Archive for the ‘Government Secrecy’ Category
posted by Orly Lobel
As Catherine Fisk and Danielle Citron point out in their thoughtful reviews here and here, the wisdom of freeing talent must go beyond private firm level decisions; beyond the message to corporations about what the benefits of talent mobility, beyond what Frank Pasquale’s smartly spun as “reversing Machiavelli’s famous prescription, Lobel advises the Princes of modern business that it is better to be loved than feared.” To get to an optimal equilibrium of knowledge exchanges and mobility, smart policy is needed and policymakers must to pay attention to research. Both Fisk and Citron raise questions about the likelihood that we will see reforms anytime soon. As Fisk points out — and as her important historical work has skillfully shown, and more recently, as we witness developments in several states including Michigan, Texas and Georgia as well as (again as Fisk and Citron point out) in certain aspects of the pending Restatement of Employment — the movement of law and policy has actually been toward more human capital controls rather than less. This is perhaps unsurprising to many of us. Like with the copyright extension act which was the product of heavyweight lobbying, these shifts were supported by strong interest groups. What is perhaps different with the talent wars is the robust evidence that suggests that everyone, corporations large and small, new and old, can gain from loosening controls. Citron points to an irony that I too have been quite troubled by: the current buzz is about the intense need for talent, the talent drought, the shortage in STEM graduates. As Citron describes, the art and science of recruitment is all the rage. But while we debate reforms in schooling and reforms in immigration policies, we largely neglect to consider a reality of much deadweight loss of through talent controls.
The good news is that not only in Massachusetts, where the governor has just expressed his support in reforming state law to narrow the use of non-competes, but also in other state legislatures , courts and agencies, we see a greater willingness to think seriously about positive reforms. At the state level, the jurisdictional variations points to the double gain of regions that void or at least strongly narrow the use of non-competes. California for example gains twice: first by encouraging more human capital flow intra-regionally and second, by its willingness to give refuge to employees who have signed non-competes elsewhere. In other words, the positive effects stem not only from having the right policies of setting talent free but also from its comparative advantage vis-à-vis more controlling states. This brain gain effect has been shown empirically: areas that enforce strong post-employment controls have higher rates of departure of inventors to other regions. States that weakly enforce non-competes are on the receiving side of the cream of the crop. One can only hope that legislature and business leaders will take these findings very seriously.
At the federal level, in a novel approach to antitrust the federal government recently took up the investigation of anti-competitive practices between high-tech giants that had agreed not to poach one another’s employee. This in fact relates to Shubha Gosh’s questions about defining competition and the meaning of free and open labor markets. And it is a good moment to pause about the extent to which we encourage secrecy in both private and public organizations. It is a moment in which the spiraling scandals of economic espionage by governments coupled with leaks and demand for more transparency require us to think hard. In this context, Citron is right to raise the question of government 2.0 – for individuals to be committed and motivated to contribute to innovation, they need some assurances that their contributions will not be entirely appropriated by concentrated interests.
November 14, 2013 at 1:36 am Posted in: Antitrust, Articles and Books, Behavioral Law and Economics, Corporate Law, Economic Analysis of Law, Empirical Analysis of Law, Employment Law, Government Secrecy, Intellectual Property, Law and Psychology, Symposium (Talent Wants to be Free), Technology Print This Post One Comment
posted by Albert Wong
By Albert Wong and Valerie Belair-Gagnon, Information Society Project at Yale Law School
In a recent article in the Columbia Journalism Review, we reported that major US newspapers exhibited a net pro-surveillance bias in their “post-Edward Snowden” coverage of the NSA. Our results ran counter to the general perception that major media outlets lean “traditionally liberal” on social issues. Given our findings, we decided to extend our analysis to see if the same bias was present in “traditionally conservative” and international newspapers.
Using the same methods described in our previous study, we examined total press coverage in the Washington Times, one of the top “traditionally conservative” newspapers in the US. We found that the Washington Times used pro-surveillance terms such as security or counterterrorism 45.5% more frequently than anti-surveillance terms like liberty or rights. This is comparable to USA Today‘s 36% bias and quantitatively greater than The New York Times‘ 14.1% or the Washington Post‘s 11.1%. The Washington Times, a “traditionally conservative” newspaper, had the same, if not stronger, pro-surveillance bias in its coverage as neutral/”traditionally liberal”-leaning newspapers.
