Category: Government Secrecy

Posner
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On Free Expression & the First Amendment — More Questions for Judge Posner

 The American concept of freedom of speech poses a challenge to the pragmatist because, like ‘democracy,’ it is the repository of a great deal of unpragmatic rhetoric. It is at the heart of the American ‘civil religion,’ a term well chosen to convey the moralistic fervor in which free speech is celebrated. — Richard Posner (2003)

This is the sixth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, and the fifth one here.  

Here, as elsewhere, controversy is never far from the conceptual corner where Richard Posner lingers. Merely consider, for example, the following point he made in a 2001 article: “political free speech is not an unalloyed blessing.” Or consider his take on the most famous line from NYT v. Sullivan — he tags it (see below) “empty rhetoric.” Or think about his views on privacy and the First Amendment (see Glenn Greenwald’s criticisms below). Such comments are sure to raise skeptical eyebrows among the rah-rah First Amendment crowd.

Then again, that crowd happily hails the Judge for the robust defense of free speech he displayed in NAACP v. Button (1963), which he takes credit for authoring while he was a law clerk to Justice William Brennan. And then there are his opinions in cases such  American Amusement Machine Association v. Kendrick, the violent video game case. For staunch conservatives, such as Justice Clarence Thomas, protection of such expression “does not comport with the original public understanding of the First Amendment.” No matter, Posner paves his own path, sans any Hugo Black-like passion in defense of free speech or any Clarence Thomas-like zeal in defense of originalism.  

Of course, there is more to be said about Posner’s pragmatic approach to our free speech jurisprudence, and on that score some will approve and others not. In the tumble of it all, he remains a Maverick, which is how he likes it.  

Some of the Judge’s more notable writings on free expression can be found in the following works:

  1. Economic Analysis of Law (9th ed. 2014) (chapter 29)
  2. Not a Suicide Pact: The Constitution in a Time of a National Emergency (2009) (chapter 5)
  3. Law, Pragmatism and Democracy (2003) (chapter 10)
  4. Frontiers of Legal Theory (2001) (chapter 2)
  5. The Speech Market and the Legacy of Schenck,” in Lee Bollinger & Geoffrey Stone, eds., Eternally Vigilant: Free Speech in the Modern Era 121 (2002)
  6. Pragmatism versus Purposivism in First Amendment Analysis,” 54 Stanford Law Review 737 (2002)
  7. Free Speech in an Economic Perspective,” 20 Suffolk University Law Review 1 (1986)

For a sampling of his First Amendment opinions, go here and search “First Amendment.”

Below are some questions, on the topic of free expression and the First Amendment, that I posed to the Judge followed by his replies. (Note: Some links will only open in Firefox or Chrome.)

NB: A segment of this post, quoting a well-known journalist, has been temporarily omitted because of a strong objection. I will explain why in this Monday’s post.      

Question: Is speech overprotected by our courts and in our culture?

Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels.

Question: Though the Pentagon Papers Case (1971) is much celebrated in First Amendment circles, you seem to think that the Court might have gone too far. Two questions:

  1. What is your criticism of the case?
  2. Does over classification of national security information raise a a First Amendment issue?

Posner:

  1. I don’t think there is a right to read classified material. National security classification is one of many sensible exceptions to freedom of speech, along with threats, trade secrets, defamation, distribution of child pornography, lawful wiretapping and other lawful searches for communicative material, copyright infringement, and much else.
  2. It could, if there were no security justification.

Question: The so-called “war on terrorism” is unlike the Great Wars in that the enemy is ever changing and even hard to identify and the duration of the conflict is indeterminate. How does this affect the calculus of free speech “in wartime”?

Posner: I don’t see why the nature of the military conflict should make a difference.

Question: You have written that “some restrictions on speech actually promote speech.” That general idea seems to be getting some traction among egalitarian-minded liberal scholars dissatisfied with certain tenets of current free speech doctrine. Can you say more about your thinking here, especially as it might apply to the liberal defense of speech restrictions?

