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From The American Thinker:
July 31, 2010
Redundant by Practice, Not by Design
By Jerry Shenk
The United States Constitution made Congress one of three branches of the American system of government with specific, enumerated responsibilities.
Recent history in that body has blurred constitutional distinctions and, in some ways, virtually undone the intent of the Founders.
At minimum, elected representatives owe constituents their judgment. It is unacceptable that the only judgment many in Congress have applied to legislation is that they need not read bills before voting on them. This shows very poor judgment, indeed, but it is typical of members who allow and even encourage unknown and unaccountable staff members and lobbyists to write and review legislation and, occasionally, broker their votes.
Congressional Democrats, most of whom voted for the Stimulus Bill, are rattled by the failure of their massive bill to provide jobs. Only those Democrats who didn't read the bill (i.e., all of them) are surprised.
America has lost millions of jobs since the stimulus was passed, many of them from the trades they promised would be stimulated by the bill. Instead, the bill rolled back welfare reform as we know it, papered over the failures of progressive governance in states and municipalities and rewarded dozens of Democratic interest groups at the expense of current and future generations of American taxpayers. The Democrats may pay a steep price for their malfeasance in November.
A recent Rasmussen Reports survey revealed that a full three quarters of Americans blame the unwillingness of politicians to reduce government spending for current budget crises. Democrats' default strategy to win votes has always been to spend money to give voters and donors more goodies, but with public criticism of what they've already done, another huge stimulus is a non-starter politically. They know it, but want one anyway.
What's the Democrats' solution? Hoping that no one will notice, they have been enacting a lot of new, smaller spending bills that cumulatively may add as much or more to the federal budget deficit. The payoff, or payback, will come in November, 2010.
Ironically, the same members of Congress who assign their own responsibilities to staffers defend earmarks in pork-laden bills by telling us that members themselves have a better understanding of the "needs" in their districts than do "young, nameless, faceless bureaucrats" in the Executive Branch agencies their appropriations bills are meant to fund.
Members of Congress never tell us how many of those "nameless, faceless bureaucrats" are unneeded now that members are doing their jobs for them. In fact, the rosters of federal agency employees represent the only significant growing employment segment in America. Nor do members suggest that they, themselves, may be expendable when they delegate their own constitutional responsibilities to subordinates and proxies.
Such double standards, driven by self-interest, laziness and a sense of entitlement, are common among career politicians. These double standards are as present in state capitals as they are in Washington. Because many in state governments aspire to and seek national office, we should not be surprised that promoting them only brings to the nation's capital the same attitudes and habits they developed in their states.
Members of Congress are legislators. They are elected to legislate. It's their only job. If members don't read a bill before voting to make it law, they are not doing the only job they have. If they don't allow the time or have the intelligence to do it properly, they don't deserve their offices.
Members whose senses of importance and entitlement allow them to neglect their responsibilities ultimately delegitimize Congress, cheat their constituents and produce very bad legislation.
Those who think this is the way government is supposed to work in America have no business being in government.
It's been suggested that members of Congress could balance the budget if they sold beer and snacks to the media every time one of them stepped in front of a camera or a microphone to take credit for someone else's work using someone else's money or to spin the awful outcomes of those practices. But most Americans would rather they reduced spending instead.
Jerry Shenk is a retired sales and marketing professional living in Central Pennsylvania. He is co-editor of the Rebuilding America, Federalist Papers 2© website - www.frankryan.org.
Saturday, July 31, 2010
On the Question Of Birthright Citizenship
From The American Thinker:
July 31, 2010
The question of 'Birthright Citizenship'
Cindy Simpson
In a recent interview with Greta Van Susteren on Fox News, Sen. Lindsey Graham, the co-author of a proposed Immigration Reform package, surprised many with his statements on "anchor babies."
Graham said: "Birthright citizenship I think is a mistake...We should change our Constitution and say if you come here illegally and you have a child, that child's automatically not a citizen."
Although Graham talked about "changing" the Constitution to outlaw the practice, many experts say the Constitution as written, does not authorize birthright citizenship in the first place.
American Thinker reported on this issue a couple of months ago in the article: "A Hole in the Fence of Immigration Reform." The article quoted Mark Cromer's essay, "American Jackpot: The Remaking of America by Birthright Citizenship:"
According to [Constitutional expert Dr. John] Eastman, the real shift in popular perception began to take root in the late 1960s, when the idea that mere birth on American soil alone ensured citizen status. "I have challenged every person who has taken the opposite position to tell me what it was that led to this new notion," he said. "There's not an executive order. There's not a court decision. We just gradually started assuming that birth was enough."
Eastman attributes some of it to our nation's loss of an intrinsic understanding of the language that the framers of the 14th Amendment spoke and used in that era, ergo a century later the phrase "subject to the jurisdiction" has been watered down in the collective American consciousness to require little more than an adherence to traffic safety laws.
The AT article further noted:
Another important consideration in any sort of "guest" or "temporary" worker program is the children born to these workers while in America. If these children receive automatic citizenship, the unintended consequence of such a program could be the addition of millions more permanent citizens and, by extension, their families.
George Will, in his March 2010 essay on the subject, opined: "A simple reform would drain some scalding steam from immigration arguments that may soon again be at a roiling boil."
Graham, in the midst of the Arizona controversy, has just turned up the temperature.
Posted at 08:49 AM
July 31, 2010
The question of 'Birthright Citizenship'
Cindy Simpson
In a recent interview with Greta Van Susteren on Fox News, Sen. Lindsey Graham, the co-author of a proposed Immigration Reform package, surprised many with his statements on "anchor babies."
Graham said: "Birthright citizenship I think is a mistake...We should change our Constitution and say if you come here illegally and you have a child, that child's automatically not a citizen."
Although Graham talked about "changing" the Constitution to outlaw the practice, many experts say the Constitution as written, does not authorize birthright citizenship in the first place.
American Thinker reported on this issue a couple of months ago in the article: "A Hole in the Fence of Immigration Reform." The article quoted Mark Cromer's essay, "American Jackpot: The Remaking of America by Birthright Citizenship:"
According to [Constitutional expert Dr. John] Eastman, the real shift in popular perception began to take root in the late 1960s, when the idea that mere birth on American soil alone ensured citizen status. "I have challenged every person who has taken the opposite position to tell me what it was that led to this new notion," he said. "There's not an executive order. There's not a court decision. We just gradually started assuming that birth was enough."
Eastman attributes some of it to our nation's loss of an intrinsic understanding of the language that the framers of the 14th Amendment spoke and used in that era, ergo a century later the phrase "subject to the jurisdiction" has been watered down in the collective American consciousness to require little more than an adherence to traffic safety laws.
The AT article further noted:
Another important consideration in any sort of "guest" or "temporary" worker program is the children born to these workers while in America. If these children receive automatic citizenship, the unintended consequence of such a program could be the addition of millions more permanent citizens and, by extension, their families.
George Will, in his March 2010 essay on the subject, opined: "A simple reform would drain some scalding steam from immigration arguments that may soon again be at a roiling boil."
Graham, in the midst of the Arizona controversy, has just turned up the temperature.
Posted at 08:49 AM
The Liberal Elite's Bogus Appeal To Authority
From The American Thinker:
July 31, 2010
The elite's bogus appeal to 'authority'
Tom Rowan
One of the ruling class's favorite propaganda points is that they are smart and if you disagree with them you, in fact, are dumb.
Historian Paul Johnson pointed out the liberal ruling class's penchant for self puffery when he wrote Intellectuals. To give you an idea of where Johnson was going, chapter 1 is titled - Jean-Jacques Rousseau; ‘An Interesting Madman.'
In the book Intellectuals and Society, Thomas Sowell exposes the "intellectual" ruling class who, as National Review put it, "Exalt themselves by denigrating our society - and are working to destroy it."
The fabrication of this worldview, i.e., that liberals are the smartest, best and the brightest, and above reproach, has been the underlying template for how we are to view our world. Just ask any liberal.
Liberals are self described authorities on everything. Persuasive speech writing technique implores that the speech giver make an "appeal to authority" to persuade his audience. This is why Algore tells his audience that they don't have to take his word for it, just ask the experts. Ask the scientists, they are the authorities!
Wattupswiththat science blog has a hilarious must see take on this appeal to "authority."
The "top nine authoritative science phrases in print media" are: science tells us we should, science requires, science dictates, science compels, science commands; science says we should, science tells us we must, and science says that we must. The print media makes science out to be a dictatorial prima donna or spoiled child actor.
This technique is used by Obama relentlessly. He implores us that "most leading economists" agree with him on everything. The only problem with that theory is that economists like Keynes are never held into account for their disastrous prescriptions. Algore can tell us that he invented the internet, was the original muse for Love Story, and that he is not bound by any "controlling legal authority" yet he is to be given a pass by the media. Being part of the ruling class means never having to say you are sorry or having to be proved to right about anything.
This false bubble of superiority helps explain why Thomas Friedman and Paul Krugman are highlighted by the left. They are considered "authorities" and therefore are above criticism from the unwashed masses. This helps explain how these two blistering imbeciles can be so wrong on just about everything and still be taken seriously by polite "ruling class" society.
This also helps to explain the left's hysterics over Sarah Palin, Rush Limbaugh, and Ronald Reagan. Most Americans agree with the political worldview of these conservatives and that definitely does not fit the template of "smart liberal vs dumb conservative."
Palin, Limbaugh, and Reagan are to be mocked as less than intelligent. The left's assault on Palin is not in the battle of ideas, where the left always loses; it is on her appearance and her propagandized lack of intellect. Limbaugh was once again correct in his analysis of the Gulf oil spill. Time magazine's putrid Michael Grunwald gave credit to Rush by noting that the "obnoxious and anti-environmentalist" Rush Limbaugh was right. And who can forget the "amiable dunce" president we had who defeated the Soviet Union and created the largest peacetime economic expansion in the history of mankind?
Who is "smarter" on just about every issue we face today? Who is right on the issues and who is demonstrably wrong on the issues - Palin or Obama? I rest my case.
More and more, Americans are waking up to the ruling class liberal elite's penchant for being wrong about everything. On every issue the liberals have it wrong; from job creation to the size and scope of government, from tax cuts to budget cuts, and from common sense to the nonsensical and even absurd.
All this helps to explain why liberals are perplexed that Obama is not getting credit for all that he has done. Why are his job approval ratings plummeting? Could it be "messaging" or "branding?" Do the wizards of smart need to tweak the propaganda noise machine? Could it be that Obama has not sufficiently explained it all to the clueless rubes whose votes he needs? Does he need to speak more slowly to them to make them understand?
Does Obama need more appearances on "The View" to help mold our own worldviews?
But then again, what do we know? We are merely conservatives.
Posted at 09:14 AM
July 31, 2010
The elite's bogus appeal to 'authority'
Tom Rowan
One of the ruling class's favorite propaganda points is that they are smart and if you disagree with them you, in fact, are dumb.
Historian Paul Johnson pointed out the liberal ruling class's penchant for self puffery when he wrote Intellectuals. To give you an idea of where Johnson was going, chapter 1 is titled - Jean-Jacques Rousseau; ‘An Interesting Madman.'
In the book Intellectuals and Society, Thomas Sowell exposes the "intellectual" ruling class who, as National Review put it, "Exalt themselves by denigrating our society - and are working to destroy it."
The fabrication of this worldview, i.e., that liberals are the smartest, best and the brightest, and above reproach, has been the underlying template for how we are to view our world. Just ask any liberal.
Liberals are self described authorities on everything. Persuasive speech writing technique implores that the speech giver make an "appeal to authority" to persuade his audience. This is why Algore tells his audience that they don't have to take his word for it, just ask the experts. Ask the scientists, they are the authorities!
Wattupswiththat science blog has a hilarious must see take on this appeal to "authority."
The "top nine authoritative science phrases in print media" are: science tells us we should, science requires, science dictates, science compels, science commands; science says we should, science tells us we must, and science says that we must. The print media makes science out to be a dictatorial prima donna or spoiled child actor.
This technique is used by Obama relentlessly. He implores us that "most leading economists" agree with him on everything. The only problem with that theory is that economists like Keynes are never held into account for their disastrous prescriptions. Algore can tell us that he invented the internet, was the original muse for Love Story, and that he is not bound by any "controlling legal authority" yet he is to be given a pass by the media. Being part of the ruling class means never having to say you are sorry or having to be proved to right about anything.
This false bubble of superiority helps explain why Thomas Friedman and Paul Krugman are highlighted by the left. They are considered "authorities" and therefore are above criticism from the unwashed masses. This helps explain how these two blistering imbeciles can be so wrong on just about everything and still be taken seriously by polite "ruling class" society.
This also helps to explain the left's hysterics over Sarah Palin, Rush Limbaugh, and Ronald Reagan. Most Americans agree with the political worldview of these conservatives and that definitely does not fit the template of "smart liberal vs dumb conservative."
Palin, Limbaugh, and Reagan are to be mocked as less than intelligent. The left's assault on Palin is not in the battle of ideas, where the left always loses; it is on her appearance and her propagandized lack of intellect. Limbaugh was once again correct in his analysis of the Gulf oil spill. Time magazine's putrid Michael Grunwald gave credit to Rush by noting that the "obnoxious and anti-environmentalist" Rush Limbaugh was right. And who can forget the "amiable dunce" president we had who defeated the Soviet Union and created the largest peacetime economic expansion in the history of mankind?
Who is "smarter" on just about every issue we face today? Who is right on the issues and who is demonstrably wrong on the issues - Palin or Obama? I rest my case.
More and more, Americans are waking up to the ruling class liberal elite's penchant for being wrong about everything. On every issue the liberals have it wrong; from job creation to the size and scope of government, from tax cuts to budget cuts, and from common sense to the nonsensical and even absurd.
All this helps to explain why liberals are perplexed that Obama is not getting credit for all that he has done. Why are his job approval ratings plummeting? Could it be "messaging" or "branding?" Do the wizards of smart need to tweak the propaganda noise machine? Could it be that Obama has not sufficiently explained it all to the clueless rubes whose votes he needs? Does he need to speak more slowly to them to make them understand?
Does Obama need more appearances on "The View" to help mold our own worldviews?
But then again, what do we know? We are merely conservatives.
Posted at 09:14 AM
Judge Andrew Napolitano: Arizona Law Is Un-Constitutional
from Below The Beltway:
Judge Andrew Napolitano: Arizona Immigration Law Is Unconstitutionalby Doug Mataconis @ 3:35 pm on July 31, 2010. Filed under History, Immigration, Individual Liberty, Politics
This is from a few weeks ago, but it’s spot-on:
Judge Andrew Napolitano: Arizona Immigration Law Is Unconstitutionalby Doug Mataconis @ 3:35 pm on July 31, 2010. Filed under History, Immigration, Individual Liberty, Politics
This is from a few weeks ago, but it’s spot-on:
Friday, July 30, 2010
Why The Electoral College Matters
from The American Thinker:
July 30, 2010
Why the Electoral College Matters
By Rick Moran
It's been called "undemocratic," "a relic," and worse. Every fifty years or so, a movement gets underway to eviscerate or eliminate it -- one of the creakiest compromises that emerged from our Constitutional Convention in 1788.
I refer to the Electoral College -- that inelegant, less-than-perfect, but ultimately useful device by which we actually elect our presidents. Over the years, more than thirty constitutional amendments have been introduced in Congress to gut the college or eliminate it entirely. None have ever passed the legislature and been sent to the states for ratification.
A few states have taken it upon themselves to circumvent the Electoral College by joining what has come to be known as the National Popular Vote Interstate Compact, where no matter the vote for president in their own states, they will apportion electoral votes based on the national popular vote totals. Massachusetts is the latest state to join this Compact, but it is unclear whether it would actually pass constitutional muster if challenged.
Arguments in favor of the compact are compelling. Isn't it always better to have the people choose the president directly? In a nation as much in love with liberty as the United States, such an argument resonates powerfully. Other arguments are equally worthy: such a compact would prevent chaos in very close elections; it would take the focus of elections off the large swing states and thus empower smaller states; and the compact may open the door to more serious third party challenges, thus broadening participation.
But there are two powerful reasons for maintaining the current system. First, as conservatives, we favor tradition -- especially when it can't be proved that changing the rules would make the system better. For every argument in favor of deep-sixing the Electoral College, there are counterarguments which reveal some of the unintended consequences that would arise if we were to abandon the College and consign the Founders' wisdom to the dustbin of history.
The original intent of the College was to keep the decision for president entirely out of the hands of citizens and place it in the hands of "wise men," who would presumably act in the national interest in choosing a president rather than base the choice on the selfish interests of the rabble. The Electoral College was amended in 1804 to reflect the emergence of political parties, and states mostly settled on a "winner take all" formula for choosing electors.