In contrast, The Guardian, the major UK newspaper where Glenn Greenwald has reported most of Snowden’s disclosures, did not exhibit such a bias. Unlike any of the US newspapers we examined, The Guardian actually used anti-surveillance terms slightly (3.2%) more frequently than pro-surveillance terms. Despite the UK government’s pro-surveillance position (similar to and perhaps even more uncompromising than that of the US government), the Guardian‘s coverage has remained neutral overall. (Neutral as far as keyword frequency analysis goes, anyway; the use of other methods, such as qualitative analysis of article tone, may also be helpful in building a comprehensive picture.)
Our extended results provide additional context for our earlier report and demonstrate that our analysis is “capturing a meaningful divide.”
On a further note, as several commenters suggested in response to our original report, the US media’s pro-surveillance bias may be a manifestation of a broader “pro-state” bias. This theory may be correct, but it would be difficult to confirm conclusively. On many, even most, issues, the US government does not speak with one voice. Whose position should be taken as the “state” position? The opinion of the President? The Speaker of the House? The Chief Justice? Administration allies in Congress? In the context of the Affordable Care Act, is there no “pro-state” position at all, since the President, the Speaker, and the Chief Justice each have different, largely irreconcilable views?
November 1, 2013 at 11:02 am Posted in: Anonymity, Civil Rights, Culture, Current Events, Cyber Civil Rights, Government Secrecy, Politics, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized Print This Post 10 Comments
posted by Danielle Citron
I could not have timed my chat with Marvin Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power: the NSA’s PRISM program and leaked FISA court Verizon order.
Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:
[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.
Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.
The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegant synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.
Here are some highlights from our conversation:
DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?
MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?
DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?
MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.
DC: What do you think of this week’s revelations about PRISM and the Verizon order?
MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read the rest of this post »
posted by Frank Pasquale
Celebrated in the tech press only a week ago, the FTC inaction (and non-explanation of its inaction) with respect to search bias concerns is already starting to curdle. The FT ran a front page headline titled “Europe Takes Tough Stance on Google.” Another story included this striking comment from the EU’s competition chief:
Almunia insists that the Federal Trade Commission decision will be “neither an obstacle [for the European Commission] nor an advantage [for Google]. You can also think, well, this European authority, the commission, has received a gift from the American authorities, given that now every result they will get will be much better than the conclusions of the FTC,” he said with playful confidence. “Google people know very well that they need to provide results and real remedies, not arguments or comparisons with what happened on the other side [of the Atlantic].”
In response to allegations of search bias, Google has essentially said, “Trust us.” And at the end of its investigation into the potential bias, the FTC has essentially said the same. One public interest group has already put in a FOIA request for communications between Google and the FTC. Consumer Watchdog has requested a staff report that was reported to have recommended more robust action. Will Google, an advocate of openness in government and the internet generally, hold firm to its professed principles and commend those requests?
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posted by UCLA Law Review
Volume 60, Discourse
|The Benefits of a Big Tent: Opening Up Government in Developing Countries||Jeremy Weinstein & Joshua Goldstein||38|
|The Case Against Tamanaha’s Motel 6 Model of Legal Education||Jay Sterling Silver||52|
posted by UCLA Law Review
Volume 59, Discourse
|The New Ambiguity of “Open Government”||Harlan Yu & David G. Robinson||178|
|Defusing Implicit Bias||Jonathan Feingold & Karen Lorang||210|
|Another Heller Conundrum: Is It a Fourth Amendment “Exigent Circumstance” to Keep a Legal Firearm in Your Home?||John D. Castiglione||230|
posted by Frank Pasquale
Corporations are fighting disclosure requirements in many fields. Two notable fronts have recently opened in health care:
Under a new law, doctors in Pennsylvania can access information about chemicals used in natural gas extraction—but they won’t be able to share it with their patients. . . .Pennsylvania law states that companies must disclose the identity and amount of any chemicals used in fracking fluids to any health professional that requests that information in order to diagnosis or treat a patient that may have been exposed to a hazardous chemical. But the provision in the new bill requires those health professionals to sign a confidentiality agreement stating that they will not disclose that information to anyone else—not even the person they’re trying to treat.