Posner: An obvious example is copyright protection, which restricts speech (the speech of copiers) but promotes speech overall by granting legal protection to original speech. Another obvious example is restricting the number of speakers in a political debate so that the debate won’t degenerate into an unintelligible babble of interruptions. Similarly one doesn’t want to allow the use of threats to silence people. A subtle example is the censorship of the Elizabethan theatre, which may well have promoted creativity by forcing playwrights like Shakespeare to situate contemporary problems in exotic times and places, in order to get by the censor.

Question: You pride yourself on being a “balancer,” as one who compares the social pluses and minuses of restrictions on free speech. Can you be an effective balancer absent a reliable record of the actual or even conjectural harms and benefits of speech? And what if the lawyers, as if often the case, tender no reliable empirical evidence one way or the other? Who wins, where is the conceptual default? Or must the reviewing court do its own research to resolve the question?

Posner: I don’t know how much empirical work has been done on the subject. In its absence, there is just guesswork, although the basic structure of American free speech law seems okay. Some of it strikes me as silly, notably granting rights of free speech to school kids.

[RKLC: 12-12-14: See William Baude’s commentary here.]

Question: Whatever its shortcomings, one of the benefits of a category-based approach to free speech (combined with certain tailoring tools, e.g., overbreath, etc.), is judicial efficiency. The rules are not unworkably open-ended and subjective, and are therefore relatively manageable for judges and lawyers alike.

  1. Mindful of that, how judicially efficient is your economic-based approach with its assorted variables? – e.g., taking into account and balancing the relevant benefits (B), harms (H), offensiveness (O), probability (P), the number of years between when speech occurs and when the harm is likely to materialize, and the administrative costs of a regulation (A).
  2. What about lawmakers, the focus of the First Amendment (Congress shall make no law . . . )? How likely are they to engage in such sophisticated cost-benefit analysis? Is your proposed approach a realistic test for them to employ in considering the constitutionality of proposed laws affecting speech?

Posner:

  1. One can hardly exclude offensiveness, other harms, probability of harm, remoteness of harm, etc. from consideration, any more than you can do that in an ordinary tort case.
  2. Do lawmakers ever do sophisticated cost-benefit analysis?

Question: In cases such as Holder v. Humanitarian Law Project (2010), is the purported harm so great as to preclude any meaningful balancing? It was precisely that concern that prompted Justice Stephen Breyer to complain in dissent: “I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion.”

How would you weigh in on this? By your standards, was Holder a case of failed balancing?

Judge Learned Hand

Judge Learned Hand

Posner: I haven’t read the case.

Question: You have expressed some conceptual approval of Judge Learned Hand’s opinion in United States v. Dennis (1950) in which he upheld the convictions of eleven Communist Party leaders for violating the Smith Act. Do you agree with the judgment in that case? Please say a few words about why you agree or disagree with the Dennis judgment.

Posner: Hand’s formula in Dennis is I think fine—it is a variant of the famous Hand negligence formula from his opinion in Carroll Towing. The Communist Party leaders were essentially agents of the Soviet Union, so I don’t see why their speech should be thought privileged by the First Amendment.

Question: Don’t phrases like “clear and present danger” (which, by the way, was used by the attorney Benjamin W. Shaw in 1918) invite, as Paul Freund suggested in 1949, a kind of mantra-like application devoid of the kind of realist and pragmatic balancing you endorse?

Posner:  It’s a dumb phrase. A murky remote danger could be very great.

Question: Based on what you know in light of the book you edited on Holmes, did he get the judgments right in Schenck, Frohwerk and Debs?

Posner: Probably not in Schenck or Debs; I don’t recall Frohwerk.

Question: “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .”

Do you consider those lines from New York Times Co. v. Sullivan (1964) to be “unpragmatic rhetoric”?

Posner: Empty rhetoric.