This boosted the influence of states in national elections by forcing candidates to run campaigns that reflected the federal nature of our republic. The early divisions of big state vs. small state in the country were augmented by urban vs. rural, west vs. east, north vs. south, and agriculture vs. manufacturing divisions which a candidate for president had to address if he were to be successful.
The magic formula to reach a majority of the Electoral College votes, therefore, was a test of the broadest possible appeal of a candidate. It guaranteed that no region, no interest would be slighted by a candidate who did so at the risk of alienating key groups and losing precious Electoral College votes in the process. Rural voters from North and South, urban voters from the coast and the interior were lumped together, and specific appeals were tailored to win them over.
The other major reason to maintain the Electoral College is that it confirms the federal nature of the United States government. It is not surprising that the impetus for the compact is coming from heavily Democratic states. Direct election of a president would place a premium on wholesale politics. In the 2008 election, Barack Obama took nine of the ten largest states, running up huge majorities in the popular vote in states like California, Massachusetts, New York, Illinois, and Michigan. In a race decided by the popular vote, the Republican would be at a distinct disadvantage in that he would be forced to run a defensive campaign, trying to cut into the Democrat's huge advantage in coastal and heavily urbanized areas while defending turf in far less populous regions. The disparity would mean that the Republican would spend far more per vote than the Democrat.
And there is something to be said for the charm of presidential campaigns as they are currently run. True, swing states like Ohio and Florida get an inordinate amount of attention from candidates. But would smaller states receive more stroking from candidates if we were to switch to a popular vote model? I can't imagine it. In a close election like 2004, John Kerry and George Bush crisscrossed the country in those final days, hitting smaller states like New Mexico, Nevada, North Carolina, and Washington, in addition to the larger markets, fighting for each and every electoral vote. I doubt very much whether that scenario would play out in a direct election scenario, as it would be more efficient and prudent to appear in states with the largest TV markets to maximize the effort to win as many votes as possible.
The argument for or against the Electoral College is a close one. But in the end, bowing to the wisdom of the Founders has rarely steered us wrong through the centuries. In this, as in most things, their prescience in doing what was best for succeeding generations of Americans has been born out with great success.
Rick Moran is blog editor of American Thinker and proprietor of RightWing Nuthouse.
July 30, 2010
Why the Electoral College Matters
By Rick Moran
It's been called "undemocratic," "a relic," and worse. Every fifty years or so, a movement gets underway to eviscerate or eliminate it -- one of the creakiest compromises that emerged from our Constitutional Convention in 1788.
I refer to the Electoral College -- that inelegant, less-than-perfect, but ultimately useful device by which we actually elect our presidents. Over the years, more than thirty constitutional amendments have been introduced in Congress to gut the college or eliminate it entirely. None have ever passed the legislature and been sent to the states for ratification.
A few states have taken it upon themselves to circumvent the Electoral College by joining what has come to be known as the National Popular Vote Interstate Compact, where no matter the vote for president in their own states, they will apportion electoral votes based on the national popular vote totals. Massachusetts is the latest state to join this Compact, but it is unclear whether it would actually pass constitutional muster if challenged.
Arguments in favor of the compact are compelling. Isn't it always better to have the people choose the president directly? In a nation as much in love with liberty as the United States, such an argument resonates powerfully. Other arguments are equally worthy: such a compact would prevent chaos in very close elections; it would take the focus of elections off the large swing states and thus empower smaller states; and the compact may open the door to more serious third party challenges, thus broadening participation.
But there are two powerful reasons for maintaining the current system. First, as conservatives, we favor tradition -- especially when it can't be proved that changing the rules would make the system better. For every argument in favor of deep-sixing the Electoral College, there are counterarguments which reveal some of the unintended consequences that would arise if we were to abandon the College and consign the Founders' wisdom to the dustbin of history.
The original intent of the College was to keep the decision for president entirely out of the hands of citizens and place it in the hands of "wise men," who would presumably act in the national interest in choosing a president rather than base the choice on the selfish interests of the rabble. The Electoral College was amended in 1804 to reflect the emergence of political parties, and states mostly settled on a "winner take all" formula for choosing electors.
This boosted the influence of states in national elections by forcing candidates to run campaigns that reflected the federal nature of our republic. The early divisions of big state vs. small state in the country were augmented by urban vs. rural, west vs. east, north vs. south, and agriculture vs. manufacturing divisions which a candidate for president had to address if he were to be successful.
The magic formula to reach a majority of the Electoral College votes, therefore, was a test of the broadest possible appeal of a candidate. It guaranteed that no region, no interest would be slighted by a candidate who did so at the risk of alienating key groups and losing precious Electoral College votes in the process. Rural voters from North and South, urban voters from the coast and the interior were lumped together, and specific appeals were tailored to win them over.
The other major reason to maintain the Electoral College is that it confirms the federal nature of the United States government. It is not surprising that the impetus for the compact is coming from heavily Democratic states. Direct election of a president would place a premium on wholesale politics. In the 2008 election, Barack Obama took nine of the ten largest states, running up huge majorities in the popular vote in states like California, Massachusetts, New York, Illinois, and Michigan. In a race decided by the popular vote, the Republican would be at a distinct disadvantage in that he would be forced to run a defensive campaign, trying to cut into the Democrat's huge advantage in coastal and heavily urbanized areas while defending turf in far less populous regions. The disparity would mean that the Republican would spend far more per vote than the Democrat.
And there is something to be said for the charm of presidential campaigns as they are currently run. True, swing states like Ohio and Florida get an inordinate amount of attention from candidates. But would smaller states receive more stroking from candidates if we were to switch to a popular vote model? I can't imagine it. In a close election like 2004, John Kerry and George Bush crisscrossed the country in those final days, hitting smaller states like New Mexico, Nevada, North Carolina, and Washington, in addition to the larger markets, fighting for each and every electoral vote. I doubt very much whether that scenario would play out in a direct election scenario, as it would be more efficient and prudent to appear in states with the largest TV markets to maximize the effort to win as many votes as possible.
The argument for or against the Electoral College is a close one. But in the end, bowing to the wisdom of the Founders has rarely steered us wrong through the centuries. In this, as in most things, their prescience in doing what was best for succeeding generations of Americans has been born out with great success.
Rick Moran is blog editor of American Thinker and proprietor of RightWing Nuthouse.
Arizona Police And Tribal Police And The Now-Signed Tribal Law And Order act
From The American Spectator:
Arizona Police and Tribal Police
By James M. Thunder on 7.30.10 @ 6:08AM
Surely there is some irony and hypocrisy in the fact that, on the day after a federal judge issued a preliminary injunction against some provisions of the Arizona law that specified the enforcement in the state of certain federal immigration laws, President Obama signed into law yesterday the Tribal Law and Order Act. Why irony? Why hypocrisy?
First let me observe, and correct me if I am wrong, that state officers, including state judges, are sworn to uphold the U.S. Constitution and all (all!) federal laws. If this were not clear before the Civil War, it was made clear after the Civil War. It is their duty. They need no grant from the federal government. So, even without a state law in Arizona that commands police within the state to enforce certain federal immigration laws, and details how they must do so, they are obliged by their oaths to do so.
Comes now President Obama, the Chief Executive Officer of the United States, sworn to faithfully execute the federal laws, who instructs Attorney General Holder to march into federal court to seek an injunction against this new Arizona law and to prohibit the enforcement of federal laws (bad enough by itself) and compounds this violation of his oath by restraining police officers from performing their sworn obligations. At the President's request, the federal court has carved out -- from the universe of the laws the police are sworn to uphold -- particular federal immigration laws. This is a reversal of the Civil Rights Era in which the federal government mandated that the states comply with federal law -- and sent federal marshals and troops to ensure that they did so.
The day after the judge's ruling, President Obama signed the Trial Law and Order Act. According to reports, this law "will allow selected tribal police officers to enforce federal laws on Indian lands…" I am not sufficiently versed in Indian Law to know why tribal police officers, unlike state officers, need to be specifically deputized to enforce federal law. And, perhaps a reader can inform us whether this new law defines the federal laws now enforceable by tribal police to include immigration laws. Certainly a positive answer to this question would highlight the contrast that exists now between the authorities of tribal and Arizona police. For, whatever the answer, tribal police have been granted the authority which has been denied Arizona police.
But there is more. The report states that tribal police are empowered to enforce federal laws "whether or not the offender is Indian." If there was any merit to the argument that the Arizona law necessarily entailed racial profiling, is there not a great risk of racial profiling when tribal police enforce the federal laws against non-Indians on Indian Reservations? It is far easier for tribal police to discern who does not belong on the reservations they patrol than for Arizona police to discern who does not belong in the United States.
So, do we not have the prospect of a person of Hispanic ethnicity on a reservation in Arizona being lawfully stopped and questioned by tribal police, while the same person standing outside the reservation cannot be by Arizona police?
Letter to the Editor
Arizona Police and Tribal Police
By James M. Thunder on 7.30.10 @ 6:08AM
Surely there is some irony and hypocrisy in the fact that, on the day after a federal judge issued a preliminary injunction against some provisions of the Arizona law that specified the enforcement in the state of certain federal immigration laws, President Obama signed into law yesterday the Tribal Law and Order Act. Why irony? Why hypocrisy?
First let me observe, and correct me if I am wrong, that state officers, including state judges, are sworn to uphold the U.S. Constitution and all (all!) federal laws. If this were not clear before the Civil War, it was made clear after the Civil War. It is their duty. They need no grant from the federal government. So, even without a state law in Arizona that commands police within the state to enforce certain federal immigration laws, and details how they must do so, they are obliged by their oaths to do so.
Comes now President Obama, the Chief Executive Officer of the United States, sworn to faithfully execute the federal laws, who instructs Attorney General Holder to march into federal court to seek an injunction against this new Arizona law and to prohibit the enforcement of federal laws (bad enough by itself) and compounds this violation of his oath by restraining police officers from performing their sworn obligations. At the President's request, the federal court has carved out -- from the universe of the laws the police are sworn to uphold -- particular federal immigration laws. This is a reversal of the Civil Rights Era in which the federal government mandated that the states comply with federal law -- and sent federal marshals and troops to ensure that they did so.
The day after the judge's ruling, President Obama signed the Trial Law and Order Act. According to reports, this law "will allow selected tribal police officers to enforce federal laws on Indian lands…" I am not sufficiently versed in Indian Law to know why tribal police officers, unlike state officers, need to be specifically deputized to enforce federal law. And, perhaps a reader can inform us whether this new law defines the federal laws now enforceable by tribal police to include immigration laws. Certainly a positive answer to this question would highlight the contrast that exists now between the authorities of tribal and Arizona police. For, whatever the answer, tribal police have been granted the authority which has been denied Arizona police.
But there is more. The report states that tribal police are empowered to enforce federal laws "whether or not the offender is Indian." If there was any merit to the argument that the Arizona law necessarily entailed racial profiling, is there not a great risk of racial profiling when tribal police enforce the federal laws against non-Indians on Indian Reservations? It is far easier for tribal police to discern who does not belong on the reservations they patrol than for Arizona police to discern who does not belong in the United States.
So, do we not have the prospect of a person of Hispanic ethnicity on a reservation in Arizona being lawfully stopped and questioned by tribal police, while the same person standing outside the reservation cannot be by Arizona police?
Letter to the Editor
Ethics, Criminal Compalints Filed To Disbar Kagan
From A Charging Elephant:
Ethics, Criminal Complaints filed to disbar Elena Kagan
July 30, 2010 · Leave a Comment
‘She should not be a justice when she’s defrauded the Supreme Court’
libertyalliance.org
Declaration Alliance has retained noted attorney Larry Klayman to file an ethics complaint seeking to have Supreme Court nominee Elena Kagan disbarred from practicing before the court she aspires to join – and possibly subjected to criminal prosecution – for her role in an escalating scandal.
Kagan’s political maneuvers while an attorney for President Bill Clinton led to language authored by her becoming accepted as “official findings” of a medical “expert panel.” Kagan’s inserted language misled the federal courts, including the Supreme Court, into upholding for nearly a decade legal protections for the heinous practice known as partial-birth abortion that 30 states had attempted to ban.
Klayman, founder of the Judicial Watch and Freedom Watch USA public interest law groups, is bringing the complaint at the behest of Declaration Alliance, the national pro-life social welfare organization founded in 1996 by Ambassador Alan Keyes. The complaint alleges Kagan fraudulently altered an official scientific report used as evidence by the Supreme Court to persuade the justices to overturn bans on partial-birth abortion — and then recently lied about her actions under oath.
Dozens of pro-life organizations are already calling for a Senate investigation of Kagan’s 1997 alterations to an American College of Obstetricians and Gynecologists (ACOG) expert report, which was then used by the Supreme Court as justification for overturning Nebraska’s partial-birth abortion ban in 2000.
In her confirmation hearings, Kagan may have perjured herself during the course of Justice Committee questioning about her actions in having altered the report. She defended her participation in political meetings and editing of the report by stating, “My only dealings with ACOG were about talking with them about how to ensure that their statement expressed their views.”
In light of detailed review and analysis by Americans United for Life and others of Kagan’s contemporaneous documentation on these matters, there can be no doubt that this testimony is false and misleading. Kagan’s amended language to the ACOG report was politically negotiated and strategized, and it dramatically changed the meaning of the ACOG statement. Court records show the ACOG report as altered by Kagan was passed off to the Supreme Court as official scientific opinion, even though the ACOG’s panel of scientists never reviewed or approved Kagan’s wording.
Declaration Alliance believes Kagan’s behind-the-scenes work constitutes “conspiracy to defraud the Supreme Court,” and in the public interest is taking immediately the evidence that has been compiled by pro-life groups to file a complaint before the clerk’s office of the U.S. Supreme Court, seeking to have Kagan disbarred as a practicing lawyer in front of the Supreme Court.
And on advice of counsel, Declaration Alliance will not stop there.
States Klayman, “Then I’m going to ask the Supreme Court to refer the matter to the Justice Department for criminal investigation and possibly prosecution of obstruction of justice, because it was reasonably foreseeable that her altering that [ACOG] report would ultimately be used in court proceedings, including but not limited to the Supreme Court.”
Even if Kagan is confirmed by a vote in the Senate, Declaration Alliance will not give up the fight. “If she is ultimately confirmed – and we can hope that she will not be – then we will go to phase two, which will be impeachment,” stated Klayman.
Klayman concludes, “Elena Kagan should not be a justice of the Supreme Court when she’s defrauded the Supreme Court. In fact, she shouldn’t even be allowed to practice in front of the Supreme Court under these circumstances.”
Declaration Alliance will pursue all recourse under law to ensure that justice prevails against Kagan’s abuse of the public trust. Any pro-life, pro-family, pro-Constitution civic organization also desiring to uphold the ethical standards of American justice by aggressively pursuit of sanction against Elena Kagan is invited to join in this effort. For more information , please call toll free 866-243-3172.
Ethics, Criminal Complaints filed to disbar Elena Kagan
July 30, 2010 · Leave a Comment
‘She should not be a justice when she’s defrauded the Supreme Court’
libertyalliance.org
Declaration Alliance has retained noted attorney Larry Klayman to file an ethics complaint seeking to have Supreme Court nominee Elena Kagan disbarred from practicing before the court she aspires to join – and possibly subjected to criminal prosecution – for her role in an escalating scandal.
Kagan’s political maneuvers while an attorney for President Bill Clinton led to language authored by her becoming accepted as “official findings” of a medical “expert panel.” Kagan’s inserted language misled the federal courts, including the Supreme Court, into upholding for nearly a decade legal protections for the heinous practice known as partial-birth abortion that 30 states had attempted to ban.
Klayman, founder of the Judicial Watch and Freedom Watch USA public interest law groups, is bringing the complaint at the behest of Declaration Alliance, the national pro-life social welfare organization founded in 1996 by Ambassador Alan Keyes. The complaint alleges Kagan fraudulently altered an official scientific report used as evidence by the Supreme Court to persuade the justices to overturn bans on partial-birth abortion — and then recently lied about her actions under oath.
Dozens of pro-life organizations are already calling for a Senate investigation of Kagan’s 1997 alterations to an American College of Obstetricians and Gynecologists (ACOG) expert report, which was then used by the Supreme Court as justification for overturning Nebraska’s partial-birth abortion ban in 2000.
In her confirmation hearings, Kagan may have perjured herself during the course of Justice Committee questioning about her actions in having altered the report. She defended her participation in political meetings and editing of the report by stating, “My only dealings with ACOG were about talking with them about how to ensure that their statement expressed their views.”
In light of detailed review and analysis by Americans United for Life and others of Kagan’s contemporaneous documentation on these matters, there can be no doubt that this testimony is false and misleading. Kagan’s amended language to the ACOG report was politically negotiated and strategized, and it dramatically changed the meaning of the ACOG statement. Court records show the ACOG report as altered by Kagan was passed off to the Supreme Court as official scientific opinion, even though the ACOG’s panel of scientists never reviewed or approved Kagan’s wording.