Protection of property rights uber alles appears to be the guiding principle here. If only the doctors wanted to market drugs, maybe their free speech rights would trump the frackers’ trade secrecy privileges.
The Food and Drug Administration Reform Act of 2012, H.R.5651 . . . would keep potentially important health and safety information away from the public. Section 812 would, according to a letter to leaders of the House Oversight and Government Reform Committee penned by several [advocacy] groups, deny the public access to information relating to drugs obtained by the U.S. Food and Drug Administration (FDA) from any government agency — local, state, federal, or foreign — if that agency has requested that the information be kept confidential.
posted by Derek Bambauer
It may seem strange in a week where Megaupload’s owners were arrested and SOPA / PROTECT IP went under, but cybersecurity is the most important Internet issue out there. Examples? Chinese corporate espionage. Cyberweapons like Stuxnet. Anonymous DDOSing everyone from the Department of Justice to the RIAA. The Net is full of holes, and there are a lot of folks expert in slipping through them.
I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, there was recent panic that a water pump burnout in Illinois was the work of cyberterrorists. It turned out that it was actually the work of a contractor for the utility who happened to be vacationing in Russia. (This is what you get for actually answering your pager.)
The “too little” problem can be described via two examples. First, prior to the attacks of September 11, 2001, the government had information about some of the hijackers, but was impeded by lack of information-sharing and by IT systems that made such sharing difficult. Second, denial of service attacks prevent Internet users from reaching sites they seek – a tactic perfected by Anonymous. The problem is the same: needed information is unavailable. I think the solution, as described in Conundrum, is:
increasing the inefficiency with which information is stored. The positive aspects of both access to and alteration of data emphasize the need to ensure that authorized users can reach, and modify, information. This is more likely to occur when users can reach data at multiple locations, both because it increases attackers’ difficulty in blocking their attempts, and because it provides fallback options if a given copy is not available. In short, data should reside in many places.
But there is also the “too much” problem. This is exemplified by the water pump fiasco: after 9/11, the federal government, including the Department of Homeland Security, began a massive information-sharing effort, such as through Fusion Centers. The difficulty is that the Fusion Centers, and other DHS projects, are simply firehosing information onto companies who constitute “critical infrastructure.” Much of this information is repetitive or simply wrong – as with the water pump report. Bad information can be worse than none at all: it distracts critical infrastructure operators, breeds mistrust, and consumes scarce security resources. The pendulum has swung too far the other way: from undersharing to oversharing. Finding the “just right” solution is impossible; this is a dynamic environment with constantly changing threats. But the government hasn’t yet made the effort to synthesize and analyze information before sounding the alarm. It must, or we will pay the price of either false alarms, or missed ones.
(A side note: I don’t put much stock in which federal agency takes the lead on cybersecurity – there are proposals for the Department of Defense, or the Department of Energy, among others – but why has the Obama administration delegated responsibility to DHS? Having the TSA set Internet policy hardly seems sensible. Beware of Web-based snow globes!)
Cross-posted at Info/Law.
posted by Frank Pasquale
Slate writer Raymond Vasvari recently observed that, “for every uplifting paragraph” of precedent vindicating rights to protest, there are a “thousand cases bending an abstract right to the prosaic realities of protest.” We may never learn the extent to which Occupy Wall Street protesters were classified “enemies within,” and subject to coordinated intergovernmental suppression. But we can observe, with professors Ackerman and Benkler, that the “irony of free speech” is reaching a breaking point:
Whatever else it accomplishes, Occupy Wall Street is revealing distortions in our current understanding of the First Amendment. In recent decisions, the Supreme Court has protected Wall Street’s constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn’t an obstacle when it comes to silencing the Occupiers. . . .
Instead of hiding behind obsolete court decisions, big city mayors must recognize that they are on the constitutional front-line. Michael Bloomberg is failing this test when he keeps Occupiers out of New York’s public parks and tolerates the arrests of dozens of protesters, providing an example for similar actions in Boston, Denver, and San Diego. In contrast, Antonio Villaraigoso is showing that leadership on behalf of the First Amendment is well within the realm of the politically possible. Los Angeles has not only avoided arrests, but seems to be expanding available public space as the protest swells. Similarly, the U.S. Parks police are on the right track in giving the demonstrators a four month extension on Freedom Plaza.
