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Author: Danielle Citron

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Rulemaking 2.0

Government officials are increasingly adopting Web 2.0 technologies to connect with citizens. Governors and mayors are blogging and posting videos on You Tube. See here. The State Department has an internal wiki called Diplopedia, which it presented at the Wikipedia conference in Alexandria, Egypt. Perhaps agencies will similarly embrace Web 2.0 platforms to transform their e-Rulemaking efforts, which to date have simply reproduced offline NPRMs and comments online. Rumor has it that the ABA has a committee working on potential e-Rulemaking projects. If the ABA produces a report, it might interest the new administration, but only if online tools would cheaply and effectively bring together stakeholders and the public to discuss proposed agency action.

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Investigation of FCC Ends, For Now

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In January 2008, the House Energy and Commerce Committee initiated a formal investigation into the FCC’s “regulatory procedures and practices.” At issue were concerns that agency officials abused how items were brought to a vote, leaked information to certain lobbyists and not to others, and insisted up moving forward with modifications of the ban on newspaper-broadcast cross-ownership depsite attempts to stop or delay agency action by members of FCC oversight committees in both Houses. According to Chairman John Dingell, the investigation would assess if the FCC’s procedures were conducted in a “fair, open, efficient, and transparent manner.” In March, the Committee asked FCC Chairman Kevin Martin for emails, memoranda, notes, phone conversations, meeting schedules and other information on the setting of FCC agendas, any limitations on communications between employees on official agency business, contacts with industry, personnel reassignments, among other things.

The Committee has just announced the end of its investigation. Now, the Committee is “considering how best to make our findings public, including a committee report.” The investigation did not include public hearings. Although the Committee members are no doubt distracted by the current fiscal crisis, one can hope that their report is issued soon.

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Two Women, Great Legacies

This week marked the passing of two women journalists who pioneered great change in their times. According to The New York Times obituaries section, Nancy Hicks Maynard, the first black woman to be a reporter at the New York Times, died at 61. Ms. Maynard joined the New York Times in 1968 where she stayed until 1974. At the Times, she reported on race riots, student takeovers at Columbia and Cornell, and the death of Robert F. Kennedy. She also wrote for the paper’s education and science news departments. She founded the Maynard Institute for Journalism Education, which has trained hundreds of minority journalists in the past 31 years. Ms. Maynard and her husband, Robert C. Maynard, a columnist for the Washington Post, bought the financially-ailing Oakland Tribune in 1983. The Times reports that her interest in journalism was sparked after a fire destroyed her former elementary school in Harlem. Outraged by the way her community was described in the press, she “decided she could make a difference.” Indeed, she did.

And so did Mary Garber, a journalist who first began covering athletics more than 60 years ago when female sportwriters were barred from press boxes and locker-room interviews, who passed away on Sunday. When Ms. Garber began her career as a sportswriter, the craft was dominated by men. Coaches treated her badly, her fellow sportswriters ignored her, and professional associations excluded her. But she perservered, first covering high school sports and then on college athletics. She also highlighted the acheivements of black athletes in the 1950s, in particular at Winston-Salem State, a time when “news about black people ended up on the Sunday newspaper’s ‘colored page.’” The Hall of Fame basketball coach Clarence Gaines told a reporter in 1990 that “We had outstanding athletes . . . and Mary came to write about them when no one else cared. Mary was always trying to help the underdog.” She later wrote for The Twin City Sentinel in Winston-Salem and The Winston-Salem Journal. In 2005, at 89, she became the first woman to receive the Associated Press Sports Editors’ Red Smith Award, presented annually for major contributions to sports journalism.

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The Troubles with Partisan Election Administration

McClatchy Newspapers reports that a Republican county clerk in Colorado has been accused of using the state’s registration laws to suppress student voting, which is expected to heavily favor Democratic presidential nominee Senator Obama. The clerk apparently distributed a flier to the college that said: “What this means is that if your parents still claim you on their income tax returns, and they file that return in a state other than Colorado, you are not eligible to vote or vote in Colorado.” (Jon Greenbaum of the Lawyers Committee for Civil Rights Under Law explains that states and counties cannot adopt rules that one group of voters differently than others). Colorado Democrats also accused another county elections clerk, a delegate to the Republican National Convention, of taking other steps that would dampen voting by college students. That clerk admitted that he “mistakenly published information that was incorrect.” Local election officials in Virginia and South Carolina have similarly discouraged college students from voting. And, in Michigan, Democrats have filed a lawsuit seeking an order barring Republicans from using lists of people facing mortgage foreclosure proceedings as a basis for challenging their eligibility.