Declaration Alliance believes Kagan’s behind-the-scenes work constitutes “conspiracy to defraud the Supreme Court,” and in the public interest is taking immediately the evidence that has been compiled by pro-life groups to file a complaint before the clerk’s office of the U.S. Supreme Court, seeking to have Kagan disbarred as a practicing lawyer in front of the Supreme Court.
And on advice of counsel, Declaration Alliance will not stop there.
States Klayman, “Then I’m going to ask the Supreme Court to refer the matter to the Justice Department for criminal investigation and possibly prosecution of obstruction of justice, because it was reasonably foreseeable that her altering that [ACOG] report would ultimately be used in court proceedings, including but not limited to the Supreme Court.”
Even if Kagan is confirmed by a vote in the Senate, Declaration Alliance will not give up the fight. “If she is ultimately confirmed – and we can hope that she will not be – then we will go to phase two, which will be impeachment,” stated Klayman.
Klayman concludes, “Elena Kagan should not be a justice of the Supreme Court when she’s defrauded the Supreme Court. In fact, she shouldn’t even be allowed to practice in front of the Supreme Court under these circumstances.”
Declaration Alliance will pursue all recourse under law to ensure that justice prevails against Kagan’s abuse of the public trust. Any pro-life, pro-family, pro-Constitution civic organization also desiring to uphold the ethical standards of American justice by aggressively pursuit of sanction against Elena Kagan is invited to join in this effort. For more information , please call toll free 866-243-3172.
9th Circuit Court Of Appeals Denies Arizona's Request For An Expedited Appeal
From Michelle Malkin:
9th Circuirt denies Arizona’s expedited appeal
By Michelle Malkin • July 30, 2010 09:39 PM I know, I know. What else did you expect from the 9th Circuit? (h/t Tammy Bruce)
Via Business Week:
Arizona’s appeal of a federal court ruling that blocks the central provisions of a state law requiring police to determine the immigration status of people stopped for questioning was set for November.
The U.S. Court of Appeals in San Francisco today denied Arizona Governor Jan Brewer’s bid for an expedited hearing in September. State lawyers argued the earlier date was needed because parts of the law barred by the lower court addressed “serious criminal, environmental and economic problems” due to ineffective federal enforcement of immigration laws.
The Justice Department, which sued to block Arizona’s law, said the timetable proposed by the state would give it only two weeks to respond to briefs and not the four weeks allowed by court rules.
The schedule from here on out:
Arizona’s opening brief in the appeal is due Aug. 26, the government’s brief is due 28 days after the state’s, and no extensions will be granted unless there are “extraordinary and compelling circumstances,” the appeals court ruled. The court ordered its clerk’s office to schedule the hearing during the week of Nov. 1.
9th Circuirt denies Arizona’s expedited appeal
By Michelle Malkin • July 30, 2010 09:39 PM I know, I know. What else did you expect from the 9th Circuit? (h/t Tammy Bruce)
Via Business Week:
Arizona’s appeal of a federal court ruling that blocks the central provisions of a state law requiring police to determine the immigration status of people stopped for questioning was set for November.
The U.S. Court of Appeals in San Francisco today denied Arizona Governor Jan Brewer’s bid for an expedited hearing in September. State lawyers argued the earlier date was needed because parts of the law barred by the lower court addressed “serious criminal, environmental and economic problems” due to ineffective federal enforcement of immigration laws.
The Justice Department, which sued to block Arizona’s law, said the timetable proposed by the state would give it only two weeks to respond to briefs and not the four weeks allowed by court rules.
The schedule from here on out:
Arizona’s opening brief in the appeal is due Aug. 26, the government’s brief is due 28 days after the state’s, and no extensions will be granted unless there are “extraordinary and compelling circumstances,” the appeals court ruled. The court ordered its clerk’s office to schedule the hearing during the week of Nov. 1.
White house Proposal would Ease FBI Access To Records Of Internet Activity
From The Washington Post and Town Hall:
White House proposal would ease FBI access to records of Internet activity
Lawyer Stewart Baker said the change would sometimes "mean giving a lot more information to the FBI." (Courtesy Of The Department Of Homeland Security) Network NewsX Profile
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Who's Blogging» Links to this article
By Ellen Nakashima
Washington Post Staff Writer
Thursday, July 29, 2010
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
(FBI access to e-mail and web records raises fears)
The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.
(FBI and Department of Justice join forces, investigate Wikileaks)
But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.
(Facebook hits 500 million users, but at what cost?)
Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."
(NSA whistleblower now works at Apple store)
Many Internet service providers have resisted the government's demands to turn over electronic records, arguing that surveillance law as written does not allow them to do so, industry lawyers say. One senior administration government official, who would discuss the proposed change only on condition of anonymity, countered that "most" Internet or e-mail providers do turn over such data.
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.
The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. "You're bringing a big category of data -- records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information -- outside of judicial review," said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.
Privacy concerns
The use of the national security letters to obtain personal data on Americans has prompted concern. The Justice Department issued 192,500 national security letters from 2003 to 2006, according to a 2008 inspector general report, which did not indicate how many were demands for Internet records. A 2007 IG report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request. In two cases, the report found, agents used NSLs to request content information "not permitted by the [surveillance] statute."
One issue with both the proposal and the current law is that the phrase "electronic communication transactional records" is not defined anywhere in statute. "Our biggest concern is that an expanded NSL power might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded," said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued AT&T for assisting the Bush administration's warrantless surveillance program.
He said he does not object to the government obtaining access to electronic records, provided it has a judge's approval.
Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order. "The statute as written causes confusion and the potential for unnecessary litigation," Justice Department spokesman Dean Boyd said. "This clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993."
The administration has asked Congress to amend the statute, the Electronic Communications Privacy Act, in the fiscal year that begins in October.
Administration officials noted that the act specifies in one clause that Internet and other companies have a duty to provide electronic communication transactional records to the FBI in response to a national security letter.
But the next clause specifies only four categories of basic subscriber data that the FBI may seek: name, address, length of service and toll billing records. There is no reference to electronic communication transactional records.
Same as phone records?
The officials said the transactional information at issue, which does not include Internet search queries, is the functional equivalent of telephone toll billing records, which the FBI can obtain without court authorization. Learning the e-mail addresses to which an Internet user sends messages, they said, is no different than obtaining a list of numbers called by a telephone user.
Obtaining such records with an NSL, as opposed to a court order, "allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient," the senior administration official said.
But the value of such data is the reason a court should approve its disclosure, said Greg Nojeim, senior counsel at the Center for Democracy and Technology. "It's much more sensitive than the other information, like name, address and telephone number, that the FBI gets with national security letters," he said. "It shows associational information protected by the First Amendment and is much less public than things like where you live."
A Nov. 5, 2008, opinion from the Justice Department's Office of Legal Counsel, whose opinions are binding on the executive branch, made clear that the four categories of basic subscriber information the FBI may obtain with an NSL were "exhaustive."
This opinion, said Sussmann, the former Clinton administration lawyer, caused many companies to reevaluate the scope of what could be provided in response to an NSL. "The OLC opinion removed the ambiguity," he said. "Providers now are limited to the four corners of what the opinion says they can give out. Those who give more do so at their own risk."
Marc Zwillinger, an attorney for Internet companies, said some providers are not giving the FBI more than the four categories specified. He added that with the rise of social networking, the government's move could open a significant amount of Internet activity to government surveillance without judicial authorization. "A Facebook friend request -- is that like a phone call or an e-mail? Is that something they would sweep in under an NSL? They certainly aren't getting that now."
White House proposal would ease FBI access to records of Internet activity
Lawyer Stewart Baker said the change would sometimes "mean giving a lot more information to the FBI." (Courtesy Of The Department Of Homeland Security) Network NewsX Profile
Tweet 492
View More Activity
TOOLBOX
Resize Print E-mail Yahoo! BuzzReprints
COMMENT
440 Comments
View All »
POST A COMMENT
You must be logged in to leave a comment. Log in
Register
Why Do I Have to Log In Again?
Log In Again? CLOSEWe've made some updates to washingtonpost.com's Groups, MyPost and comment pages. We need you to verify your MyPost ID by logging in before you can post to the new pages. We apologize for the inconvenience.
Discussion PolicyYour browser's settings may be preventing you from commenting on and viewing comments about this item. See instructions for fixing the problem.
Discussion Policy CLOSEComments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions. You are fully responsible for the content that you post.
Who's Blogging» Links to this article
By Ellen Nakashima
Washington Post Staff Writer
Thursday, July 29, 2010
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
(FBI access to e-mail and web records raises fears)
The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.
(FBI and Department of Justice join forces, investigate Wikileaks)
But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.
(Facebook hits 500 million users, but at what cost?)
Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."
(NSA whistleblower now works at Apple store)
Many Internet service providers have resisted the government's demands to turn over electronic records, arguing that surveillance law as written does not allow them to do so, industry lawyers say. One senior administration government official, who would discuss the proposed change only on condition of anonymity, countered that "most" Internet or e-mail providers do turn over such data.
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.
The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. "You're bringing a big category of data -- records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information -- outside of judicial review," said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.
Privacy concerns
The use of the national security letters to obtain personal data on Americans has prompted concern. The Justice Department issued 192,500 national security letters from 2003 to 2006, according to a 2008 inspector general report, which did not indicate how many were demands for Internet records. A 2007 IG report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request. In two cases, the report found, agents used NSLs to request content information "not permitted by the [surveillance] statute."
One issue with both the proposal and the current law is that the phrase "electronic communication transactional records" is not defined anywhere in statute. "Our biggest concern is that an expanded NSL power might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded," said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued AT&T for assisting the Bush administration's warrantless surveillance program.
He said he does not object to the government obtaining access to electronic records, provided it has a judge's approval.
Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order. "The statute as written causes confusion and the potential for unnecessary litigation," Justice Department spokesman Dean Boyd said. "This clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993."
The administration has asked Congress to amend the statute, the Electronic Communications Privacy Act, in the fiscal year that begins in October.
Administration officials noted that the act specifies in one clause that Internet and other companies have a duty to provide electronic communication transactional records to the FBI in response to a national security letter.
But the next clause specifies only four categories of basic subscriber data that the FBI may seek: name, address, length of service and toll billing records. There is no reference to electronic communication transactional records.
Same as phone records?
The officials said the transactional information at issue, which does not include Internet search queries, is the functional equivalent of telephone toll billing records, which the FBI can obtain without court authorization. Learning the e-mail addresses to which an Internet user sends messages, they said, is no different than obtaining a list of numbers called by a telephone user.
Obtaining such records with an NSL, as opposed to a court order, "allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient," the senior administration official said.
But the value of such data is the reason a court should approve its disclosure, said Greg Nojeim, senior counsel at the Center for Democracy and Technology. "It's much more sensitive than the other information, like name, address and telephone number, that the FBI gets with national security letters," he said. "It shows associational information protected by the First Amendment and is much less public than things like where you live."
A Nov. 5, 2008, opinion from the Justice Department's Office of Legal Counsel, whose opinions are binding on the executive branch, made clear that the four categories of basic subscriber information the FBI may obtain with an NSL were "exhaustive."
This opinion, said Sussmann, the former Clinton administration lawyer, caused many companies to reevaluate the scope of what could be provided in response to an NSL. "The OLC opinion removed the ambiguity," he said. "Providers now are limited to the four corners of what the opinion says they can give out. Those who give more do so at their own risk."
Marc Zwillinger, an attorney for Internet companies, said some providers are not giving the FBI more than the four categories specified. He added that with the rise of social networking, the government's move could open a significant amount of Internet activity to government surveillance without judicial authorization. "A Facebook friend request -- is that like a phone call or an e-mail? Is that something they would sweep in under an NSL? They certainly aren't getting that now."
Another Day, Another Federal Assault On Liberty
From Town Hall:
David Limbaugh Another Day, Another Federal Assault on Liberty
EMAIL DAVID LIMBAUGH
COLUMNIST'S ARCHIVE SHARE THIS: Share62 1700diggsdiggSign-Up Yesterday's federal court decision to enjoin enforcement of the Arizona immigration law is the latest example of a virtually unchecked renegade federal government waging war against the states and against the liberties of its citizens.
We've seen that Obama will exercise any power he can get away with, from strong-arming secured creditors and favoring unions as he gobbled up automakers to making a mockery of due process with his Oval Office shakedown of BP. But he might have reached a new low with his assaults on the sovereignty of the people of Arizona.
Indeed, Judge Susan Bolton's disgraceful decision to grant an injunction against Arizona's new immigration law is, in the words of Mark Levin, "abominable," but let's not forget that this case wouldn't have been before Judge Bolton if Obama's Justice Department hadn't initiated it.
And let's not pretend that Obama's motives are anything other than political, the law and the rule of law be damned. He told Sen. Jon Kyl in a private meeting that he was unwilling to secure our borders because it would decrease his chances to pass "comprehensive immigration reform."
So when Arizona attempted to exercise a little self-help and work on securing its own border by passing a law carefully crafted to mirror the federal immigration law and encourage its enforcement, the all-powerful Obama feds came down on it like a furious king against his disobedient subjects.
In a saner world, freedom lovers could have rested easy, knowing that an impartial, Constitution-respecting judge would summarily reject the administration's unlawful scheme to thwart Arizona's sovereignty by superimposing its own nonenforcement policy.
But in her decision, Clinton appointee Bolton demonstrated how dangerous judicial activism can be to our individual liberties and democratic processes. It's one thing for a court to invalidate a law because it doesn't pass constitutional muster; it's quite another for it to misstate the facts, the legislation and the Constitution to reach a preordained decision.
Just consider three outrages of this decision highlighted by other commentators, any of which, individually, makes a mockery of justice. Andy McCarthy properly observes that Judge Bolton stretched the federal pre-emption doctrine to absurd limits. Under Bolton's specious reasoning, state law must be struck down not only if it is inconsistent with federal law, which the Arizona law is not, but also if it somehow contradicts federal law enforcement practices. Because the Obama feds refused, as a matter of policy, to enforce their own law against illegal immigration, the state could not be allowed to pass a law promoting enforcement. Note that nothing in the actual Constitution or case law justifies such an extrapolation of pre-emption doctrine. But such trifles don't impede an administration and court determined to keep the immigration floodgates open at any cost.
Mark Levin notes that Judge Bolton correctly enunciated the rigorous legal standard required for a plaintiff to succeed in a "facial challenge" to a law's constitutionality but then proceeded to ignore the rules she had just affirmed. She acknowledged that for the federal government to have prevailed, it would have had to show the law could never be applied in a constitutional fashion. That is, "a facial challenge must fail where a statute has a 'plainly legitimate sweep.'" But she ignored that limitation on her authority, just as she violated another principle she paid lip service to in her opinion: that the court was not to speculate about hypothetical cases.
Heather Mac Donald exposes Judge Bolton's acquiescence to the Obama administration's "carefully cultivated fiction" that the administration's primary motive with the lawsuit was to prevent the application of the law to legal aliens. The judge ignored uncontroverted testimony and legal briefs from Arizona officials stating that only people who were reasonably suspected to be illegally in the country would be required to prove their legal status. So to protect legal aliens from a law that doesn't apply to them, she refuses to apply the law to illegals.
Cynical observers of the political scene lazily dismiss each unfolding Obama outrage as merely Washington politics as usual. But with this administration, we're witnessing power grabs that are different in kind rather than degree.
Our liberties depend on our preserving the integrity of the Constitution and the mechanisms it established to deter tyranny. To the extent we dismantle those safeguards, we imperil our freedoms.
When the political class is filled with those who are ideologically committed to certain political ends irrespective of the legality of the means used to achieve them, our system of checks and balances breaks down, which is one reason John Adams warned, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
November's elections cannot come fast enough.
1
David Limbaugh Another Day, Another Federal Assault on Liberty
EMAIL DAVID LIMBAUGH
COLUMNIST'S ARCHIVE SHARE THIS: Share62 1700diggsdiggSign-Up Yesterday's federal court decision to enjoin enforcement of the Arizona immigration law is the latest example of a virtually unchecked renegade federal government waging war against the states and against the liberties of its citizens.
We've seen that Obama will exercise any power he can get away with, from strong-arming secured creditors and favoring unions as he gobbled up automakers to making a mockery of due process with his Oval Office shakedown of BP. But he might have reached a new low with his assaults on the sovereignty of the people of Arizona.
Indeed, Judge Susan Bolton's disgraceful decision to grant an injunction against Arizona's new immigration law is, in the words of Mark Levin, "abominable," but let's not forget that this case wouldn't have been before Judge Bolton if Obama's Justice Department hadn't initiated it.
And let's not pretend that Obama's motives are anything other than political, the law and the rule of law be damned. He told Sen. Jon Kyl in a private meeting that he was unwilling to secure our borders because it would decrease his chances to pass "comprehensive immigration reform."