 Question: The Rehnquist and Roberts Courts have said relatively little about textualism when it comes to free speech and press issues. Why do you suppose that is?

Posner: There is no text. “Freedom of speech” is a heading, not a test.

Chief Justice John Roberts

Chief Justice John Roberts

Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?

Posner: Very nice for fat cats and enemies of abortion.

Question: You have long been on record as being a critic of the Court’s decision in Buckley v. Valeo (1976). You maintain that the “American system of campaign financing is extremely porous and is widely and probably correctly believed to constitute a thinly disguised system of quasi-bribes of elected officials; at the very least it tilts the playing field very steeply toward the wealthy and the well organized . . . .” Given that, how bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)?

Posner: Very bad.

Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified

Posner: [The idea of a constitutional amendment is] a waste of time.

Posner on Roberts

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. [Source here]

Question: In his dissent in McCutcheon v. FEC (2014), Justice Breyer declared: “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” What is you view on this idea “collective speech” and the First Amendment?

Posner: A little high-falutin’ for my taste. I would just say that large corporations and wealthy people shouldn’t be allowed to buy elections.

Question: Despite your criticisms of Buckley and its progeny, you have also expressed serious doubts about campaign finance reform proposals. Please explain why you think such efforts are problematic.

Posner: Have I? I don’t recall

Question: In Frontiers of Legal Theory you wrote: “Individuals or groups that have more money than the average amount of money have always had more than the average ability to spend money on trying to influence public opinion. We do not consider such inequality a compelling reason for limiting free speech.” Do you still believe that?

Posner: The mere fact of inequality is not critical. And it would be very difficult for a new candidate to get launched without access to substantial donors. The problems are the concealment of the identity of big donors, the implicit quid pro quo (donor is buying influence, and donee who is not influenced is unlikely to obtain substantial future donations), and the failure to place some ceiling on the amount of donations that a particular individual should be free to make. And I doubt that companies as distinct from individuals should be permitted to make campaign contributions.

Question: As you know, the speech in question in Citizens United involved a political documentary titled Hillary: The Movie. A conservative non-profit group sought to air it within 30 days of the primary. During oral arguments in the case, the question was asked: “What if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the Internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.”

 How would you answer that question? Is it your position that showing that political documentary and/or publishing a book on it during an election is not protected speech under the First Amendment?

Posner: The question is the scope of protection. I don’t think the First Amendment should be interpreted to prevent government from limiting the amount of broadcasting (or equivalent, like movies) in the last few weeks before a national election.

Question: What is your view of the secondary effects doctrine as it has been applied by the Court and lower courts since its use in Renton v. Playtime Theatres, Inc. (1986) and then again in Barnes v. Glen Theatre (1991), which overruled an opinion that you authored. In 1988, your former boss, Justice William Brennan, warned that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.” Do you agree? Where do you stand on this matter?

Posner: I don’t think there’s anything wrong with it if it is supported by real evidence, though I think it was misapplied in the Barnes case because there wasn’t any evidence that nude dancing promotes crime to any significant extent.

The next installment, the seventh, in the Posner on Posner series was scheduled to be “On Judicial Reputation.” It will now be preceded by a special post on free speech and privacy.  

Interview on The Black Box Society

BBSBalkinization just published an interview on my forthcoming book, The Black Box Society. Law profs may be interested in our dialogue on methodology—particularly, what the unique role of the legal scholar is in the midst of increasing academic specialization. I’ve tried to surface several strands of inspiration for the book.