How to explain Mayor Bloomberg’s deviance from constitutional ideals? Maybe he’s one of the worried wealthy, realizing that he can only afford another 170 of his trademark $100 million dollar political campaigns with his fortune of $17 billion. Ensconced in an alternate reality of privilege, Bloomberg retails stories of struggling and put-upon banks. It is his very plutocratic disconnection from the daily life of his subjects that makes an extraordinary protest like OWS necessary.
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posted by Jeffrey Kahn
It’s great to be back at Concurring Opinions (and thanks to Danielle for the generous (re)introduction last week). This month, I plan to blog on a few ongoing projects and some upcoming news events. Here are two topics soon to come, with two more after the break.
(1) Spies. Immigration authorities seize a suspected spy in Manhattan on the grounds that he entered the country unlawfully. Rather than process him through the immigration system, or transfer him to the criminal justice system, he is secretly flown more than a thousand miles away, interrogated without a lawyer, and kept virtually incommunicado for almost seven weeks in a government facility on the Texas-Mexican border. When he doesn’t break, he is transferred back to New York to be tried in federal court for a capital offense. The evidence from his warrantless arrest and secret detention helps to convict him.
When did this happen?
No surprise that the story resonates with our national security debates today. But it all happened during the Eisenhower Administration. Rudolf Abel was the top Soviet spy in North America before he was convicted of atomic espionage. Thanks to his lawyer, his life was spared (and he was later exchanged for U-2 pilot Francis Gary Powers). I think that there are lessons to be learned from this history today, but mine seems to be the minority view.
(2) Lies. Okay, not lies exactly, but pretext. (You try rhyming pretext with anything. You’ll wind up perplexed, if not vexed, with the text that comes next.) Pretextual use of the law is all around us. The most common example is the law governing arrests. In Whren v. United States, the Supreme Court unanimously agreed that the police were free to do “under the guise of enforcing the traffic code what they would like to do for different reasons,” namely, stop and search Whren’s car for drugs. Abel’s case (referenced in Whren) presented another classic instance of pretext: his detention for an immigration violation was used for the unintended purpose of counterespionage, neatly skirting in the process constitutional protections against warrantless searches and seizures, not to mention official disappearances. When Abel’s able lawyer argued pretext, however, the Supreme Court sustained the conviction.
Sometimes the law abhors pretext. For example, in Kelo v. City of New London, the Supreme Court categorically rejected the idea that the state may take property under the pretext of a public purpose. How should citizens regard the pretextual use of the law by state officials? Does such use tend to weaken the rule of law in ways that should matter to us as individuals or as a society? When tempted to use a law for an unintended purpose, how should the “good” official distinguish an innovative pretextual use from a destructive one? The Supreme Court dodged these questions just last term in Ashcroft v. Al-Kidd and I’d like to think hard about why.
posted by Frank Pasquale
1) food poisoning
2) systemic risk in the financial system
3) data breaches
4) violations of civil liberties
5) tax evasion
6) insider trading
In each case, we could do a lot more to stop the problem if we better tracked the actions that lead to it. An “audit trail” can enable that tracking. Decades ago, such tracking would be inordinately costly. Nowadays, it is increasingly embedded into any quality logistical system. The technologies of RFID chips, cheap imaging and data storage, and rapid search are ubiquitous. Corporations use them to track customers and products. Now public authorities need to use them to track corporations.
posted by Frank Pasquale
Three remarkable recent lobbying campaigns go beyond the normal bounds of partisan sniping over “markets vs. regulation.” They threaten our capacity to understand how society is ordered: whom it serves, for what purposes, and at what costs. Consider these attacks on basic disclosure norms in politics and business:
1) Campaign Finance Disclosures: Regardless of ideology, almost everyone used to agree that campaign funding sources and amounts should be disclosed. 92% of Americans had that position in 2010. Justice Scalia has eloquently insisted that such disclosure laws violate no one’s rights. But thought leaders in the Republican party are now vigorously resisting disclosure, as Norm Ornstein observes:
The 2010 mid-term elections showed clearly how legal loopholes involving non-profit groups called 501(c)4s, and the failure to adopt clear regulations surrounding campaigns, can result in hundreds of millions of dollars of spending to influence campaigns that masked the identity of huge donors. In response to these realities, the Federal Communications Commission is considering requiring robust disclosure by TV stations of the major donors of political ads; the Securities and Exchange Commission is considering requiring public corporations to disclose to stockholders their spending on politics, and the White House has drafted an executive order to require companies applying for federal contracts to disclose their spending on political campaigns. . . .