So when Arizona attempted to exercise a little self-help and work on securing its own border by passing a law carefully crafted to mirror the federal immigration law and encourage its enforcement, the all-powerful Obama feds came down on it like a furious king against his disobedient subjects.
In a saner world, freedom lovers could have rested easy, knowing that an impartial, Constitution-respecting judge would summarily reject the administration's unlawful scheme to thwart Arizona's sovereignty by superimposing its own nonenforcement policy.
But in her decision, Clinton appointee Bolton demonstrated how dangerous judicial activism can be to our individual liberties and democratic processes. It's one thing for a court to invalidate a law because it doesn't pass constitutional muster; it's quite another for it to misstate the facts, the legislation and the Constitution to reach a preordained decision.
Just consider three outrages of this decision highlighted by other commentators, any of which, individually, makes a mockery of justice. Andy McCarthy properly observes that Judge Bolton stretched the federal pre-emption doctrine to absurd limits. Under Bolton's specious reasoning, state law must be struck down not only if it is inconsistent with federal law, which the Arizona law is not, but also if it somehow contradicts federal law enforcement practices. Because the Obama feds refused, as a matter of policy, to enforce their own law against illegal immigration, the state could not be allowed to pass a law promoting enforcement. Note that nothing in the actual Constitution or case law justifies such an extrapolation of pre-emption doctrine. But such trifles don't impede an administration and court determined to keep the immigration floodgates open at any cost.
Mark Levin notes that Judge Bolton correctly enunciated the rigorous legal standard required for a plaintiff to succeed in a "facial challenge" to a law's constitutionality but then proceeded to ignore the rules she had just affirmed. She acknowledged that for the federal government to have prevailed, it would have had to show the law could never be applied in a constitutional fashion. That is, "a facial challenge must fail where a statute has a 'plainly legitimate sweep.'" But she ignored that limitation on her authority, just as she violated another principle she paid lip service to in her opinion: that the court was not to speculate about hypothetical cases.
Heather Mac Donald exposes Judge Bolton's acquiescence to the Obama administration's "carefully cultivated fiction" that the administration's primary motive with the lawsuit was to prevent the application of the law to legal aliens. The judge ignored uncontroverted testimony and legal briefs from Arizona officials stating that only people who were reasonably suspected to be illegally in the country would be required to prove their legal status. So to protect legal aliens from a law that doesn't apply to them, she refuses to apply the law to illegals.
Cynical observers of the political scene lazily dismiss each unfolding Obama outrage as merely Washington politics as usual. But with this administration, we're witnessing power grabs that are different in kind rather than degree.
Our liberties depend on our preserving the integrity of the Constitution and the mechanisms it established to deter tyranny. To the extent we dismantle those safeguards, we imperil our freedoms.
When the political class is filled with those who are ideologically committed to certain political ends irrespective of the legality of the means used to achieve them, our system of checks and balances breaks down, which is one reason John Adams warned, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
November's elections cannot come fast enough.
1
Obama Regime By-Passes Law Of The Sea Traty Ratification, Establishes National Ocean Council By Executive Order
From MorphCity and Liberty Pulse:
National Ocean Council
By Cassandra Anderson
July 28, 2010
Thirty states will be encroached upon by Obama's Executive Order establishing the National Ocean Council for control over America's oceans, coastlines and the Great Lakes. Under this new council, states' coastal jurisdictions will be subject to the United Nations' Law Of Sea Treaty (LOST) in this UN Agenda 21 program. America'a oceans and coastlines will be broken into 9 regions that include the North East, Mid-Atlantic, South Atlantic, the Gulf Coast, West Coast, the Great Lakes, Alaska, the Pacific Islands (including Hawaii) and the Caribbean.
Because of the decades of difficulty that the collectivists have had trying to ratify the Law Of Sea Treaty (LOST), Obama is sneaking it in through the back door, by way of this Executive Order establishing the Council. Because LOST is a treaty, Obama's Executive Order is not Constitutional as treaty ratification requires 2/3 approval from the Senate. Michael Shaw said that the Agenda 21 Convention on Biodiversity treaty of 1992 failed to pass Congress so it was executed through soft law and administratively on local levels, and Obama's Executive Order is a similar soft law tactic to enact the LOST treaty.
In fact, our Constitutional form of government is being completely destroyed because buried in the CLEAR Act (HR 3534) there is a provision for a new council to oversee the outer continental shelf- it appears that this Regional Outer Shelf Council will be part of the National Ocean Council. This means that if Congress makes the CLEAR Act into law, then the implementation of the UN Law Of Sea Treaty, as part of the National Ocean Council's agenda, will be "ratified" in a convoluted and stealth manner, in full opposition to the Constitution and its intent.
The excuse for this extreme action is because of the emergency in the Gulf of Mexico. Obama and Congress have always had the legal and military power to force BP Oil to take all necessary action to stop the gusher and clean the oil spew. While there is evidence that the problems in the Gulf have been a result of collusion and planned incompetence, it begs the question, why in world should America's oceans and resources be controlled by Obama appointees?
NATIONAL OCEAN COUNCIL MEMBERS:
John Holdren, Obama's science and technology advisor, is the co-chairman of this new council. He is also a depopulation enthusiast and advocates sterilization by way of using infertility drugs in water and food as well as forced abortions which he describes in his book "Ecoscience".
Ken Salazar, Secretary of the Department of Interior, and its subagency, MMS (Minerals Management Service) has authority over offshore drilling and responsibility for enforcing spill prevention measures. The Department of Interior's BLM (Bureau of Land Management) is the entity that controls federally managed land extending across 30% of America in 11 western states. Last week, Congressman Louie Gohmert said that Ken Salazar personally prevented drilling on land in Utah, Wyoming and Colorado, thereby also preventing energy independence. In addition, the federal lands have been grossly mismanaged and present fire dangers. The federal government is $3.7 billion in arrears for maintenance of the federally managed lands.
US Department of Agriculture Secretary Tom Vilsack, by way of the US Forestry Service and US Fish & Wildlife Service, has been complicit in the decline of our country's food independence. For example, US Fish & Wildlife (along with the Department of Commerce) shut the water off in California using Endangered Species Act; it was later proven that partially treated sewage was the primary culprit in killing the salmon and delta smelt that was previously blamed on farmers. This is phony environmentalism. The US Forestry Service has also misused the Endangered Species Act to limit farmers and ranchers. Remember that the USDA co-owns the Terminator Gene patent with Monsanto that makes seeds sterile.
Lisa Jackson is the EPA administrator who has threatened to impose 18,000 pages of new regulations to curb global warming which is based on lies, claiming that carbon dioxide is a danger to human health.
Department of Defense Secretary Robert Gates and Department of Homeland Security Secretary Janet Napolitano: it is unclear how these two federal appointees will enhance environmental 'sustainability' over oceans and coasts. Traditionally, national security threats (like the War on Terror) have been used by the federal government to take control of resources. For example, many years ago when the interstate highway systems were first being built, the Feds got in on the action by claiming that they were building a defense highway system, and they encroached into an area that belonged to the states. Interestingly, there were no overhead structures on highways originally because of the Feds' claim that large missiles would be transported on these "defense" highway systems.
Secretary of State Hilary Clinton, a leading globalist, is likely to plunge our country into international entanglements and subjugation, based on her past performance; an example is her support of the UN Small Arms Treaty, which is contrary to the Constitution.
Department of Energy Secretary Steven Chu and Department of Commerce Secretary Gary Locke are logical choices for this destructive council as some of the planned funding for this program will come from permits and leases (oil drilling leases, for example). These agencies will limit America's energy independence.
Click here to see the full list of the 24 member council.
THE SMOKING GUN:
Agenda 21 Sustainable Development is the overarching blueprint for depopulationa and total control, and the National Ocean Council is clearly an Agenda 21 program:
The National Ocean Council is headed by John Holdren, an avowed eugenicist which is selective breeding through brutal means like forced abortion.
The National Ocean Counci's own report (Coastal and Marine Spatial Planning, pg. 8) incorporates a section of the 1992 Rio Declaration which is an original UN Agenda 21 document!
In fact, the report says that it will be guided by the Rio Declaration in cases "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." (pg. 8) This means that regulations will be imposed even if the science is not understood or if the science is based on global warming manipulated data.
The 3 primary tools of Agenda 21's phony environmentalism are global warming, water shortages and the Endangered Species Act; the National Ocean Council intends to exploit all of these tools to their full extent.
The National Ocean Council's main objective is to sink American sovereignty through the United Nations Law Of Sea Treaty (LOST) with the intended result of domination by the UN over our coasts and the Great Lakes. LOST originated in the 1970s as a wealth redistribution plan to benefit Third World countries. LOST sets rules for commercial activity beneath the high seas and establishes new international bureaucracies and a tribunal to interpret and apply rules to sea activity. And LOST can proceed with those rules, even against US objections! LOST threatens to complicate deep sea mining. LOST sets a precedent that US rights are dependent upon the approval of international entities. LOST also extends to ocean flowing rivers.
REGIONALISM:
Michael Shaw pointed out that non-elected councils are increasingly expanding their jurisdiction through air quality boards, water quality boards, sewer systems, transportation districts, metropolitan planning, etc. to gain control over resources. Often, large corporations and financial interests form Public- Private Partnerships with the government within these councils.
Breaking areas into regions and placing authority with non-elected councils is a Communist trick used to hijack resources, thereby usurping local and state power by re-zoning the areas that do have Constitutional authority. Appointed bureaucrats are untouchable because their jobs are not dependent upon serving the voting population. And they are usually inaccessible to the public and do not have to face those who are affected by their "insider" decisions. When state and local governments become corrupt, the public is able to confront them eye to eye, but distant bureaucrats can avoid accountability. Regionalism is used as a psychological tactic to intimidate state legislatures into creating the system for a new political and economic order.
Obama's Executive Order that has created the 9 new regions amounts to re-zoning, and his appointed bureaucrats are answerable only to him. In David Horton's testimony in 1978 on regionalism, he said that the State of Indiana made this declaration, "Neither the states nor Congress have ever granted authority to any branch or agency of the federal government to exercise regional control over the states." Horton further stated that Congress holds all legislative power that is granted in the Constitution, as opposed to Executive Orders that are not legislative. Therefore, Obama's Executive Order for re-zoning and appointing a governing body to usurp state and local power is Constitutionally invalid.
The public must become aware of state sovereignty and the Tenth Amendment to demand that state and local governments assert these Constitutional laws and principles.
COASTAL AND MARINE SPATIAL PLANNING REPORT:
This is a general overview of the new National Ocean Council's goals based on its 32-page report that uses indirect language and acronyms in order to confuse the public and local lawmakers. Depopulation advocates, globalists and collectivists, like John Holdren, faced opposition a few decades ago when they clearly expressed their objectives, so now documents are written in complicated and clouded language to fool those they wish to control.
This report states that the Council's jurisdiction will extend from the continental shelf to the coast AND additional inland areas will be involved. The National Ocean Council identifies "partners" as members of each regional planning body that will include federal, state, local and tribal authorities, with a top-down hierarchy of control.
The intentions of the Council are stated on page 8 of the report that include implementing LOST and other international treaties. The report also states that the Counci's plans shall be implemented by Executive Orders, in addition to federal and state laws. This section mentions 'global climate change' which is a new term used as a substitute for 'man made global warming' after manipulated data and lies were exposed in numerous global warming scandals. 'Climate change' is blamed for sea level rise and acidification of oceans; evidence exists that these are more global warming deceptions.
The stated goals of the Council include regulating investments, collaborating with unidentified international agencies, controlling public access to oceans and "protecting" ecosystems. This means that commerce and trade will be controlled by the Council, the UN will gain power over American oceans and the Great Lakes through UN subagencies, public access will be limited and the Endangered Species Act will be unleashed, with heavy regulations. Incidentally, the Endangered Species Act is based on 5 international treaties. It has never had a successful result: of the 60 species that have been de-listed, not a single species was saved as a result of any restrictions stemming from the Endangered Species Act!
The targeted areas for Endangered Species Act regulations are the the Great Lakes, the Gulf Coast, Chesapeake Bay, Puget Sound, South Florida and the San Francisco Bay (the Bay Delta is where the irrigation water for farmers was was cut off using the Endangered Species Act, causing food shortages, an increase in food imports and massive economic devastation).
While this report does not clearly outline how the National Ocean Council's schemes will be financed, regulatory permits for all activity on the water and mining (oil) leases will play a part, along with tax increases. The report does indicate that grants and assistance programs will be available so that state, local and tribal authorities will support the Council's "efforts". In other words, the Council will try to buy off the state and local governments to "collectively use" them for a base of support and influence. (pg. 28) Strings are always attached to federal money. The federal government and the Council are reliant on state and local governments for implementation through state and local legal authority, which means that state and local authorities hold the power to implement or refuse the Council's directives, especially under the Tenth Amendment.
However, the report does state that disputes will be settled by consensus, if consensus fails, then the decisions will ultimately be made by the President. He is Commander in Chief of the Navy and has the power of the military behind him. Further, the report indicates that legislative changes and more Executive Orders may be necessary to achieve control.
An important point is made on page 5, which states, "Strong partnerships among Federal, State, tribal and local authorities, and regional governance structures would be essential to a truly forward-looking, comprehensive CMSP effort." This means that the states, local governments and tribes have power. Our collectivist government needs the consent of the state, local and tribal authorities, to implement this scheme, otherwise, the feds wouldn't bother to include these Constitutional authorities. If the state, local and tribal authorities are aware of, and willing to act on their Constitutional authority, then they can limit this federal power grab through the Tenth Amendment.
The report further states that signing onto the Council's plan would be an "express commitment by the partners to act in accordance with the plan..." (pg. 20) Therefore, it is imperative that all of the states be aware of the Council's intended usurpation and carefully protect their Constitutional jurisdictions and sovereignty. There are 30 states that will be affected by this new council. (pg. 12)
The Council's strategy plan will go into effect immediately, fully developing Agenda 21 objectives and undue UN influence within 5 years. Interestingly, one article said that if state, local and tribal authorities choose not to participate in in writing the plans, the plans would be written without them. Therefore, it bears repeating that state and local governments must protect their Constitutional authority when dealing with the Council. The Constitutional authority that states and local governments have can only be taken if the power is given away.
SAVING OUR COUNTRY:
If your freedom is important to you, the most effective action that you can take is to e-mail this article and Michael Shaw's "Understanding Agenda 21 Sustainable Development" booklet to all of your State Legislators, County Commissioners/ Superintendents and City Council members.
Tell all of your friends, co-workers and neighbors about Agenda 21 Sustainable Development and how it is destroying our country. The National Ocean Council is detrimental on so many levels and the time to act is now. If state and local officials refuse to stand up against this federal incursion, they must be thrown out of office in favor of representatives who support the Constitution and the Tenth Amendment.
Be sure to check back with www.MorphCity.com on July 30th to watch a special video presentation about how a local official stood up against encroachment by the federal government.
National Ocean Council
By Cassandra Anderson
July 28, 2010
Thirty states will be encroached upon by Obama's Executive Order establishing the National Ocean Council for control over America's oceans, coastlines and the Great Lakes. Under this new council, states' coastal jurisdictions will be subject to the United Nations' Law Of Sea Treaty (LOST) in this UN Agenda 21 program. America'a oceans and coastlines will be broken into 9 regions that include the North East, Mid-Atlantic, South Atlantic, the Gulf Coast, West Coast, the Great Lakes, Alaska, the Pacific Islands (including Hawaii) and the Caribbean.
Because of the decades of difficulty that the collectivists have had trying to ratify the Law Of Sea Treaty (LOST), Obama is sneaking it in through the back door, by way of this Executive Order establishing the Council. Because LOST is a treaty, Obama's Executive Order is not Constitutional as treaty ratification requires 2/3 approval from the Senate. Michael Shaw said that the Agenda 21 Convention on Biodiversity treaty of 1992 failed to pass Congress so it was executed through soft law and administratively on local levels, and Obama's Executive Order is a similar soft law tactic to enact the LOST treaty.
In fact, our Constitutional form of government is being completely destroyed because buried in the CLEAR Act (HR 3534) there is a provision for a new council to oversee the outer continental shelf- it appears that this Regional Outer Shelf Council will be part of the National Ocean Council. This means that if Congress makes the CLEAR Act into law, then the implementation of the UN Law Of Sea Treaty, as part of the National Ocean Council's agenda, will be "ratified" in a convoluted and stealth manner, in full opposition to the Constitution and its intent.
The excuse for this extreme action is because of the emergency in the Gulf of Mexico. Obama and Congress have always had the legal and military power to force BP Oil to take all necessary action to stop the gusher and clean the oil spew. While there is evidence that the problems in the Gulf have been a result of collusion and planned incompetence, it begs the question, why in world should America's oceans and resources be controlled by Obama appointees?
