiency, convenience, wealth, and problems - threats to privacy, fair treatment, personal security, seclusion, and liberty. Let’s deal with them - each one - on their merits rather than trying to write a single law to overhaul the use of information in society.

Reversing the course of a river would be a tiny problem compared to what Schneier proposes.

Lieberman: Censor

The Google Public Policy blog has a write up of the company’s recent interactions with Senator Joseph Lieberman (D-CT) and his staff regarding some videos hosted on YouTube.

Senator Lieberman thinks that certain terrorism videos shouldn’t be displayed. Well, actually, a U.S. Senator has no business telling anyone what information should or shouldn’t be published. Congress can pass a law on the subject, which law would never pass First Amendment muster.

Perhaps Senator Lieberman thinks that censoring communications is some kind of anti-terrorism policy. Advocacy of terrorism of glorification of terrorist acts is stupid and dastardly, but the cure for bad speech is more speech or better speech, not censorship.

Peer-to-Patent

Here’s a video highlighting the Peer-to-Patent project originated by Beth Noveck and New York Law School’s “Do Tank.”

Whether because of inappropriately low standards for granting patents or recent decades’ outburst of inventiveness in technological fields, the Patent and Trademark Office is swamped. Patent examiners lack the breadth of knowledge in relevant fields to do the job they should be doing on each patent application. Drawing on the knowledge of interested and knowledgeable people can only improve the process, and this project aims to do just that.

I’ve written favorably about Peer-to-Patent at TechLiberationFront a couple of times, but here’s a cautionary note: A successful Peer-to-Patent program would result in a dispersion of power from patent examiners and the USPTO to the participants in the project. Surface support from the USPTO notwithstanding, the application of public choice theory to bureaucracies (by Cato’s own Bill Niskanen) tells us that the agency won’t give up this power without a fight.

REAL ID Update From the Upper Midwest

The upper Midwest is where the REAL ID action is these days. Our national ID law is getting its airing in the lands of lutefisk and cheese.

In Minnesota, Governor Tim Pawlenty (R) vetoed an entire transportation bill to spike anti-REAL ID provisions that the legislature had included. The legislature turned around and passed a free-standing anti-REAL ID bill with a veto-proof majority.

Now Pawlenty is seeking to make patsies of the legislature. Along with vetoing the new bill, he issued an executive order that would prevent Minnesota’s full compliance with the federal Real ID program before June 1, 2009 unless the legislature approves. That sounds good - until you realize that the Department of Homeland Security’s current deadline for even pledging to comply is October 11, 2009.

Pawlenty’s executive order conceded nothing to his state’s legislators, whom he’s treating as dupes.

Turning to Wisconsin, Rep. Jim Sensenbrenner’s (R) advocacy for REAL ID has garnered himself an opponent in the state’s September 9 Republican primary. Jim Burkee, an associate professor of history at Concordia University Wisconsin, has published a thorough piece on REAL ID, titled “‘The Sensenbrenner Tax’ Abandons True Conservatism.”

Rep. Sensenbrenner reportedly soured the Wisconsin Republican Party’s convention by trashing fellow Republicans over their reluctance to go along with the national ID law. A week ago, he leveled a shrill attack on the Wisconsin governor when Governor Doyle (D) announced plans to take more than $20 million out of the state’s REAL ID account and transfer it into the state’s general fund.

Watch this space for more interesting developments.

Rep. Tom Davis, Republican Brand Mangler - Er, Manager

In the opening segment of this week’s Washington Week on PBS, Representative Tom Davis (R-VA) commented on the viability of the Republican party in the upcoming elections: “The Republican brand name - if you were to put this on a dog food - the owners would just take it off the shelf because nobody’s buying it.”

Davis has more than a little responsibility for these circumstances. He’s been a consistent cheerleader of the REAL ID Act, for example, the moribund national ID law. He has consistently pressed and promoted REAL ID. He claimed that imposing $17 billion in costs on state governments is not an unfunded mandate, and pretended like shaking $50 million in federal money loose made any difference. Davis saluted the final regulations when they were issued earlier this year.