Last month, Mitch McConnell [said] he views disclosure as “a cynical effort to muzzle critics of this administration and its allies in Congress.” . . . The Wall Street Journal’s full-throated support for transparency has disappeared as well; it blasted the FCC recently for considering requiring TV stations to put donors of campaign spots on the Internet . . .
2) Conflict Mineral and Extractive Industry Disclosures: One of the surprising victories for decency in the Dodd-Frank Act last year was a provision requiring certain disclosures from mining and resource extraction companies, and companies using “conflict minerals” from in or around the Congo. If you’re a consumer with preferences for certain industrial processes (say, those that don’t create incentives for rape, murder, and starvation), you want to be able to see which companies are fueling conflict and corruption and which are not. But intense corporate pressure is now delaying the rulemaking process needed to implement the disclosure provisions. According to Gerry Fay, “it is estimated that going ‘conflict free’ would cost companies just one penny per product.” But apparently that is too high a price to end corporate complicity in one of Africa’s bloodiest wars.
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May 15, 2011 at 3:32 pm Posted in: Constitutional Law, Corporate Law, Corruption, Government Secrecy, Law and Inequality, Politics, Privacy, Privacy (National Security), Technology Print This Post 15 Comments
posted by Danielle Citron
The media often assesses governmental transparency issue by issue. The Obama Administration gets an annual rating for its performance on FOIA compliance. It receives press for its invocation on the state secrets privilege. And so on. But it may be worth taking stock of the total picture. From the state secrets privilege to the proposed SHIELD Act and FOIA, the Obama Administration seems in pursuit of black box government much like its predecessor. On reflection, the Administration’s call for a more transparent government in January 2009 seems a mismatch with its actions. In this way, theory and practice don’t coincide.
The Administration has not backed away from its predecessor’s aggressive use of the state secrets privilege. According to Steven Aftergood, “there is a great deal of continuity between the Bush and Obama administrations . . . . there is no case where the Obama administration has rescinded a claim of state secrets privilege that was advanced by the Bush [administration].” The U.S. government has recently invoked the state secrets privilege in instances that appear designed to hide government screw ups rather than to protect national security. For instance, the government hopes to block evidence in a case against a contractor who duped the government into spending millions on allegedly fake counterterrorism technology. It has invoked the privilege to block a personal injury lawsuit by a CIA employee who alleged that environmental contamination in his home made his family sick. In a case inherited from the Bush administration, Obama’s Justice Department has continued to argue that classified records of eavesdropping on an Islamic charity were state secrets. Two wiretapped lawyers were awarded $20,400 each, a ruling that last week the Obama administration indicated it would appeal. ACLU Executive Director Anthony Romero laments that although the President promised to reform abuses of the state secrets privilege as a candidate, he has reneged on that promise as the President.
The Obama Administration has devoted significant energy to punishing whistle blowers. As Politico reporter Josh Gerstein explains, the Administration is “pursuing an unexpectedly aggressive legal offensive against federal workers who leak secret information to expose wrongdoing, highlight national security threats or pursue a personal agenda.” Since President Barack Obama took office, prosecutors have filed criminal charges in five cases involving unauthorized distribution of classified national security information to the media and is now considering prosecuting WikiLeaks founder Julian Assange. The U.S. government, by contrast, only brought three such cases in the preceding 40 years. Moreover, in response to the Wikileaks disclosures, the Administration has gotten behind the proposed SHIELD Act, which would amend Section 798 of the Espionage Act of 1917. The amendment would expand the kinds of information covered by the Espionage Act and enables the U.S. government to prosecute private citizens who have not worked for the government or signed a security agreement.