NATIONAL OCEAN COUNCIL MEMBERS:
John Holdren, Obama's science and technology advisor, is the co-chairman of this new council. He is also a depopulation enthusiast and advocates sterilization by way of using infertility drugs in water and food as well as forced abortions which he describes in his book "Ecoscience".
Ken Salazar, Secretary of the Department of Interior, and its subagency, MMS (Minerals Management Service) has authority over offshore drilling and responsibility for enforcing spill prevention measures. The Department of Interior's BLM (Bureau of Land Management) is the entity that controls federally managed land extending across 30% of America in 11 western states. Last week, Congressman Louie Gohmert said that Ken Salazar personally prevented drilling on land in Utah, Wyoming and Colorado, thereby also preventing energy independence. In addition, the federal lands have been grossly mismanaged and present fire dangers. The federal government is $3.7 billion in arrears for maintenance of the federally managed lands.
US Department of Agriculture Secretary Tom Vilsack, by way of the US Forestry Service and US Fish & Wildlife Service, has been complicit in the decline of our country's food independence. For example, US Fish & Wildlife (along with the Department of Commerce) shut the water off in California using Endangered Species Act; it was later proven that partially treated sewage was the primary culprit in killing the salmon and delta smelt that was previously blamed on farmers. This is phony environmentalism. The US Forestry Service has also misused the Endangered Species Act to limit farmers and ranchers. Remember that the USDA co-owns the Terminator Gene patent with Monsanto that makes seeds sterile.
Lisa Jackson is the EPA administrator who has threatened to impose 18,000 pages of new regulations to curb global warming which is based on lies, claiming that carbon dioxide is a danger to human health.
Department of Defense Secretary Robert Gates and Department of Homeland Security Secretary Janet Napolitano: it is unclear how these two federal appointees will enhance environmental 'sustainability' over oceans and coasts. Traditionally, national security threats (like the War on Terror) have been used by the federal government to take control of resources. For example, many years ago when the interstate highway systems were first being built, the Feds got in on the action by claiming that they were building a defense highway system, and they encroached into an area that belonged to the states. Interestingly, there were no overhead structures on highways originally because of the Feds' claim that large missiles would be transported on these "defense" highway systems.
Secretary of State Hilary Clinton, a leading globalist, is likely to plunge our country into international entanglements and subjugation, based on her past performance; an example is her support of the UN Small Arms Treaty, which is contrary to the Constitution.
Department of Energy Secretary Steven Chu and Department of Commerce Secretary Gary Locke are logical choices for this destructive council as some of the planned funding for this program will come from permits and leases (oil drilling leases, for example). These agencies will limit America's energy independence.
Click here to see the full list of the 24 member council.
THE SMOKING GUN:
Agenda 21 Sustainable Development is the overarching blueprint for depopulationa and total control, and the National Ocean Council is clearly an Agenda 21 program:
The National Ocean Council is headed by John Holdren, an avowed eugenicist which is selective breeding through brutal means like forced abortion.
The National Ocean Counci's own report (Coastal and Marine Spatial Planning, pg. 8) incorporates a section of the 1992 Rio Declaration which is an original UN Agenda 21 document!
In fact, the report says that it will be guided by the Rio Declaration in cases "Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." (pg. 8) This means that regulations will be imposed even if the science is not understood or if the science is based on global warming manipulated data.
The 3 primary tools of Agenda 21's phony environmentalism are global warming, water shortages and the Endangered Species Act; the National Ocean Council intends to exploit all of these tools to their full extent.
The National Ocean Council's main objective is to sink American sovereignty through the United Nations Law Of Sea Treaty (LOST) with the intended result of domination by the UN over our coasts and the Great Lakes. LOST originated in the 1970s as a wealth redistribution plan to benefit Third World countries. LOST sets rules for commercial activity beneath the high seas and establishes new international bureaucracies and a tribunal to interpret and apply rules to sea activity. And LOST can proceed with those rules, even against US objections! LOST threatens to complicate deep sea mining. LOST sets a precedent that US rights are dependent upon the approval of international entities. LOST also extends to ocean flowing rivers.
REGIONALISM:
Michael Shaw pointed out that non-elected councils are increasingly expanding their jurisdiction through air quality boards, water quality boards, sewer systems, transportation districts, metropolitan planning, etc. to gain control over resources. Often, large corporations and financial interests form Public- Private Partnerships with the government within these councils.
Breaking areas into regions and placing authority with non-elected councils is a Communist trick used to hijack resources, thereby usurping local and state power by re-zoning the areas that do have Constitutional authority. Appointed bureaucrats are untouchable because their jobs are not dependent upon serving the voting population. And they are usually inaccessible to the public and do not have to face those who are affected by their "insider" decisions. When state and local governments become corrupt, the public is able to confront them eye to eye, but distant bureaucrats can avoid accountability. Regionalism is used as a psychological tactic to intimidate state legislatures into creating the system for a new political and economic order.
Obama's Executive Order that has created the 9 new regions amounts to re-zoning, and his appointed bureaucrats are answerable only to him. In David Horton's testimony in 1978 on regionalism, he said that the State of Indiana made this declaration, "Neither the states nor Congress have ever granted authority to any branch or agency of the federal government to exercise regional control over the states." Horton further stated that Congress holds all legislative power that is granted in the Constitution, as opposed to Executive Orders that are not legislative. Therefore, Obama's Executive Order for re-zoning and appointing a governing body to usurp state and local power is Constitutionally invalid.
The public must become aware of state sovereignty and the Tenth Amendment to demand that state and local governments assert these Constitutional laws and principles.
COASTAL AND MARINE SPATIAL PLANNING REPORT:
This is a general overview of the new National Ocean Council's goals based on its 32-page report that uses indirect language and acronyms in order to confuse the public and local lawmakers. Depopulation advocates, globalists and collectivists, like John Holdren, faced opposition a few decades ago when they clearly expressed their objectives, so now documents are written in complicated and clouded language to fool those they wish to control.
This report states that the Council's jurisdiction will extend from the continental shelf to the coast AND additional inland areas will be involved. The National Ocean Council identifies "partners" as members of each regional planning body that will include federal, state, local and tribal authorities, with a top-down hierarchy of control.
The intentions of the Council are stated on page 8 of the report that include implementing LOST and other international treaties. The report also states that the Counci's plans shall be implemented by Executive Orders, in addition to federal and state laws. This section mentions 'global climate change' which is a new term used as a substitute for 'man made global warming' after manipulated data and lies were exposed in numerous global warming scandals. 'Climate change' is blamed for sea level rise and acidification of oceans; evidence exists that these are more global warming deceptions.
The stated goals of the Council include regulating investments, collaborating with unidentified international agencies, controlling public access to oceans and "protecting" ecosystems. This means that commerce and trade will be controlled by the Council, the UN will gain power over American oceans and the Great Lakes through UN subagencies, public access will be limited and the Endangered Species Act will be unleashed, with heavy regulations. Incidentally, the Endangered Species Act is based on 5 international treaties. It has never had a successful result: of the 60 species that have been de-listed, not a single species was saved as a result of any restrictions stemming from the Endangered Species Act!
The targeted areas for Endangered Species Act regulations are the the Great Lakes, the Gulf Coast, Chesapeake Bay, Puget Sound, South Florida and the San Francisco Bay (the Bay Delta is where the irrigation water for farmers was was cut off using the Endangered Species Act, causing food shortages, an increase in food imports and massive economic devastation).
While this report does not clearly outline how the National Ocean Council's schemes will be financed, regulatory permits for all activity on the water and mining (oil) leases will play a part, along with tax increases. The report does indicate that grants and assistance programs will be available so that state, local and tribal authorities will support the Council's "efforts". In other words, the Council will try to buy off the state and local governments to "collectively use" them for a base of support and influence. (pg. 28) Strings are always attached to federal money. The federal government and the Council are reliant on state and local governments for implementation through state and local legal authority, which means that state and local authorities hold the power to implement or refuse the Council's directives, especially under the Tenth Amendment.
However, the report does state that disputes will be settled by consensus, if consensus fails, then the decisions will ultimately be made by the President. He is Commander in Chief of the Navy and has the power of the military behind him. Further, the report indicates that legislative changes and more Executive Orders may be necessary to achieve control.
An important point is made on page 5, which states, "Strong partnerships among Federal, State, tribal and local authorities, and regional governance structures would be essential to a truly forward-looking, comprehensive CMSP effort." This means that the states, local governments and tribes have power. Our collectivist government needs the consent of the state, local and tribal authorities, to implement this scheme, otherwise, the feds wouldn't bother to include these Constitutional authorities. If the state, local and tribal authorities are aware of, and willing to act on their Constitutional authority, then they can limit this federal power grab through the Tenth Amendment.
The report further states that signing onto the Council's plan would be an "express commitment by the partners to act in accordance with the plan..." (pg. 20) Therefore, it is imperative that all of the states be aware of the Council's intended usurpation and carefully protect their Constitutional jurisdictions and sovereignty. There are 30 states that will be affected by this new council. (pg. 12)
The Council's strategy plan will go into effect immediately, fully developing Agenda 21 objectives and undue UN influence within 5 years. Interestingly, one article said that if state, local and tribal authorities choose not to participate in in writing the plans, the plans would be written without them. Therefore, it bears repeating that state and local governments must protect their Constitutional authority when dealing with the Council. The Constitutional authority that states and local governments have can only be taken if the power is given away.
SAVING OUR COUNTRY:
If your freedom is important to you, the most effective action that you can take is to e-mail this article and Michael Shaw's "Understanding Agenda 21 Sustainable Development" booklet to all of your State Legislators, County Commissioners/ Superintendents and City Council members.
Tell all of your friends, co-workers and neighbors about Agenda 21 Sustainable Development and how it is destroying our country. The National Ocean Council is detrimental on so many levels and the time to act is now. If state and local officials refuse to stand up against this federal incursion, they must be thrown out of office in favor of representatives who support the Constitution and the Tenth Amendment.
Be sure to check back with www.MorphCity.com on July 30th to watch a special video presentation about how a local official stood up against encroachment by the federal government.
One Month After The McDonald Decision
From National Review Online and The CATO Institute:
One Month after McDonald
by David Rittgers
David Rittgers is an attorney and legal-policy analyst at the Cato Institute.
Added to cato.org on July 29, 2010
This article appeared on National Review (Online) on July 29, 2010.
PRINT PAGE CITE THIS Sans Serif Serif Share with your friends:
ShareThisOne month ago, the Supreme Court held in McDonald v. City of Chicago that states, not just the federal government, are prevented from violating Americans' Second Amendment right to keep and bear arms. The Supreme Court did not, however, define the full scope of the right, nor the standard of review by which challenged statutes will be judged.
In other words: It ain't over yet. A number of pending lawsuits across the country will further shape how the Second Amendment will be applied.
The first lawsuit of note comes from Chicago. As soon as the Supreme Court struck down the city's handgun ban in McDonald, Mayor Richard Daley worked with the city council to pass a very restrictive gun-control regime to take the ban's place. The National Rifle Association promptly filed suit, challenging, among other things: a ban on having more than one "assembled and operable" firearm in the home at any time; a rule forbidding gun owners to carry their firearms in their own garages, porches, and places of business; and a policy outlawing gun shops and shooting ranges in the city in spite of the training and range time the city requires for obtaining a permit.
Why have rights at all if the government can turn them off at will?
California, which has long been the darling of gun-control groups for its heavy firearm restrictions, is also facing a day in court. Gun-show promoters have been litigating their right to have a show on Alameda County grounds, an action barred by a county ordinance. A three-judge panel decided last April that the Second Amendment applied to California, anticipating the conclusion in McDonald, but found that the ban on gun shows on county property was still constitutional.
The Ninth Circuit voted to re-hear the case en banc (that is, all eleven judges would review the decision of the three-judge panel), but in light of McDonald, that order has been rescinded and the case remanded to the original panel for reconsideration. Rescinding an en banc re-hearing is an unusual turn of events, but nothing follows the norm in this suit. The panel has asked for further briefing from the parties, indicating that it may reverse itself on the constitutionality of the gun-show ban.
Also, the Supreme Court has vacated a decision of the Second Circuit upholding New York's ban on nunchuks and remanded the case for reconsideration in light of its holding in McDonald. Though the McDonald case focused on firearms, the text of the Second Amendment encompasses "arms" in general, and the Second Circuit will provide some guidance on the constitutional protection of martial-arts weapons.
Just up the Hudson River, Alan Gura, the attorney who carried the day in the Heller and McDonald decisions, filed suit to challenge the discretionary permitting system for handgun carry in Westchester County, N.Y. At issue is whether permit applicants can constitutionally be required to show a "unique, heightened need for self-defense apart from the general public" in order to carry a gun. The Second Amendment allows for no such restriction on the right to bear arms, and by the time a need for self-defense arises — think, for example, of a woman who's being stalked — a potential victim needs to be able to carry a gun right now, not after pulling together paperwork and waiting for government approval.
The New York right-to-carry case joins a similar suit that Gura filed against the District of Columbia in the wake of the Heller decision. California guns activists have an existing lawsuit challenging the concealed-carry policies of Yolo and Sacramento counties that will now be reconsidered in light of the McDonald decision. At least one Wisconsin prosecutor has declared that he will no longer enforce the state's ban on concealed carry because of the recent Supreme Court action.
David Rittgers is an attorney and legal-policy analyst at the Cato Institute.
More by David RittgersYet another Alan Gura lawsuit is a challenge to North Carolina's emergency-powers statutes. In essence, whenever a state of emergency is declared at any level of government in the Tarheel State, firearms sales or transfers are outlawed, as is carrying a firearm off one's own premises (even for those with concealed-handgun permits). That doesn't sound unreasonable at first blush, but officials have declared at least a dozen emergencies since September 2004, usually encompassing the entire state. This is an on/off switch for an enumerated right. Why have rights at all if the government can turn them off at will?
The future of the scope of the Second Amendment is unclear, but McDonald has guaranteed that, at last, a liberty the Founders considered worthy of a constitutional amendment will be taken seriously in courts across the land.
One Month after McDonald
by David Rittgers
David Rittgers is an attorney and legal-policy analyst at the Cato Institute.
Added to cato.org on July 29, 2010
This article appeared on National Review (Online) on July 29, 2010.
PRINT PAGE CITE THIS Sans Serif Serif Share with your friends:
ShareThisOne month ago, the Supreme Court held in McDonald v. City of Chicago that states, not just the federal government, are prevented from violating Americans' Second Amendment right to keep and bear arms. The Supreme Court did not, however, define the full scope of the right, nor the standard of review by which challenged statutes will be judged.
In other words: It ain't over yet. A number of pending lawsuits across the country will further shape how the Second Amendment will be applied.
The first lawsuit of note comes from Chicago. As soon as the Supreme Court struck down the city's handgun ban in McDonald, Mayor Richard Daley worked with the city council to pass a very restrictive gun-control regime to take the ban's place. The National Rifle Association promptly filed suit, challenging, among other things: a ban on having more than one "assembled and operable" firearm in the home at any time; a rule forbidding gun owners to carry their firearms in their own garages, porches, and places of business; and a policy outlawing gun shops and shooting ranges in the city in spite of the training and range time the city requires for obtaining a permit.
Why have rights at all if the government can turn them off at will?
California, which has long been the darling of gun-control groups for its heavy firearm restrictions, is also facing a day in court. Gun-show promoters have been litigating their right to have a show on Alameda County grounds, an action barred by a county ordinance. A three-judge panel decided last April that the Second Amendment applied to California, anticipating the conclusion in McDonald, but found that the ban on gun shows on county property was still constitutional.
The Ninth Circuit voted to re-hear the case en banc (that is, all eleven judges would review the decision of the three-judge panel), but in light of McDonald, that order has been rescinded and the case remanded to the original panel for reconsideration. Rescinding an en banc re-hearing is an unusual turn of events, but nothing follows the norm in this suit. The panel has asked for further briefing from the parties, indicating that it may reverse itself on the constitutionality of the gun-show ban.
Also, the Supreme Court has vacated a decision of the Second Circuit upholding New York's ban on nunchuks and remanded the case for reconsideration in light of its holding in McDonald. Though the McDonald case focused on firearms, the text of the Second Amendment encompasses "arms" in general, and the Second Circuit will provide some guidance on the constitutional protection of martial-arts weapons.
Just up the Hudson River, Alan Gura, the attorney who carried the day in the Heller and McDonald decisions, filed suit to challenge the discretionary permitting system for handgun carry in Westchester County, N.Y. At issue is whether permit applicants can constitutionally be required to show a "unique, heightened need for self-defense apart from the general public" in order to carry a gun. The Second Amendment allows for no such restriction on the right to bear arms, and by the time a need for self-defense arises — think, for example, of a woman who's being stalked — a potential victim needs to be able to carry a gun right now, not after pulling together paperwork and waiting for government approval.