The partisan nature of election administration is troubling, both because it has long raised issues of deception to suppress voting and because it lowers the pubic’s confidence in the election process. As election law expert Richard Hasen has advocated, states should replace partisan election officials with a cadres of nonpartisan, professionalized election administrators on the state and local levels of government.

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Update on State Department Passport Breach

In March, reports emerged that State Department employees gained unauthorized access to the passport files of Senators Clinton, McCain, and Obama, leaving many wondering if politics played a role in the breach. Wired Blogs reports that, on Monday, a former State Department Bureau of Intelligence and Research analyst pleaded guilty to unlawfully accessing the passport records in violation of Section 1030(a)(2)(B) of Title 18 of the U.S. Code. The analyst admitted that between 2005 and 2008, he read the passport applications of “approximately 200 celebrities, athletes, actors, politicians and their immediate families, musicians, game show contestants, members of the media corps, prominent business professionals, colleagues, associates, neighbors, and individuals identified in the press.” The government said the analyst accessed the applications out of “idle curiosity.” If indeed that is true, a year in jail is a hefty price to pay to itch the curiosity scratch.

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Playing Fast and Loose with Genetic Information

According to the New York Times, Google co-founder Sergey Brin, in a recent blog post, shared the news that he has a gene mutation that increases his likelihood of developing Parkinson’s disease. According to Brin, studies show that his likelihood of developing the disease “in his lifetime may be 20% to 80%.”

What would possess Brin to disclose this sensitive personal information? The simple answer may lie in a crass attempt at advertising for his wife’s company, 23andMe, a biotechnology start-up that maps DNA for customers. In his blog post, Brin reported that 23andMe identified his gene mutation, a discovery that will allow him to “adjust his life to reduce” his chance of developing Parkinson’s and “support research into this disease” long before it affects him. (At a party, Brin told a New York Times reporter that he thought disclosing one’s DNA code to the public would be helpful to attract input from doctors who could suggest treatments, in a sort of open-source model). But for anyone else–a mere mortal who does not have the luxury of his wealth–such a disclosure would be foolish. Employers would no doubt view a person differently, even though the increased chance of developing the disease based on the gene mutation is so uncertain. His disclosure also sends the wrong signal to the easily influenced–one hopes that we do not see people announcing their potential diseases on Facebook or MySpace.

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Flaws in the Election Assistance Commission

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Senate Majority Leader Harry Reid recently appointed Barbara Simons to the Election Assistance Commission’s Board of Advisors, the federal body that sets voting technology standards for states that volunteer to be bound by them. As noted e-voting expert and computer scientist Professor Ed Felten explains, Simons is an accomplished computer scientist who will provide badly needed expertise on voting technology to the 37-member board. Before Simons’s appointment, none of the four board seats allocated for “professionals in the field of science and technology” had been filled.

Although appointing Simons is an important step in the right direction, more e-voting experts and technologists must be appointed and now. The EAC’s board is knee-deep in public hearings about the newest version of the Voluntary Voting Standards Guidelines (VVSG). This version of the VVSG—a massive 600 page document—has received serious criticism for its prescription of numerous contested requirements for voting technology that arguably hinder experimentation. The critics’ argument makes a tremendous amount of sense as rapidly-changing technologies are often best guided by standards that can accommodate rapid change. Professor Felten suggests that 10% of the board ought to be reserved for technologists. Even more technologists would be better as a central function of the EAC is the enhance accuracy and security of voting technologies. The majority and minority leaders of the House and Senate who appoint the board members should be seriously considering appointing e-voting experts, such as Professors Felten, Dan Wallach, and Avi Rubin for board membership.