In a recent post, I underscored that FOIA compliance continues to disappoint. The National Security Archive recently issued its report “Glass Half Full: 2011 Knight Open Government Survey Finds Freedom of Information Change But Many Agencies Lag in Following Obama’s Openness Order.”Although the group found some progress (49 agencies took concrete action in light of the March 2010 White House memorandum instructing agencies to update all FOIA material and assess whether their FOIA resources were adequate), its results were decidedly mixed. Only 24 agencies actually updated their FOIA training materials, only 13 agencies followed its mandate, and 41 of the agencies remained inert. Of those 41 agencies, 17 could not provide concrete records showing that they had followed the memo’s instructions; two agencies withheld documents by incorrectly citing FOIA exemptions; 17 agencies were still working on the request after more than 100 business days (in violation of FOIA); and four agencies never acknowledged the team’s requests despite numerous calls and faxes. Ancient requests, as old as 18 years, “still languish in the system.” As the team reports, twelve agencies have outstanding FOIA requests older than six years.” Eric Newton, an advisor to the Knight Foundation, remarked that “at this rate, the President’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office.” At a hearing before the House Committee on Oversight and Government Reform, FOIA expert Daniel Metcalfe expressed his disappointment by the “surprising slowness and incompleteness of the Obama Administration’s new FOIA policy implementation.” Metcalfe lamented the administration’s “do as I say, not as I do mentality,” as evinced by the performance of its lead agency, the Department of Justice, whose FOIA backlog is worse than it was a year ago.
Viewed together with my co-blogger Frank Pasquale’s insights on fusion centers (see our forthcoming article) and his important forthcoming book on The Black Box Society, the Obama Administration, issue for issue, seems to support black box government, not a transparent one.
posted by Daniel Solove
I’m pleased to announce the publication of my new book, NOTHING TO HIDE: THE FALSE TRADEOFF BETWEEN PRIVACY AND SECURITY (Yale University Press, May 2011). Here’s the book jacket description:
“If you’ve got nothing to hide,” many people say, “you shouldn’t worry about government surveillance.” Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this important book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so. The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. Why can’t we have both?
In this concise and accessible book, Solove exposes the fallacies of many pro-security arguments that have skewed law and policy to favor security at the expense of privacy. Protecting privacy isn’t fatal to security measures; it merely involves adequate oversight and regulation. Solove traces the history of the privacy-security debate from the Revolution to the present day. He explains how the law protects privacy and examines concerns with new technologies. He then points out the failings of our current system and offers specific remedies. Nothing to Hide makes a powerful and compelling case for reaching a better balance between privacy and security and reveals why doing so is essential to protect our freedom and democracy.
This book grows out of an essay I wrote a few years ago about the Nothing-to-Hide Argument. The essay’s popularity surprised me and made me realize that there is a hunger out there for discussions about the arguments made in the debate between privacy and security.
The primary focus of NOTHING TO HIDE is on critiquing common pro-security arguments. I’ve given them nifty names such as the “Luddite Argument,”the “War-Powers Argument,” the “All-or-Nothing Argument,” the “Suspicionless-Searches Argument,” the “Deference Argument,” and the “Pendulum Argument,” among others. I also discuss concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.
May 3, 2011 at 12:50 pm Posted in: Articles and Books, Book Reviews, Criminal Procedure, Government Secrecy, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology Print This Post One Comment
posted by Yale Law Journal
The Yale Law Journal Online has just published the final piece of a symposium devoted to William N. Eskridge, Jr. and John Ferejohn’s remarkable new book, A Republic of Statutes: The New American Constitution. The book chronicles the development of constitutional principles derived not directly from the text of the Constitution itself but from the implementation of entrenched “superstatutes” by administrative and executive officials. The symposium essays examine both the broad contours of the theory advanced by Eskridge and Ferejohn as well as its application to particular fields of law, such as immigration, national security, and health care. Visit YLJ Online to read the full collection:
- Robert A. Katzmann, Introduction to The Yale Law Journal Online Symposium on Eskridge and Ferejohn’s A Republic of Statutes: The New American Constitution, 120 YALE L.J. ONLINE 293 (2011), http://yalelawjournal.org/2011/3/11/katzmann.html.
- Edward L. Rubin, How Statutes Interpret the Constitution, 120 YALE L.J. ONLINE 297 (2011), http://yalelawjournal.org/2011/3/14/rubin.html.