In a REAL ID story including Davis, Federal Computer Week saw fit to note that he “represents a Northern Virginia district heavily populated by federal employees and government contractors.”

P.J. O’Rourke comments in the most recent Cato’s Letter: “It took a Democratic majority in the House of Representatives 40 years—from 1954 to 1994—to get … corrupt and arrogant, and the Republicans did it in just 12.” Being wrong on liberty, even in service to your district’s government contractors, is not good for your party’s brand, Mr. Davis.

Reining In Abstract Patents

Over at Ars Technica, I’ve got an in-depth discussion of In Re Bilski, an important case that was argued before the U.S. Court of Appeals for the Federal Circuit last week. The Federal Circuit has jurisdiction over most patent appeals and, until recently, their decisions were rarely reviewed by the Supreme Court, making them effectively the final authority on patent issues. And unfortunately, they’ve made quite a mess of things, departing dramatically from Supreme Court patents and allowing patents on broad, abstract concepts (including software, which I wrote about last year). The result has been an explosion of low-quality patents and frivolous litigation:

Amazon’s much-derided one-click patent was approved the year after the decision. Patent litigation in the software industry has exploded with firms facing lawsuits over patents covering extremely broad software concepts such as wireless e-mail, web embedding, and converting IP addresses to phone numbers. Technically, these patents cover general purpose computers executing the algorithms described in the patent rather than the algorithms themselves. But because no one executes such algorithms with pen and paper, the net result has been to give the patent holders effective monopolies on the algorithms themselves.

The Federal Circuit has been catching a lot of flack for its patent jurisprudence in recent years, and they’ve showed an increased interest in revisiting past precedents. As I discussed in a Cato podcast last week, In Re Bilski concerns a patent that was rejected by the USPTO for being too abstract. In its call for amicus briefs in the case, the Federal Circuit explicitly asked for opinions on whether it should revisit its key rulings on abstract patents from the 1990s.

Unfortunately, the oral arguments suggest that the Federal Circuit is unlikely to abandon its dubious experiment with allowing patents on software and other abstract concepts. At best, I think we can expect the court to tinker at the edges, restricting the most egregiously abstract patents.

I’m more optimistic about the Supreme Court, which has shown a renewed interest in patent law in recent years and has shown no compunctions about overturning the Federal Circuit’s patent decisions. At least three Supreme Court justices (Scalia, Breyer, and Stevens) have raised questions about the patentability of software, suggesting that there may be some skepticism from the Supremes on this issue. If the case gets appealed to the Supreme Court, it will be another opportunity to correct a Federal Circuit that has not done a good job of respecting Supreme Court patent precedents.

Wisconsin Governor Defunds REAL ID

WisPolitics.com reports that Wisconsin Governor Jim Doyle (D) plans to take more than $20 million out of the state’s REAL ID account and transfer it into the state’s general fund.

Wisconsin Representative Jim Sensenbrenner (R) objects:

When I shepherded the REAL ID bill through Congress 3 years ago, it was in response to one of the key recommendations made by the 9/11 Commission, that ‘fraud in identification documents is no longer just a problem of theft.’ As we saw in 2001, in the hands of a terrorist, a valid ID accepted for travel in the US can be just as dangerous as a missile or bomb.

Congressman Sensenbrenner is correct to claim responsibility for REAL ID, but less accurate in other parts of his statement. The 9/11 Commission’s ‘key’ recommendation wasn’t key. (Indeed, Congress’ effort to follow the Commission’s recommendation was repealed by REAL ID.)

Nobody - not the 9/11 Commission, not Congressman Sensenbrenner, not Stewart Baker, nor anyone else - can explain the proximity between false ID and terrorist attacks, or how REAL ID cost-effectively secures the country against any threat.

Wisconsin’s governor has issued a mighty well-placed snub to the creator of the “Sensenbrenner tax.”