The New York right-to-carry case joins a similar suit that Gura filed against the District of Columbia in the wake of the Heller decision. California guns activists have an existing lawsuit challenging the concealed-carry policies of Yolo and Sacramento counties that will now be reconsidered in light of the McDonald decision. At least one Wisconsin prosecutor has declared that he will no longer enforce the state's ban on concealed carry because of the recent Supreme Court action.
David Rittgers is an attorney and legal-policy analyst at the Cato Institute.
More by David RittgersYet another Alan Gura lawsuit is a challenge to North Carolina's emergency-powers statutes. In essence, whenever a state of emergency is declared at any level of government in the Tarheel State, firearms sales or transfers are outlawed, as is carrying a firearm off one's own premises (even for those with concealed-handgun permits). That doesn't sound unreasonable at first blush, but officials have declared at least a dozen emergencies since September 2004, usually encompassing the entire state. This is an on/off switch for an enumerated right. Why have rights at all if the government can turn them off at will?
The future of the scope of the Second Amendment is unclear, but McDonald has guaranteed that, at last, a liberty the Founders considered worthy of a constitutional amendment will be taken seriously in courts across the land.
New FBI Access To Email And The Internet Causes Concerns
from Newsmax:
Top News
FBI Access to E-mail and Web Records Raises Fears
Friday, 30 Jul 2010 06:48 AM Article Font Size
Invasion of privacy in the Internet age. Expanding the reach of law enforcement to snoop on e-mail traffic or on Web surfing. Those are among the criticisms being aimed at the FBI as it tries to update a key surveillance law.
With its proposed amendment, is the Obama administration merely clarifying a statute or expanding it? Only time and a suddenly on guard Congress will tell.
Federal law requires communications providers to produce records in counterintelligence investigations to the FBI, which doesn't need a judge's approval and court order to get them.
They can be obtained merely with the signature of a special agent in charge of any FBI field office and there is no need even for a suspicion of wrongdoing, merely that the records would be relevant in a counterintelligence or counterterrorism investigation. The person whose records the government wants doesn't even need to be a suspect.
The bureau's use of these so-called national security letters to gather information has a checkered history.
The bureau engaged in widespread and serious misuse of its authority to issue the letters, illegally collecting data from Americans and foreigners, the Justice Department's inspector general concluded in 2007. The bureau issued 192,499 national security letter requests from 2003 to 2006.
Weathering that controversy, the FBI has continued its reliance on the letters to gather information from telephone companies, banks, credit bureaus and other businesses with personal records about their customers or subscribers — and Internet service providers.
That last source is the focus of the Justice Department's push to get Congress to modify the law.
The law already requires Internet service providers to produce the records, said Dean Boyd, a spokesman for the Justice Department's national security division. But he said as written it also causes confusion and the potential for unnecessary litigation as some Internet companies have argued they are not always obligated to comply with the FBI requests.
A key Democrat on Capitol Hill, Senate Judiciary Committee chairman Patrick Leahy of Vermont, wants a timeout.
The administration's proposal to change the Electronic Communications Privacy Act "raises serious privacy and civil liberties concerns," Leahy said Thursday in a statement.
"While the government should have the tools that it needs to keep us safe, American citizens should also have protections against improper intrusions into their private electronic communications and online transactions," said Leahy, who plans hearings in the fall on this and other issues involving the law.
Critics are lined up in opposition to what the Obama administration wants to do.
"The FBI is playing a shell game," says Al Gidari, whose clients have included major online companies, wireless service providers and their industry association.
"This is a huge expansion" of the FBI's authority "and burying it this way in the intelligence authorization bill is really intended to bury it from scrutiny," Gidari added.
Boyd, the Justice spokesman, said the changes being proposed will not allow the government to obtain or collect new categories of information; rather it simply seeks to clarify what Congress intended when the statute was amended in 1993, he argued.
Critics, however, point to a 2008 opinion by the Justice Department's Office of Legal Counsel which found that the FBI's reach with national security letters extends only as far as getting a person's name, address, the period in which they were a customer and the numbers dialed on a telephone or to that phone.
The problem the FBI has been having is that some providers, relying on the 2008 Justice opinion — issued during the Bush administration — have refused to turn over Internet records such as information about who a person e-mails and who has e-mailed them and information about a person's Web surfing history.
To deal with the issue, there's no need to change the law since the FBI has the authority to obtain the same information with a court order issued under a broad section of the Patriot Act, said Gregory Nojeim, director of the Project on Freedom, Security and Technology at the Center for Democracy and Technology, a nonprofit Internet privacy group.
The critics say the proposed change would allow the FBI to remove federal judges and courts from scrutiny of its requests for sensitive information.
"The implications of the proposal are that no court is deciding whether even that low standard of `relevance' is met," said Nojeim. "The FBI uses national security letters to find not just who the target of an investigation e-mailed, but also who those people e-mailed and who e-mailed them."
© Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Top News
FBI Access to E-mail and Web Records Raises Fears
Friday, 30 Jul 2010 06:48 AM Article Font Size
Invasion of privacy in the Internet age. Expanding the reach of law enforcement to snoop on e-mail traffic or on Web surfing. Those are among the criticisms being aimed at the FBI as it tries to update a key surveillance law.
With its proposed amendment, is the Obama administration merely clarifying a statute or expanding it? Only time and a suddenly on guard Congress will tell.
Federal law requires communications providers to produce records in counterintelligence investigations to the FBI, which doesn't need a judge's approval and court order to get them.
They can be obtained merely with the signature of a special agent in charge of any FBI field office and there is no need even for a suspicion of wrongdoing, merely that the records would be relevant in a counterintelligence or counterterrorism investigation. The person whose records the government wants doesn't even need to be a suspect.
The bureau's use of these so-called national security letters to gather information has a checkered history.
The bureau engaged in widespread and serious misuse of its authority to issue the letters, illegally collecting data from Americans and foreigners, the Justice Department's inspector general concluded in 2007. The bureau issued 192,499 national security letter requests from 2003 to 2006.
Weathering that controversy, the FBI has continued its reliance on the letters to gather information from telephone companies, banks, credit bureaus and other businesses with personal records about their customers or subscribers — and Internet service providers.
That last source is the focus of the Justice Department's push to get Congress to modify the law.
The law already requires Internet service providers to produce the records, said Dean Boyd, a spokesman for the Justice Department's national security division. But he said as written it also causes confusion and the potential for unnecessary litigation as some Internet companies have argued they are not always obligated to comply with the FBI requests.
A key Democrat on Capitol Hill, Senate Judiciary Committee chairman Patrick Leahy of Vermont, wants a timeout.
The administration's proposal to change the Electronic Communications Privacy Act "raises serious privacy and civil liberties concerns," Leahy said Thursday in a statement.
"While the government should have the tools that it needs to keep us safe, American citizens should also have protections against improper intrusions into their private electronic communications and online transactions," said Leahy, who plans hearings in the fall on this and other issues involving the law.
Critics are lined up in opposition to what the Obama administration wants to do.
"The FBI is playing a shell game," says Al Gidari, whose clients have included major online companies, wireless service providers and their industry association.
"This is a huge expansion" of the FBI's authority "and burying it this way in the intelligence authorization bill is really intended to bury it from scrutiny," Gidari added.
Boyd, the Justice spokesman, said the changes being proposed will not allow the government to obtain or collect new categories of information; rather it simply seeks to clarify what Congress intended when the statute was amended in 1993, he argued.
Critics, however, point to a 2008 opinion by the Justice Department's Office of Legal Counsel which found that the FBI's reach with national security letters extends only as far as getting a person's name, address, the period in which they were a customer and the numbers dialed on a telephone or to that phone.
The problem the FBI has been having is that some providers, relying on the 2008 Justice opinion — issued during the Bush administration — have refused to turn over Internet records such as information about who a person e-mails and who has e-mailed them and information about a person's Web surfing history.
To deal with the issue, there's no need to change the law since the FBI has the authority to obtain the same information with a court order issued under a broad section of the Patriot Act, said Gregory Nojeim, director of the Project on Freedom, Security and Technology at the Center for Democracy and Technology, a nonprofit Internet privacy group.
The critics say the proposed change would allow the FBI to remove federal judges and courts from scrutiny of its requests for sensitive information.
"The implications of the proposal are that no court is deciding whether even that low standard of `relevance' is met," said Nojeim. "The FBI uses national security letters to find not just who the target of an investigation e-mailed, but also who those people e-mailed and who e-mailed them."
© Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Consumer Online Privacy
From The Heritage Foundation:
Testimony of
Jim Harper,
Director of Information Policy Studies
The Cato Institute, Washington D.C.
before the
Committee on Commerce, Science, and Transportation
United States Senate
Consumer Online Privacy
July 27, 2010
Executive Summary
Privacy is a complicated human interest. People use the word "privacy" to refer to many different things, but its strongest sense is control of personal information, which exists when people have legal power to control information and when they exercise that control consistent with their interests and values.
Direct privacy legislation or regulation is unlikely to improve on the status quo. Over decades, a batch of policies referred to as "fair information practices" have failed to take hold because of their complexity and internal inconsistencies. Even modest regulation like mandated privacy notices have not produced meaningful improvements in privacy. Consumers generally do not read privacy policies and they either do not consider privacy much of the time, or they value other things more than privacy when they interact online.
The online medium will take other forms with changing times, and regulations aimed at an Internet dominated by the World Wide Web will not work with future uses of the Internet. Privacy regulations that work "too well" may make consumers worse off overall, not only by limiting their access to content, but by giving super-normal profits to today's leading Internet companies and by discouraging consumer-friendly innovations.
The "online" and "offline" worlds are collapsing rapidly together, and consumers do not have separate privacy interests for one and the other. Likewise, people do not have privacy interests in their roles as consumers that are separate from their interests as citizens. If the federal government is going to work on privacy protection, it should start by getting its own privacy house in order.
--------------------------------------------------------------------------------
Chairman Rockefeller, Ranking Member Hutchison, and members of the committee, thank you for inviting me to address your hearing on "Consumer Online Privacy."
My name is Jim Harper, and I am director of information policy studies at the Cato Institute. In that role, I study and write about the difficult problems of adapting law and policy to the challenges of the information age. Cato is a market liberal, or libertarian, think-tank, and I pay special attention to preserving and restoring our nation's founding traditions of individual liberty, limited government, free markets, peace, and the rule of law.
My primary focus is on privacy and civil liberties, and I serve as an advisor to the Department of Homeland Security as a member of its Data Integrity and Privacy Advisory Committee. I am not a technologist, but a lawyer familiar with technology issues. As a former committee counsel in both the House and Senate, I understand lawmaking and regulatory processes related to technology and privacy. I have maintained a web site called Privacilla.org since 2000, cataloguing many dimensions of the privacy issue, and I also maintain an online federal legislative resource called WashingtonWatch.com, which has had over 1.6 million visitors in the last year.
What is Privacy?
Your hearing to explore consumer online privacy is welcome. There are many dimensions to privacy, and it is wise to examine all of them, making yourselves aware of the plethora of issues and considerations before turning to legislation or regulation.
People use the word "privacy" to describe many concerns in the modern world, including fairness, personal security, seclusion, and autonomy or liberty. Given all those salutary meanings, everyone wants "privacy," of course. Few concepts have been discussed so much without ever being solidly defined. But confusion about the meaning of the word makes legislation or regulation aimed at privacy difficult.
"Privacy" sometimes refers to the interest violated when a person's sense of seclusion or repose is upended. Telephone calls during the dinner hour, for example, spam emails, and — historically — the quartering of troops in private homes undermine privacy and the vaunted "right to be let alone."
For some, it is marketing that offends privacy — or at least targeted marketing based on demographic or specific information about consumers. Many people feel something intrinsic to individual personality is under attack when people are categorized, labeled, filed, and objectified for commerce based on data about them.
This is particularly true when incomplete data fails to paint an accurate picture. The worst denial of personality occurs in the marketing area when data and logic get it wrong, serving inappropriate marketing communications to hapless consumers. A couple who recently lost their baby receives a promotion for diapers or children's toys, for example. Or mail for a deceased parent continues coming long after his or her passing. In the informal sector, communities sometimes attack individuals because of the inaccurate picture gossip paints on the powerful medium of the Internet.
The "privacy" damage is tangible when credit bureaus and other reputation providers paint an incomplete or wrong picture. Employers and credit issuers harm individual consumers when they deny people work or credit based on bad data or bad decision rules.
Other kinds of "privacy" violations occur when criminals acquire personal information and use it for their malign purposes. The scourge of identity theft is a well known "privacy" problem. Drivers Privacy Protection Acts passed in many state legislatures and in the U.S. Congress after actress Rebecca Schaeffer was murdered in 1989. Her stalker got her residence information from the California Department of Motor Vehicles. In a similar notable incident a decade later, Vermont murderer Liam Youens used a data broker to gather information as part of an Internet-advertised obsession with the young woman he killed.
"Privacy" is also under fire when information demands stand between people and their freedom to do as they please. Why on earth should a person share a phone number with a technology retailer when he or she buys batteries? The U.S. Department of Homeland Security has worked assiduously in what is now called the "Secure Flight" program to condition air travel on the provision of accurate identity information to the government, raising the privacy costs of otherwise free movement.
Laws banning or limiting medical procedures dealing with reproduction offend "privacy" in another sense of the word. There are a lot of privacy problems out there, and many of them blend together.
Privacy as Control of Personal Information
The strongest and most relevant sense of the word "privacy," which I will focus on here, though, is its "control" sense — privacy as control over personal information. Privacy in this sense is threatened by the Internet, which is an unusual new medium for many people over the age of eighteen.
In his seminal 1967 book Privacy and Freedom, Alan Westin characterized privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." A more precise, legalistic definition of privacy in the control sense is: the subjective condition people experience when they have power to control information about themselves and when they have exercised that power consistent with their interests and values. The "control" sense of privacy alone has many nuances, and I will parse them here briefly.
Importantly, privacy is a subjective condition. It is individual and personal. One person cannot decide for another what his or her sense of privacy is or should be.
To illustrate this, one has only to make a few comparisons: Some Americans are very reluctant to share their political beliefs, refusing to divulge any of their leanings or the votes they have cast. They keep their politics private. Their neighbors may post yard signs, wear brightly colored pins, and go door-to-door to show affiliation with a political party or candidate. The latter have a sense of privacy that does not require withholding information about their politics.
Health information is often deemed intensely private. Many people closely guard it, sharing it only with doctors, close relatives, and loved ones. Others consent to have their conditions, surgeries, and treatments broadcast on national television and the Internet to help others in the same situation. More commonly, they relish the attention, flowers, and cards they receive when an illness or injury is publicized. Privacy varies in thousands of ways from individual to individual and from circumstance to circumstance.
An important conclusion flows from the observation that privacy is subjective: government regulation in the name of privacy can be based only on guesses about what "privacy" should look like. Such rules can only ape the privacy-protecting decisions that millions of consumers make in billions of daily actions, inactions, transactions, and refusals. Americans make their highly individual privacy judgments based on culture, upbringing, experience, and the individualized costs and benefits of interacting and sharing information.
The best way to protect true privacy is to leave decisions about how personal information is used to the people affected. Regulatory mandates that take decision-making power away from people will prevent them striking the balances that make them the best off they can be. Sometimes it is entirely rational and sensible to share information.
At its heart, privacy is a product of autonomy and personal responsibility. Only empowered, knowledgeable citizens can formulate and protect true privacy for themselves, just as they individually pursue other subjective conditions, like happiness, piety, or success.
The Role of Law
The legal environment determines whether people have the power to control information about themselves. Law has dual, conflicting effects on privacy: Much law protects the privacy-enhancing decisions people make. Other laws undermine individuals' power to control information.
Various laws foster privacy by enforcing individuals' privacy-protecting decisions. Contract law, for example, allows consumers to enter into enforceable agreements that restrict the sharing of information involved in, or derived from, transactions.
Thanks to contract, one person may buy foot powder from another and elicit as part of the deal an enforceable promise never to tell another soul about the purchase. In addition to explicit terms, privacy-protecting confidentiality has long been an implied term in many contracts for professional and fiduciary services, like law, medicine, and financial services. Alas, legislation and regulation of recent vintage have undermined those protections.
Many laws protect privacy in other areas. Real property law and the law of trespass mean that people have legal backing when they retreat into their homes, close their doors, and pull their curtains to prevent others from seeing what goes on within. The law of battery means that people may put on clothes and have all the assurance law can give that others will not remove their clothing and reveal the appearance of their bodies without permission.
Whereas most laws protect privacy indirectly, a body of U.S. state law protects privacy directly. The privacy torts provide baseline protection for privacy by giving a cause of action to anyone whose privacy is invaded in any of four ways.