- John D. Skrentny & Micah Gell-Redman, Comprehensive Immigration Reform and the Dynamics of Statutory Entrenchment, 120 YALE L.J. ONLINE 325 (2011), http://yalelawjournal.org/3/18/skrentny-gellredman.html.
- Theodore W. Ruger, Plural Constitutionalism and the Pathologies of American Health Care, 120 YALE L.J. ONLINE 347 (2011), http://yalelawjournal.org/2011/3/21/ruger.html.
- Stephen M. Griffin, The National Security Constitution and the Bush Administration, 120 YALE L.J. ONLINE 367 (2011), http://yalelawjournal.org/2011/3/25/griffin.html.
- Mathew D. McCubbins & Daniel B. Rodriguez, Superstatutory Entrenchment: A Positive and Normative Interrogatory, 120 YALE L.J. ONLINE 387 (2011), http://yalelawjournal.org/2011/3/30/mccubbins-rodriguez.html.
posted by Danielle Citron
The U.K.’s freedom of information commissioner, Christopher Graham, recently told The Guardian that the WikiLeaks disclosures irreversibly altered the relationship between the state and public. As Graham sees it, the WikiLeaks incident makes clear that governments need to be more open and proactive, “publishing more stuff, because quite a lot of this is only exciting because we didn’t know it. . . WikiLeaks is part of the phenomenon of the online, empowered citizen . . . these are facts that aren’t going away. Government and authorities need to wise up to that.” If U.K. officials take Graham seriously (and I have no idea if they will), the public may see more of government. Whether that more in fact provides insights to empower citizens or simply gives the appearance of transparency is up for grabs.
In the U.S., few officials have called for more transparency after the release of the embassy cables. Instead, government officials have successfully pressured internet intermediaries to drop their support of WikiLeaks. According to Wired, Senator Joe Lieberman, for instance, was instrumental in persuading Amazon.com to kick WikiLeaks off its web hosting service. Senator Lieberman has suggested that Amazon, as well as Visa and and PayPal, came to their own decisions about WikiLeaks. Lieberman noted:
“While corporate entities make decisions based on their obligations to their shareholders, sometimes full consideration of those obligations requires them to act as responsible citizens. We offer our admiration and support to those companies exhibiting courage and patriotism as they face down intimidation from hackers sympathetic to WikiLeaks’ philosophy of irresponsible information dumps for the sake of damaging global relationships.”
Unlike the purely voluntary decisions that Internet intermediaries make with regard to cyber hate, see here, Amazon’s response raises serious concerns about what Seth Kreimer has called “censorship by proxy.” Kreimer’s work (as well as Derek Bambauer‘s terrific Cybersieves) explores American government’s pressure on intermediaries to “monitor or interdict otherwise unreachable Internet communications” to aid the “War on Terror.”
Legislators have also sought to ensure opacity of certain governmental information with new regulations. Proposed legislation (spearheaded by Senator Lieberman) would make it a federal crime for anyone to publish the name of U.S. intelligence source. The Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act would amend a section of the Espionage Act that forbids the publication of classified information on U.S. cryptographic secrets or overseas communications intelligence. The SHIELD Act would extend that prohibition to information on human intelligence, criminalizing the publication of information “concerning the identity of a classified source or information of an element of the intelligence community of the United States” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.
Another issue on the horizon may be the immunity afforded providers or users of interactive computer services who publish content created by others under section 230 of the Communications Decency Act. An aside: section 230 is not inconsistent with the proposed SHIELD Act as it excludes federal criminal claims from its protections. (This would not mean that website operators like Julian Assange would be strictly liable for others’ criminal acts on its services; the question would be whether a website operator’s actions violated the SHIELD Act). Now for my main point: Senator Lieberman has expressed an interest in broadening the exemptions to section 230′s immunity to require the removal of certain content, such as videos featuring Islamic extremists. Given his interest and the current concerns about security risks related to online disclosures, Senator Lieberman may find this an auspicious time to revisit section 230′s broad immunity.