IImage by Joebeone, from Wikicommons, under a CC-BY-2.5 license

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What Comes Around Goes Around

Today’s New York Times reports that a 68-year-old broker stole over $600,000 from elderly clients and then lost most of his loot in an Internet fraud scheme. The broker received an email from someone claiming to represent his distant relative who had died and left him over eight million dollars. The broker took the bait and wired overseas more than $400,000, apparently believing that the money would aid in the release of the inheritance.

Despite the significant publicity devoted to exposing such scams, consumers continue to fall prey to email fraudsters in significant numbers. Reports suggest that 29% of Internet users have been deceived by spam emails. According to the Sydney Morning Herald, Australians lost $36 million dollars last year to fraudsters claiming affiliations with Nigeria. An intriguing new scam involves fraudsters who set up fake profiles on dating sites, stringing along targets for months before agreeing to meet and then asking for money to help pay for a plane ticket. Some, like the Nigerian High Commission, suggest that the deceived are as guilty as those who ask for money and thus should be subject to arrest as well. That sentiment may not convince many, but in the case of the New York broker who stole his clients’ life savings, the email scam is truly just deserts.

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Shiller’s Subprime Solution

In his 2005 book Irrational Exuberance, Yale economist Robert Shiller predicted the once unthinkable, and now unfortunate present: the boom and bust in real estate that would have grave consequences both in the U.S. and globally. In his newest book The Subprime Solution, Shiller calls for sweeping reform to address the current crisis. Part of his answer is greater transparency through financial databases and disclosures. He also argues for a Financial Product Safety Commission to protect consumers of financial products and services, much in the same way that the Consumer Products Safety Commission sheds light on, and removes, unsafe consumer products. This transparency-enhancing argument recalls the important proposal for a Federal Search Commission made by Frank Pasquale and Oren Bracha in the most recent issue of the Cornell Law Review. Whatever the merits of Shiller’s numerous suggestions, one thing is certain: heightened transparency of financial products and services would provide significant benefits to consumer confidence and the industry itself.

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Fairfax on “Too Big to Fail”?

Over at the Conglomerate, Lisa Fairfax has a superb post on the current bailout crisis entitled “Too Big To Fail”? She writes:

“A dominant theme in the recent discussions of the bailouts is that certain entities are “too big to fail.” This got me thinking about the notion of “too big to fail” and its ramifications. In particular, I wonder whether and to what extent we need to pay closer attention to companies that are “too big to fail” going forward. A few questions come to mind. When people say that a company is too big to fail, does that really mean that a company is simply “too big”? If so, does that mean that we need to do more to encourage smaller companies, or at the very least do more to discourage large companies or companies that are intertwined with too many industries? Does it mean that these larger companies simply need to be broken apart, much in the way that we demanded AT&T break off into the baby bells. Alternatively, is there some value with ensuring that companies do not get “too big” in the sense that companies should be discouraged from having their tentacles in so many critical and multi-faceted operations that they play a pivotal role in the healthy operation of our markets, even if it does not have anti-trust implications? In other words, if a company is too big to fail, should we have taken steps to prevent these companies from getting so big, and presumably so important, to our economic health? And if so, should this be a focus for the future?

On the other hand, let’s assume that we are not prepared to discourage the growth of “too big” corporations. Perhaps then we need to take seriously increased regulation for such companies. Indeed, perhaps our current governance system is not equipped to monitor these companies. Moreover, if certain companies are so crucial to our economic health that we cannot permit them to fail, then it seems that we have an important interest in knowing as much as we can about those companies—and potentially more than we know about other companies. Enhanced disclosure and transparency not only would help us in times of crisis, but it would allow us to take preventative steps to combat problems before they arise. To be sure, some may contend that these companies are already heavily watched, while others may resist increased oversight of particular entities within the corporate world. But perhaps enhanced oversight is the price these “too big” companies must pay once we acknowledge that their continued existence is critical to our markets.”

Because the politicians have been saying that companies like Lehman were “too big” for the government to let fail, and because the news is awash in this talk, I thought that the readers here would benefit from Fairfax’s discussion.