NCSL Calls for Repeal of REAL ID

The National Conference of State Legislatures wants the REAL ID Act gone. It supports S. 717, the Identification Security Enhancement Act of 2007, which would repeal the REAL ID Act and reinstitute a negotiated rulemaking process on identity security that was established in the 9/11-Commission-inspired Intelligence Reform and Terrorism Prevention Act.

It’s not a foregone conclusion that an organization like this would reject a behemoth of a project like building a national ID and surveillance system. The NCSL isn’t a small-government organization, and it could just as well have lobbied for billions of dollars in funding.

Microsoft Volunteers to Be the Poster Child for DMCA Reform

One of the big challenges of writing about tech policy is the difficulty of explaining the subjects I write about for a general audience. This was a particular challenge a couple of years ago when I wrote a Cato Policy Analysis about the anti-circumvention provisions of the Digital Millennium Copyright Act—just typing that out is a chore. I wish I could have pointed to this story as an example, because it brilliantly illustrates my argument.

A few years back, Microsoft developed a copy-protection scheme called PlaysForSure (it will become clear shortly how ironic that name was) that was supposed to prevent music customers from engaging in Internet piracy with music they bought from online music stores. Microsoft licensed the format to a variety of different companies and aggressively promoted it as an alternative to Apple’s iTunes-iPod ecosystem. Unfortunately, Microsoft failed to close the gap with Apple, so in 2006 Microsoft unveiled a new product line called Zune, effectively discontinuing development of PlaysForSure. Zunes are incompatible with PlaysForSure music. If you built up a music library in the PlaysForSure format, it would, um, not play for sure (or at all) on a Zune music player.

Up to this point this is just an ordinary business story, and nothing for libertarians to be concerned about. Companies drop old product lines all the time, and sometimes that means customers are stuck with compatibility headaches. But there’s just one problem: not only will Microsoft not help you play your PlaysForSure music on a Zune, but it’s illegal under the DMCA for anyone else to develop software to convert PlaysForSure music to a format that could play on Zunes, iPods, or any other format. Such software would be considered a “circumvention device”—ostensibly a piracy tool—and could bring civil and criminal penalties. If you were stupid enough to buy music in PlaysForSure format, you’re stuck with the dwindling number of PlaysForSure-compatible music programs still left on the market. You can burn your music to CDs, and then re-rip them to an open format, but this is a time-consuming process if you have a large music library, and it will lead to some degradation in the quality of the music.

As if all that weren’t enough, Microsoft yesterday announced the next step in its campaign to make the DMCA look ridiculous: this fall, it will be switching off the license servers that allow customers to “authorize” new computers and operating systems to play music from customers that bought music from its now-defunct MSN Music store. This means that if you have a library of music from the MSN Music store, and you buy a new computer or upgrade your operating system, there will be no legal way to take your music library with you.

If Congress hadn’t enacted the DMCA, this wouldn’t be a big deal. Third parties could develop software utilities that would automatically convert peoples’ PlaysForSure-formatted music collections into an open format like MP3, which would allow it be played on almost any computer or music player. Customers wouldn’t have to worry about whether their computer had been “authorized,” or whether the company they’d purchased the music from was running the necessary “license server.”

The most frustrating thing about this is that forcing consumers to jump through these hoops hasn’t made a dent in illicit file sharing. To this day, the music industry sells most of its music in the copy-protection-free CD format. Anyone can buy a CD, rip it to MP3 format, and upload it to the Internet. And music downloaded from peer-to-peer networks comes free of copy protection. Which means that the hassles imposed on consumers by the DMCA and copy protection formats like PlaysForSure haven’t slowed down piracy at all. All they’ve done is created unnecessary headaches for customers who were foolish enough to obey the law and pay for the music they downloaded.

Happy Tax Freedom Day!

Taxpayers can breathe a sign of relief. According to the Tax Foundation, April 23 is Tax Freedom Day. That means that the average American has finally earned enough to pay estimated federal, state, and local taxes for 2008. One of the most depressing finding in the Tax Foundation’s report is that Americans pay more in tax than they do for food, clothing, and shelter combined. To compensate for being the bearer of bad fiscal news, the Tax Foundation released an amusing video. It doesn’t quite equal this classic tax video, but it’s worth watching.