January 7, 2011 at 1:25 pm Posted in: Anonymity, Architecture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Government Secrecy, Privacy (Electronic Surveillance), Privacy (National Security), Technology Print This Post 2 Comments
posted by Frank Pasquale
In an article entitled “Monitoring America,” Dana Priest and William Arkin describe an extraordinary pattern of governmental surveillance. To be sure, in the wake of the attacks of 9/11, there are important reasons to increase the government’s ability to understand threats to order. However, the persistence, replicability, and searchability of the databases now being compiled for intelligence purposes raise very difficult questions about the use and abuse of profiles, particularly in cases where health data informs the classification of individuals as threats.
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December 22, 2010 at 7:48 pm Posted in: Criminal Procedure, Cyberlaw, Google & Search Engines, Government Secrecy, Health Law, Privacy, Privacy (Electronic Surveillance), Privacy (Medical), Social Network Websites, Technology, Uncategorized Print This Post No Comments
posted by Frank Pasquale
Don’t worry, it’s not another prolix post from me, just commentary on Jack Goldsmith’s Seven Thoughts on Wikileaks and Lovink & Riemens’s Twelve theses on WikiLeaks. (And here’s an FAQ for those confused by the whole controversy.)
Goldsmith, who takes cybersecurity very seriously, nevertheless finds himself “agreeing with those who think Assange is being unduly vilified.” He believes that “it is not obvious what law he has violated,” and Geoff Stone today said that many Lieberman-inspired efforts to expand the Espionage Act to include Assange’s conduct would be unconstitutional. Goldsmith asks:
What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why?
Lovink & Riemens provide something of an answer:
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December 11, 2010 at 9:39 pm Posted in: Anonymity, Current Events, Cyber Civil Rights, First Amendment, Google & Search Engines, Government Secrecy, Privacy, Privacy (Electronic Surveillance), Privacy (National Security), Science Fiction, Wiki Print This Post 2 Comments
posted by Frank Pasquale
A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.
We began our work by holding (along with Priscilla Regan of GMU) a roundtable on fusion centers in April, 2009. Citron convened a panel on fusion centers at AALS in New Orleans. Since then, we’ve repeatedly found ourselves astonished by the pace of advances in domestic intelligence operations. In roughly reverse chronological order:
1) The Obama administration is now pushing for “Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct “peer to peer” messaging like Skype — to be technically capable of complying if served with a wiretap order.” The insistence on a “backdoor” here recalls the UAE/Saudi ban on Blackberrys—not exactly regimes the US should be emulating. Julian Sanchez and the ACLU provide more background.
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September 28, 2010 at 1:15 pm Posted in: Anonymity, Government Secrecy, Military Law, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology Print This Post No Comments
posted by Frank Pasquale
Today brings news that the “Electronic Privacy Information Center [has] filed a request under the Freedom of Information Act for documents related to any agreement between Google and the NSA” on cybersecurity and related matters. The controversy over the request reminds me of an excellent recent debate on the digital surveillance state at Cato Unbound. Glenn Greenwald leads off by documenting an array of intrusive surveillance practices:
[T]he Bush administration . . . ordered the National Security Agency to eavesdrop on American citizens without the warrants required by law and without any external oversight at all. Despite the fact that the 30-year-old FISA law made every such act of warrantless eavesdropping a felony, “punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both,” and despite the fact that all three federal judges who ruled on the program’s legality concluded that it was illegal, there was no accountability of any kind. . . .
[Medical] “files” are maintained through a 2005 law which, the Government claims, authorizes it to monitor and record all prescription drug use by all citizens via so-called “Prescription Drug Monitoring Programs.” And there is a slew of other under-discussed surveillance programs whereby the U.S. government stores vast data on our private activities: everything from every domestic telephone call we make to “risk assessment” records based on our travel activities. A bipartisan group of Senators is currently promoting mandated “biometric ID cards” for every American as a purported solution to illegal immigration.
Paul Rosenzweig responds that there are several programs internal to federal agencies designed to protect privacy, including DHS’s “statutorily required Privacy Officer” and “Officer for Civil Rights and Civil Liberties.” Julian Sanchez insists that, regardless of these formal protections, the overall architecture of communications and data storage has enabled a quantum leap in surveillance:
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September 14, 2010 at 8:33 am Posted in: Anonymity, Google & Search Engines, Government Secrecy, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security), Technology, Uncategorized Print This Post No Comments