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James Risen and the reporter’s privilege status quo

Many thanks to Danielle, Frank, and the Concurring Opinions crew for inviting me to guest blog this month. As Danielle mentioned, I’m primarily an IP and media law guy, and I anticipate blogging about things like Aereo, trolls, and the future of newsgathering. (Like Harry, I can be found commenting on lots of other things @bradagreenberg.) I start today with a reporter’s ability to protect the identity of confidential sources…

This week the Supreme Court denied the petition of New York Times investigative reporter James Risen. For years, Risen has fought government efforts to compel disclosure of whether a former CIA official was Risen’s source for a story about a botched CIA plot to infiltrate Iran’s nuclear agency. Risen included this confidential information in his 2006 best-selling book State of War. The former CIA official is being prosecuted for leaking to Risen, and, last July, the Fourth Circuit ruled that Risen must testify at the trial. In a last gasp, Risen petitioned the Supreme Court, asking whether  journalists in a federal criminal trial have a qualified constitutional privilege against revealing confidential sources or should have a common law privilege under Federal Rule of Evidence 501.

The Court having declined to answer this question, Risen now faces testifying or being held in contempt. (Or he must throw himself on the “hinted” mercy of the Justice Department.) This is a great tragedy for a great journalist. But it is not necessarily a great tragedy for great journalism.

Risen’s appeal was a case of Be Careful What You Wish For.

At the core of Risen’s protest is the often-mistaken belief that reporters cannot be compelled to disclose their confidential sources. The Supreme Court first addressed this question forty-two years ago in Branzburg v. Hayes, in which the Court effectively split 4-1-4 on whether journalists had a constitutional privilege against compelled disclosure. The majority opinion held that journalists do not.

But Branzburg did not foreclose such protections. State courts have long shielded media from compelled disclosure, with forty-nine states and the District of Columbia offer varying statutory or common law protections. And Justice Powell’s concurrence suggested that journalists might have a constitutional privilege on different facts, particularly if the subpoena had not been issued by a grand jury. Since then, the circuit courts have recognized a variety of protections: “nine circuits have acknowledged, and only the Sixth Circuit has rejected, a qualified privilege for confidential information in civil cases, and … four circuits extend the privilege in criminal cases and some over non-confidential information in civil cases.” (That’s from this essay about the flawed Free Flow of Information Act of 2013; the federal media shield folly was also mentioned in my previous guest visit.) The result has been that journalists get different levels of protection in different jurisdictions—but in most jurisdictions they get some protection.

Had the Supreme Court agreed to hear Risen’s petition, it is likely that there would be uniformity regarding compelled disclosure of journalists’ confidential info. (It is unclear whether that uniformity would have been limited to confidential sources or would have extended to nonconfidential notes, unused materials, journalist observations, etc.) That uniformity could have increased protections and thereby decreased disincentives to sharing sensitive or confidential information.

Yet, in many circuits the uniformity might cut the other way, restating Branzburg in a manner that results in a weaker media shield. In fact, this seems more likely. In a post-legacy-media era in which people do journalism but aren’t necessarily journalists, legislators and judges have found it so difficult to determine to whom a reporter’s privilege should apply. (The debate over the federal media shield bill is paradigmatic. See n.5.) In this context, it is unlikely the Supreme Court would be willing to establish a broad reporter’s privilege—and in a national security case, for that matter.

Of course, just because the government can compel Risen to testify, does not mean that it should. The spirit of the First Amendment suggests otherwise…

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A Time for Action: The Double Gain of Freer Regions and the Double Speak about Talent Droughts

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.

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On the NSA and Media Bias: An Extended Analysis

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?

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Interview with Marvin Kalb: The Road to War, Presidential Commitments Honored and Betrayed

I could not have timed my chat with Marvin Kalb220px-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 elegantseg3_ssa_3 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 More

“Kicking the Tires” is not “Looking Under the Hood”

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?
Read More

War on Disclosure: Recent Fronts in Health Care

Corporations are fighting disclosure requirements in many fields.  Two notable fronts have recently opened in health care:

1) Fracking has been controversial in part because secret chemicals may end up compromising water supplies.  Pennsylvania has now limited doctors’ ability to speak about their concerns:

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.

2) FDA User-Fee Bills recently approved by the House and Senate could seriously limit access to data about drugs.  The House bill is particularly worrisome:

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.

If that House provision survives the conference committee, there will be troubling implications for US patients and research subjects abroad.