Money Meddling

Are you an entrepreneur who deposits a regular amount of your business revenues in the bank? Watch out, the government might come after you for illegal “structuring.”

Are you a high earner who regularly pulls out a substantial amount of cash from your bank account? Watch out, your bank could be sending ”suspicious activity reports” about you to the government, as former senator Bob Dole’s bank did.

Have you ever deposited or withdrawn more than $10,000 from your bank? Watch out, because your activities were recorded on a government database of “currency transaction reports,” which is growing by 16 million new reports each year.

Did you overstate your income on a loan form when you bought your house? Watch out, the government could nail you for both ”bank fraud” and “money laundering.”

Forbes focuses on government encroachments on our civil liberties in a series of articles this month. See here, here and here

As a tax wonk, the IRS angle in these articles caught my eye. But like many people, I find it very disturbing that continual expansions in federal power are shrinking the realm of privacy and individual automony in modern society.  

Better Weak than Worse

Yesterday, U.S. Secretary of Education Margaret Spellings proposed a slew of regulatory changes to the No Child Left Behind Act she said would throw “families lifelines—and empower educators to create dramatic improvement.”

Reading over the proposals, one is thoroughly underwhelmed because, as is typical for federal education involvement, they’re big on paper compliance while leaving more space than exists between Mercury and Pluto for states and districts to avoid real “accountability.” Almost all the new regs rely on terms open to wide interpretation like “close scrutiny” or “significantly more rigorous,” and even if they were specific, they’d be very hard to enforce, especially if they proved politically unpopular.

This said, we are better off with the toothless regs the administration is offering than a counter proposal put forth by House Democratic Caucus Chairman Rahm Emanuel. According to Congressional Quarterly, Emanuel said “we need bolder steps to make sure that Americans can compete. We should mandate a year of post-high school education for every American, while providing the necessary financial help. And we should institute a national policy…to suspend the driver’s licenses of teens who drop out.”

I guess things could actually be a lot worse than more regulations that no one is likely to follow. We could get laws that make everyone stay in our failing schools one year longer, and takes the keys from those who just want out.

Campaign Finance Reform Meets Kurt Vonnegut

This morning, as Pennsylvania Democrats went to the polls in the last large primary before their nominating convention, the Supreme Court heard the latest challenge to the McCain-Feingold campaign finance law: Davis v. FEC, in which Cato filed an amicus brief, questions the “Millionaires’ Amendment,” which attempts to discourage candidates for election to Congress from spending more than $350,000 from their own personal funds. It penalizes campaign spending above that threshold by enhacing the political speech of the self-financing candidate’s opponent through increased contribution limits and unlimited coordinated party expenditures. This penalty unconstitutionally chills candidates from engaging in protected political speech beyond that personal funds ceiling, and does so without serving any governmental interest that the Supreme Court has recognized. The penalty doesn’t even prevent the “corruption” that was the rationale for McCain-Feingold, because there is no threat of quid pro quo from a candidates’s expenditure of her own funds. And the Court has expressly rejected “leveling the playing field” of financial resources as an interest sufficient to justofy the infringement of First Amendment rights. Ultimately, the “Millionaires’ Amendment” is nothing more than an incumbency protection mechanism designed by Congress for its own benefit.

Based on this morning’s argument, I think the Court will issue a narrow decision striking down the Millionaires’ Amendment based on the disclosure burden, with separate concurrences on broader First Amendment grounds. The most interesting questioning, not unexpectedly, came from Justice Scalia, who, evoked the reductio ad absurdum of the “leveling” provision (which reminded me of the old Vonnegut story about equality run amock, Harrison Bergeron): “What if one candidate is more eloquent than the other one? You make him talk with pebbles in his mouth?”

Note: John Samples and I visited Capitol Hill yesterday to give a public briefing on the law and policy of self-funded campaigns.