The four privacy causes of action, available in nearly every state, are:
•Intrusion upon seclusion or solitude, or into private affairs;
•Public disclosure of embarrassing private facts;
•Publicity that places a person in a false light in the public eye; and
•Appropriation of one's name or likeness.
While those torts do not mesh cleanly with privacy as defined here, they are established, baseline, privacy-protecting law.
Law is essential for protecting privacy, but much legislation plays a significant role in undermining privacy. Dozens of regulatory, tax, and entitlement programs deprive citizens of the ability to shield information from others. You need only look at the Internal Revenue Service's Form 1040 and related tax forms to see that.
Consumer Knowledge and Choice
I wrote above about the role of personal responsibility in privacy protection. Perhaps the most important, but elusive, part of privacy protection is consumers' exercise of power over information about themselves consistent with their interests and values. This requires consumers and citizens to be aware of the effects their behavior will have on exposure of information about them.
Technology and the world of commerce are rapidly changing, and personal information is both ubiquitous and mercurial. Unfortunately, there is no horn that sounds when consumers are sufficiently aware, or when their preferences are being honored. But study of other, more familiar, circumstances reveals how individuals have traditionally protected privacy.
Consider privacy protection in the physical world. For millennia, humans have accommodated themselves to the fact that personal information travels through space and air. Without understanding how photons work, people know that hiding the appearance of their bodies requires them to put on clothes. Without understanding sound waves, people know that keeping what they say from others requires them to lower their voices.
From birth, humans train to protect privacy in the "natural" environment. Over millions of years, humans, animals, and even plants have developed elaborate rules and rituals of information sharing and information hiding based on the media of light and sound.
Tinkering with these rules and rituals today would be absurd. Imagine, for instance, a privacy law that made it illegal to observe and talk about a person who appeared naked in public without giving the nudist a privacy notice and the opportunity to object. People who lacked the responsibility to put on clothes might be able to sue people careless enough to look at them and recount what they saw. A rule like that would be ridiculous.
The correct approach is for consumers to be educated about what they reveal when they interact online and in business so that they know to wear the electronic and commercial equivalents of clothing.
Of all the online privacy concerns, perhaps the most fretting has been done about "behavioral advertising" — sometimes referred to as "psychographic profiling" to get us really worked up. What is truly shocking about this problem, though, is that the remedy for most of it is so utterly simple: exercising control over the cookies in one's browser.
Cookies are small text files that a web site will ask to place in the memory of computers that visit it. Many cookies have distinct strings of characters in them that allow the web site to "recognize" the computer when it visits the site again. When a single domain places content across the web as a "third party" — something many ad networks do — it can recognize the same computer many places and gain a sense of the interests of the user.
The solution is cookie control: In the major browsers (Firefox and Internet Explorer), one must simply go to the "Tools" pull-down menu, select "Options," then click on the "Privacy" tab to customize one's cookie settings. In Firefox, one can decline to accept all third-party cookies (shown inset), neutering the cookie-based data collection done by ad networks. In Internet Explorer, one can block all cookies, block all third-party cookies, or even choose to be prompted each time a cookie is offered.
Again, consumers educated about what they reveal when they interact online can make decisions about how to behave that will protect privacy much better — in all online contexts — than consumers unaware of how the world around them works.
Can Direct Regulation Protect Privacy Better?
Above, I wrote about how law protects people's privacy-protecting decisions. This unfortunately leaves them with the responsibility of making those decisions. Naturally, most privacy advocates — myself included — believe that people do not do enough to protect their privacy. Consciously or not, people seem to prioritize the short-term benefits of sharing personal information over the long-term costs to their privacy.
This poses the question: Can direct regulation protect consumers privacy better than they can protect themselves?
There is a decades-long history behind principles aimed at protect privacy and related interests, principles that are often put forward as a framework for legislative or regulatory directives.
In the early 1970s, a group called "The Secretary's Advisory Committee on Automated Personal Data Systems" within the Department of Health, Education, and Welfare did an important study of record-keeping practices in the computer age. The intellectual content of its report, commonly known as the "HEW Report," formed much of the basis of the Privacy Act of 1974. The report dealt extensively with the use of the Social Security Number as the issues stood at that time.
The HEW report advocated the following "fair information practices":
•There must be no personal-data record-keeping systems whose very existence is secret.
•There must be a way for an individual, to find out what information about him is in a record and how it is used.
•There must be a way for an individual to prevent information about him obtained for one purpose from being used or made available for other purposes without his consent.
•There must be a way for an individual to correct or amend a record of identifiable information about him.
•Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take reasonable precautions to prevent misuse of the data.
These things sound wonderful in the abstract, but their relevance, worthiness, and cost-justifications vary widely from circumstance to circumstance.
In 1980, the Organization for Economic Cooperation and Development (OECD) issued similar, if more detailed guidelines. The OECD Guidelines involve eight principles, which in different variations are often touted as "fair information practices" or "fair information practice principles."
They include a "Collection Limitation Principle," a "Data Quality Principle," a "Purpose Specification Principle," a "Use Limitation Principle," a "Security Safeguards Principle," an "Openness Principle," an "Individual Participation Principle," and an "Accountability Principle." The full OECD principles, in their sprawling glory, are reproduced in a footnote below.
In a 2000 report, the Federal Trade Commission came out with a relatively briefer list of "fair information practices" (notice, choice, access, and security) and asked Congress for authority to impose them on the businesses of the country, even though a committee convened by the FTC could not reconcile the inherent tensions between access and security. Congress declined to take the FTC's advice.
These examples illustrate one of the problems with the idea of "baseline privacy regulation" for the Internet that has been a consistent call of many for over a decade. There are many good ideas and good practices described in the HEW Report, the OECD Guidelines, and in various other iterations of "fair information practices," but tensions among the principles and variations in their applicability to different circumstances make "FIPs" a poor guide for smart legislating.
"Fair information practices" remain largely aspirational after nearly 40 years, and where they have been implemented, privacy has not blossomed. The principal example is the Privacy Act of 1974, which has done little to give American citizens control over information the government collects. It is shot through with exceptions, and it is largely a paper tiger.
The Fair Credit Reporting Act has guided the development of the credit reporting industry for four decades, while insulating credit bureaus from state tort laws. During that period, the industry has become highly cartelized, consisting of three players (as discussed below, a typical consequence of regulatory barriers to entry). It has failed to innovate and become the reputation and identity service that the world of e-commerce could use. And — most importantly for these purposes — credit reporting is a consumer-unfriendly industry. Rather than working with consumers to develop mutually beneficial personal data repositories, the credit reporting industry serves its financial industry partners first, federal regulators second, and consumers as a rather distant afterthought.
The privacy regulations implemented under the Health Insurance Portability and Accountability Act are sometimes touted as reflecting "fair information practices." (With their breadth, any good data practice is arguably a FIP.) But health privacy has not materialized since Congress shrugged its shoulders and handed the privacy problem to the Department of Health and Human Services. Pre-HIPAA studies showing that patients sometimes avoided treatment due to privacy worries have not been matched by post-HIPAA studies showing that consumers confident of health privacy are getting medical care they would not have gotten.
Fair information practices are widely touted as models for direct regulation that would protect privacy. But the examples we have of FIP-style laws and regulations have not delivered privacy. Privacy protection is hard, and it is not amenable to top-down solutions.
Keeping it Simple: What About Privacy Notice?
If the full suite of "fair information practices" is too intricate and internally inconsistent to produce a flowering of privacy across the land, perhaps some minimal privacy regulation would move the ball in the right direction. Mandated privacy notices are widely regarded as a step that would put consumers in a position to protect privacy themselves.
One would think. But they haven't.
A decade ago, market pressure spurred commercial web sites to adopt and publish privacy policies. The FTC found in its 2000 report that 100% of the most popular sites on the web and 88% of randomly sampled sites had privacy disclosures of some kind. This was in the absence of any regulation requiring notice; it was simply the product of market-based consensus that privacy notice was an appropriate business practice.
However, over the ensuing decade it has become clear that privacy notices do not materially improve consumers' privacy practices. The Federal Trade Commission, other agencies, researchers like Lorrie Faith Cranor at Carnegie Mellon University's "CUPS" laboratory, and others are diligently pursuing strategies to make notices effective at communicating privacy information to consumers in the hope that they will act on that information. But none has yet borne fruit.
The FTC and seven other regulators recently revealed a new, "short" financial privacy notice (required annually of financial services providers by the Gramm-Leach-Bliley Act) that they say "will make it easier for consumers to understand how financial institutions collect and share information about consumers." Perhaps privacy awareness will flourish in the financial services area under this new regime, validating the widely derided privacy notices that clutter Americans' mailboxes. More likely, artificial "notice" will continue to lose currency as a tool for generating consumer focus on privacy.
Nutrition labels, the beloved model for privacy notices, have failed to stem the tide of fat washing over Americans' waistlines. Consumer behavior is difficult to control, as it should be in a free country.
Notice has other challenges. If it ever was, the "online" environment is no longer confined to a series of web pages, of which one could contain a universal privacy policy. The Internet is amenable to endless new protocols and forms of communication, which may defy the idea that there is somewhere for a notice to be located.
Even the growth of handheld devices — an incremental step in comparison to what may come in the future — challenges the idea of notice. Given the very small screen space of many devices, where is a notice to be located? And where is a notice to be located when there isn't a hypertext "link" structure to follow?
A hint of how unsuited privacy notices are to the future of the Internet lies in a dust-up about Google's privacy notice that occurred in mid-2008. A California law passed in 2003 requires web sites to have privacy policies linked to from their home pages. At some point, privacy advocates noticed that Google did not have such a link. Access to Google's industry-leading "Privacy Center" was accessible by doing a search on any number of terms or phrases, such as: What is Google's privacy policy?
Google, after all, is a search engine. In fact, it is the search engine that augured the decline of the Internet "portal" in favor of more fluid, search-based entrée to the web. Yet the California law requires a portal-style link, something that Google agonized over, being very proud of their very clean home page. Google now has a privacy link on its home page. It has cured its online paperwork violation.
As this story illustrates, Americans are not going on the web through portals any more. Americans are not going "online" sitting at computers looking at web pages any more. There is no end to the protocols that people may use to communicate on the Internet, and a notice regime designed for the World Wide Web so popular in the decade just past will fail to reach people in the decades to come.
What Does "Online" Mean Anyway? And Why Is It Important?
It is important to consider changes in technology of a different kind, particularly the vanishing border between "online" and "offline." As I deliver my oral testimony to the committee today, for example, I will be nominally "offline." However, audio and video of my presentation may be streamed live over the Internet or recorded and posted on the committee's web site or elsewhere. Reporters and researchers may take snippets of what I say and weave them into their work, posting those works online.
The phone in my pocket will be signaling its whereabouts (and inferentially mine) to nearby cell towers. Video of me entering, walking around inside, and leaving the Russell building may be captured and stored by the Capitol Police. Should the need arise, they may move this video into permanent storage.
There are privacy consequences from all these things. More than others, I suppose, I knowingly and willingly encounter privacy loss in order to be here and speak to you.
But what is the difference between the privacy consequences of this "offline" behavior and "online" behavior. Why should special privacy protections kick in when one formally sits down in front of a computer or uses a handheld device to go "online" if so much of "offline" life means the same thing?
The distinction between online and offline is blurring, and legislation or regulation aimed at protecting consumers "online" could create strange imbalances between different spheres of life. Consumers do not have a set of privacy interests that applies to the "online" world and another set that applies "offline."
To address online privacy alone is to miss the mark. This is not to say that the flesh-and-blood world should have privacy regulations like those that have been dreamed up for the Internet. Rather, privacy on the Internet might better be produced the way it is in the "real" world, by people aware of the consequences of their behavior acting in their own best interests.
Privacy Regulation Might Also Work "Too Well"
Consumer privacy legislation and regulation might fail because they miss new protocols or technologies, uses of the Internet that are not web-based, for example. But there is an equally plausible likelihood that privacy regulation works too well, in a couple of different senses.
Privacy regulation that works "too well" would give people more privacy than is optimal, making consumers worse off overall. Consumers have interests not just in privacy, but also in publicity, access to content, customization, convenience, low prices, and so on. Many of these interests are in tension with privacy, and giving consumers privacy at the cost of other things they prefer is not a good outcome.
The dominant model for producing Internet content — all the interaction, commentary, news, imagery, and entertainment that has the Internet thriving — is advertising support. Many of the most popular services and platforms are "free" because they host advertisements directed at their visitors and users. Part of the reason they can support themselves with advertising is because they have good information about users that allow ads to be appropriately targeted. It is a fact that well-targeted ads are more valuable than less-well-targeted ads.
This is important to note: Most web-based businesses do not "sell" information about their users. In targeted online advertising, the business model is generally to sell advertisers access to people ("eyeballs") based on their demographics. It is not to sell individuals' personal and contact info. Doing the latter would undercut the advertising business model and the profitability of the web sites carrying the advertising.
If privacy regulation "blinded" sites and platforms to relevant information about their visitors, the advertising-supported model for Internet content would likely be degraded. Consumers would be worse off — entombed by an excess of privacy when their preferences would be to have more content and more interaction than regulation allows advertising to support.
If the Federal Trade Commission's recommendations for "notice, choice, access, and security" had been fully implemented in 2000, for example, it is doubtful that Google would have had the same success it has had over the last decade. It might be a decent, struggling search engine today. But, unable to generate the kind of income it does, the quality of search it produces might be lower, and it may not have had the assets to produce and support fascinating and useful products like Gmail, Google Maps, Google Docs, and the literally dozens of author products it provides consumers.
Not having these things at our fingertips is difficult to imagine — it is much easier to assume that the Google juggernaut was fated from the beginning — but the rise of Google and all the access to information it gives us was contingent on a set of circumstances that allowed it to target ads to visitors in a highly customized and — to some — privacy-dubious way.
As a thought experiment, imagine taking away Google, Facebook, Apple's suite of consumer electronics (and the app universe that has sprung up within it), and the interactivity that AT&T facilitates. Consumers would rightly howl at the loss of richness to their lives, newly darkened by privacy. And we would all be worse off as the economy and society were starved of access to information.
All this is just to show that trading on personal information can make consumers better off overall. It is not to say that Google or any other company is the be-all and end-all, or that public policy should do anything to "prefer" any company. In fact, the other way that privacy regulation might work "too well" is by giving today's leading firms an advantage against future competitors.
A "barrier to entry" is something that prevents competition from entering a market. Barriers to entry often allow incumbents (like the established companies joining me at the witness table today) to charge higher prices and make greater profits than they otherwise would. Common barriers to entry (fair or unfair) include customer loyalty, economies of scale, control of intellectual property, and network effects, to name a few.
Government regulation can act as a barrier to entry in a few different ways. Aside from direct regulation of entry through licensing or grants of monopoly (issues not relevant here), incumbent firms can comply with regulations at a lower cost per sales unit. With a staff of lawyers already in place, the cost per customer of interpreting and applying any regulation are lower for large firms. Whether regulation is merited and tailored or not, small competitors "pay more" to comply with it. Regulation impedes their efforts to challenge established firms.
Established firms can strengthen this dynamic by taking part in crafting legislation and regulation. Their lobbyists, lawyers, and interest-group representatives — the good people gathered at this hearing today — will crowd around and work to protect their clients' interests in whatever comes out of the drafting process, here in Congress and at whatever agency implements any new law. Small, future competitors — unrepresented — will have no say, and new ways of doing business those competitors might have introduced may be foreclosed by regulation congenial to today's winners.
In his paper, The Durable Internet, my colleague, Cato adjunct fellow Timothy B. Lee, provides a useful history of how regulatory agencies have historically been turned to protecting the companies they are supposed to regulate. This would occur if the FCC were to regulate Internet service under a "net neutrality" regulation regime. It would occur if a federal agency were tasked with protecting privacy. It appears to have happened with the Minerals Management Service. The dynamic of "agency capture" is a mainstay of the regulatory studies literature.
Returning to the example of Google and the FTC's proposal for comprehensive regulation a decade ago: Had Congress given the FTC authority to impose broad privacy/fair information practice regulations, companies like Microsoft and Yahoo! may have turned the regulations to their favor. Today, the company the produces that most popular operating system might still be the most powerful player, and we might still be accessing the web through a portal. Consumers would be worse off for it.
For all the benefits today's leading companies provide, there is no reason they should not be subjected to as much competition as our public policy can allow. The spur of competition benefits consumers by lowering prices and driving innovations. Privacy regulation might work "too well" for them, locking in competitive advantages that turn away competition and allow them super-normal profits.
Comparisons between existing companies and future competitors are one thing. But a major defect of most proposals for privacy protection are their bald omission of an entire category of privacy threat: governments.
Privacy for Consumers But Not for Citizens?
Just as people do not have one set of privacy interests for the online world and one for offline, they do not have one set of privacy interests for commerce and another set for government. The privacy protections Americans have as consumers should be made available to them as citizens.
Indeed, given the unique powers of governments — to take life and liberty — Americans should have greater privacy protections from government than they do from private sector entities.
Governments thrive on information about people. Personal information allows governments to serve their citizenry better, to collect taxes, and to enforce laws and regulations. But governments stand in a very different position to personal information than businesses or individuals. Governments have the power to take and use information without permission. And there is little recourse against governments when they use information in ways that are harmful or objectionable.
In the modern welfare state, governments use copious amounts of information to serve their people. A program to provide medical care, for example, requires the government to collect a beneficiary's name, address, telephone number, sex, age, income level, medical condition, medical history, providers' names, and much more.
Governments also use personal information to collect taxes. This requires massive collections of information without regard to whether an individual views it as private: name, address, phone number, Social Security number, income, occupation, marital status, investment transactions, home ownership, medical expenses, purchases, foreign assets. The list is very, very long.
A third use government makes of personal information is to investigate crime and enforce laws and regulations. Governments' ability to do these things correlates directly to the amount of information they can collect about where people go, what they do, what they say, to whom they say it, what they own, what they think, and so on. We rely on government to investigate wrongdoing by examining information that is often regarded as private in the hands of the innocent. It is a serious and legitimate concern of civil libertarians that government collects too much information about the innocent in order to reach the guilty. The incentives that governments face all point toward greater collection and use of personal information about citizens. This predisposes them to violate privacy.
Yet "consumer privacy" bills planned and introduced in the current Congress do nothing to protect Americans' privacy from government. The leading proposals in the House — Rep. Boucher's (D-VA) draft legislation and H.R. 5777, the "BEST PRACTICES Act," introduced by Rep. Rush (D-IL) — simply exclude the federal government from their provisions.
In fairness, there may be jurisdictional reasons for these exemptions, but the hypocrisy would be a little too rank if the federal government were to impose privacy regulations on the private sector while its own profligacy with citizens' information continues.
If there is to be privacy legislation, the U.S. Congress should demonstrate the commitment of the federal government to getting its own privacy house in order. The federal government should practice what it preaches about privacy.
Conclusion
Privacy is a complicated human interest, of that there should be no doubt. In this long written testimony I have only begun to scratch the surface of the issues.
People use the word privacy to refer to many different human interests. The strongest sense of the word refers to control of personal information, which exists when people have legal power to control information and when they exercise that control consistent with their interests and values.
Direct privacy legislation or regulation is unlikely to improve on the status quo. Over decades, a batch of policies referred to as "fair information practices" have failed to take hold because of their complexity and internal inconsistencies. In the cases when they have been adopted, such as in the Privacy Act of 1974, privacy has not blossomed.
Even modest regulation like mandated privacy notices have not produced privacy in any meaningful sense. Consumers generally do not read privacy policies and they either do not consider privacy much of the time or value other things more than privacy when they interact online.
The online medium will take other forms with changing times, and regulations aimed at an Internet dominated by the World Wide Web will not work with future uses of the Internet, as we are beginning to see in handheld devices. Privacy regulations that work "too well" may make consumers worse off overall, not only by limiting their access to content, but by giving super-normal profits to today's leading Internet companies and by discouraging consumer-friendly innovations.
It is an error to think that there are discrete "online" and "offline" experiences. Consumers do not have separate privacy interests for one and the other. Likewise, people do not have privacy interests in their roles as consumers, and a separate set of interests as citizens. If the federal government is going to work on privacy protection, the federal government should start by getting its own privacy house in order.
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Appendix I
Privacy Advocates Who Don't Understand Privacy
In 2006 an engineer working on an experimental WiFi project for Google wrote a piece of code that sampled publicly broadcast data — the information that unencrypted WiFi routers make available by radio to any receiver within range. A year later, this code was included when Google's mobile team started a project to collect basic WiFi network data using Google's Street View cars.
When Google discovered this issue, they stopped running their Street View cars and segregated the data on their network, which they then disconnected to make it inaccessible. Google announced the error to the public and have since been working with European data authorities to try to get rid of it. The European authorities are making them keep it pending their investigations.
Now a U.S. advocacy group, tripping over itself to make this a federal issue, has done more to invade privacy than Google did.
WiFi nodes are like little radio stations. When they are unencrypted, the data they send out can be interpreted fairly easily by whoever receives the radio signals.
Radio signals can travel long distances, and they pass through or around walls and vehicles, people, shrubs and trees. Broadcasting data by radio at the typical signal-strength for a WiFi set-up creates a good chance that it is going to travel outside of one's house or office and beyond one's property line into the street.
For this reason, people often prevent others accessing the information on Wifi networks by encrypting them. That is, they scramble the data so that it is gibberish to anyone who picks it up. (Or at least it takes an enormous amount of computing power to unscramble the signal.) Most people encrypt their WiFi networks these days, which is a good security practice, though it denies their neighbors the courtesy of using a handy nearby Internet connection if they need to.
Even on an unencrypted WiFi network, much sensitive content will be encrypted. Transactions with banks or payments on commerce sites will typically be encrypted by the web browser and server on the other end (the "s" in "https:" indicates this is happening), so their communications are indecipherable wherever they travel.
Given all this, it's hard to characterize data sent out by radio, in the clear, as "private." The people operating these unsecure WiFi nodes may have wanted their communications to be private. They may have thought their communications were private. But they were sending out their communications in the clear, by radio — again, like a little radio station broadcasting to anyone in range.
Picking up the data it did using its Street View cars, Google captured whatever it did during the few seconds that the car was in range of the unencrypted WiFi node. The flashes of data would be quite similar to driving past a row of apartments and seeing snippets of life inside whichever apartments had not fully drawn their curtains. Often, there is nothing happening at all. Once in a while, there may be a flicker of something interesting, but it is not tied to any particular identity.
Google never used this useless data. Not a single fact about a single identifiable WiFi user has been revealed. No personal information — much less private information — got any meaningful exposure.
But a U.S. advocacy group seeking to make a federal case of this story tripped over its privacy shoelaces in doing so. Apparently, researchers for this self-described consumer organization looked up the home addresses of Members of Congress. They went to the homes of these representatives, and they "sniffed" to see if there were WiFi networks in operation there. Then they publicized what they found, naming Members of Congress who operate unencrypted WiFi nodes.
If you care about privacy, this behavior is worse than what Google did. In its gross effort to rain attention on Google's misdeed, this group collected information on identifiable individuals — these members of Congress — and put that information in a press release. That is more "stalkerish" and more exposing of personal information than driving past in an automobile picking up with indifference whatever radio signals are accessible from the street.
The behavior of this group is not a privacy outrage. Politicians volunteer to be objects of this kind of intrusion when they decide that they are qualified to run for federal elective office. It simply illustrates how difficult the "privacy" issue is, when a group pulling off a stunt to draw attention to privacy concerns does more harm to privacy than the "wrongdoer" they are trying to highlight.
Appendix II
Facebook's "News Feed": Consumers Privacy Interests are Unpredictable and Changing
In September 2006, Facebook — the rapidly growing "social networking" site — added a feature that it called "News Feed" to the home pages of users. News Feed would update each user regularly on their home pages about the activities of their friends, using information that each friend had posted on the site. "News Feed" was met with privacy outrage. In the view of many Facebook users, the site was giving too much exposure to information about them.
But Facebook pushed back. In a post on the Facebook blog titled, "Calm down. Breathe. We hear you," CEO Mark Zuckerberg wrote:
This is information people used to dig for on a daily basis, nicely reorganized and summarized so people can learn about the people they care about. You don't miss the photo album about your friend's trip to Nepal. Maybe if your friends are all going to a party, you want to know so you can go too. Facebook is about real connections to actual friends, so the stories coming in are of interest to the people receiving them, since they are significant to the person creating them.
Though Facebook did make some changes, users ultimately found that News Feed added value to their experience of the site. Today, News Feed is an integral part of Facebook, and many users would probably object vociferously if it were taken away.
This is not to say that Facebook is always right or that it is always going to be right. It illustrates how consumers' privacy interests are unsettled and subject to change. Their self-reported interests in privacy may change — and may change rapidly.
The Facebook "News Feed" example is one where consumers looked at real trade-offs between privacy and interaction/entertainment. After balking, they ultimately chose more of the latter.
Consider how well consumers might do with privacy when they are not facing real trade-offs. Consumer polling on privacy generally uses abstract questions to discover consumers' stated privacy preferences. There is little policymaking value in polling data. Determining consumers' true interests in privacy and other values is difficult and complex, but it is taking place every day in the rigorous conditions of the marketplace, where market share and profits are determined by companies' ability to serve consumers in the best ways they can devise.
Some economic studies have suggested how much people value privacy. The goal of privacy advocacy should not be to force unwanted privacy protections on a public that does not want them, but to convince consumers to value privacy more.
Testimony of
Jim Harper,
Director of Information Policy Studies
The Cato Institute, Washington D.C.
before the
Committee on Commerce, Science, and Transportation
United States Senate
Consumer Online Privacy
July 27, 2010
Executive Summary
Privacy is a complicated human interest. People use the word "privacy" to refer to many different things, but its strongest sense is control of personal information, which exists when people have legal power to control information and when they exercise that control consistent with their interests and values.
Direct privacy legislation or regulation is unlikely to improve on the status quo. Over decades, a batch of policies referred to as "fair information practices" have failed to take hold because of their complexity and internal inconsistencies. Even modest regulation like mandated privacy notices have not produced meaningful improvements in privacy. Consumers generally do not read privacy policies and they either do not consider privacy much of the time, or they value other things more than privacy when they interact online.
The online medium will take other forms with changing times, and regulations aimed at an Internet dominated by the World Wide Web will not work with future uses of the Internet. Privacy regulations that work "too well" may make consumers worse off overall, not only by limiting their access to content, but by giving super-normal profits to today's leading Internet companies and by discouraging consumer-friendly innovations.
The "online" and "offline" worlds are collapsing rapidly together, and consumers do not have separate privacy interests for one and the other. Likewise, people do not have privacy interests in their roles as consumers that are separate from their interests as citizens. If the federal government is going to work on privacy protection, it should start by getting its own privacy house in order.
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Chairman Rockefeller, Ranking Member Hutchison, and members of the committee, thank you for inviting me to address your hearing on "Consumer Online Privacy."
My name is Jim Harper, and I am director of information policy studies at the Cato Institute. In that role, I study and write about the difficult problems of adapting law and policy to the challenges of the information age. Cato is a market liberal, or libertarian, think-tank, and I pay special attention to preserving and restoring our nation's founding traditions of individual liberty, limited government, free markets, peace, and the rule of law.
My primary focus is on privacy and civil liberties, and I serve as an advisor to the Department of Homeland Security as a member of its Data Integrity and Privacy Advisory Committee. I am not a technologist, but a lawyer familiar with technology issues. As a former committee counsel in both the House and Senate, I understand lawmaking and regulatory processes related to technology and privacy. I have maintained a web site called Privacilla.org since 2000, cataloguing many dimensions of the privacy issue, and I also maintain an online federal legislative resource called WashingtonWatch.com, which has had over 1.6 million visitors in the last year.
What is Privacy?
Your hearing to explore consumer online privacy is welcome. There are many dimensions to privacy, and it is wise to examine all of them, making yourselves aware of the plethora of issues and considerations before turning to legislation or regulation.
People use the word "privacy" to describe many concerns in the modern world, including fairness, personal security, seclusion, and autonomy or liberty. Given all those salutary meanings, everyone wants "privacy," of course. Few concepts have been discussed so much without ever being solidly defined. But confusion about the meaning of the word makes legislation or regulation aimed at privacy difficult.
"Privacy" sometimes refers to the interest violated when a person's sense of seclusion or repose is upended. Telephone calls during the dinner hour, for example, spam emails, and — historically — the quartering of troops in private homes undermine privacy and the vaunted "right to be let alone."
For some, it is marketing that offends privacy — or at least targeted marketing based on demographic or specific information about consumers. Many people feel something intrinsic to individual personality is under attack when people are categorized, labeled, filed, and objectified for commerce based on data about them.
This is particularly true when incomplete data fails to paint an accurate picture. The worst denial of personality occurs in the marketing area when data and logic get it wrong, serving inappropriate marketing communications to hapless consumers. A couple who recently lost their baby receives a promotion for diapers or children's toys, for example. Or mail for a deceased parent continues coming long after his or her passing. In the informal sector, communities sometimes attack individuals because of the inaccurate picture gossip paints on the powerful medium of the Internet.
The "privacy" damage is tangible when credit bureaus and other reputation providers paint an incomplete or wrong picture. Employers and credit issuers harm individual consumers when they deny people work or credit based on bad data or bad decision rules.
Other kinds of "privacy" violations occur when criminals acquire personal information and use it for their malign purposes. The scourge of identity theft is a well known "privacy" problem. Drivers Privacy Protection Acts passed in many state legislatures and in the U.S. Congress after actress Rebecca Schaeffer was murdered in 1989. Her stalker got her residence information from the California Department of Motor Vehicles. In a similar notable incident a decade later, Vermont murderer Liam Youens used a data broker to gather information as part of an Internet-advertised obsession with the young woman he killed.
"Privacy" is also under fire when information demands stand between people and their freedom to do as they please. Why on earth should a person share a phone number with a technology retailer when he or she buys batteries? The U.S. Department of Homeland Security has worked assiduously in what is now called the "Secure Flight" program to condition air travel on the provision of accurate identity information to the government, raising the privacy costs of otherwise free movement.
Laws banning or limiting medical procedures dealing with reproduction offend "privacy" in another sense of the word. There are a lot of privacy problems out there, and many of them blend together.
Privacy as Control of Personal Information
The strongest and most relevant sense of the word "privacy," which I will focus on here, though, is its "control" sense — privacy as control over personal information. Privacy in this sense is threatened by the Internet, which is an unusual new medium for many people over the age of eighteen.
In his seminal 1967 book Privacy and Freedom, Alan Westin characterized privacy as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." A more precise, legalistic definition of privacy in the control sense is: the subjective condition people experience when they have power to control information about themselves and when they have exercised that power consistent with their interests and values. The "control" sense of privacy alone has many nuances, and I will parse them here briefly.
Importantly, privacy is a subjective condition. It is individual and personal. One person cannot decide for another what his or her sense of privacy is or should be.
To illustrate this, one has only to make a few comparisons: Some Americans are very reluctant to share their political beliefs, refusing to divulge any of their leanings or the votes they have cast. They keep their politics private. Their neighbors may post yard signs, wear brightly colored pins, and go door-to-door to show affiliation with a political party or candidate. The latter have a sense of privacy that does not require withholding information about their politics.
Health information is often deemed intensely private. Many people closely guard it, sharing it only with doctors, close relatives, and loved ones. Others consent to have their conditions, surgeries, and treatments broadcast on national television and the Internet to help others in the same situation. More commonly, they relish the attention, flowers, and cards they receive when an illness or injury is publicized. Privacy varies in thousands of ways from individual to individual and from circumstance to circumstance.
An important conclusion flows from the observation that privacy is subjective: government regulation in the name of privacy can be based only on guesses about what "privacy" should look like. Such rules can only ape the privacy-protecting decisions that millions of consumers make in billions of daily actions, inactions, transactions, and refusals. Americans make their highly individual privacy judgments based on culture, upbringing, experience, and the individualized costs and benefits of interacting and sharing information.
The best way to protect true privacy is to leave decisions about how personal information is used to the people affected. Regulatory mandates that take decision-making power away from people will prevent them striking the balances that make them the best off they can be. Sometimes it is entirely rational and sensible to share information.
At its heart, privacy is a product of autonomy and personal responsibility. Only empowered, knowledgeable citizens can formulate and protect true privacy for themselves, just as they individually pursue other subjective conditions, like happiness, piety, or success.
The Role of Law
The legal environment determines whether people have the power to control information about themselves. Law has dual, conflicting effects on privacy: Much law protects the privacy-enhancing decisions people make. Other laws undermine individuals' power to control information.
Various laws foster privacy by enforcing individuals' privacy-protecting decisions. Contract law, for example, allows consumers to enter into enforceable agreements that restrict the sharing of information involved in, or derived from, transactions.
Thanks to contract, one person may buy foot powder from another and elicit as part of the deal an enforceable promise never to tell another soul about the purchase. In addition to explicit terms, privacy-protecting confidentiality has long been an implied term in many contracts for professional and fiduciary services, like law, medicine, and financial services. Alas, legislation and regulation of recent vintage have undermined those protections.
Many laws protect privacy in other areas. Real property law and the law of trespass mean that people have legal backing when they retreat into their homes, close their doors, and pull their curtains to prevent others from seeing what goes on within. The law of battery means that people may put on clothes and have all the assurance law can give that others will not remove their clothing and reveal the appearance of their bodies without permission.
Whereas most laws protect privacy indirectly, a body of U.S. state law protects privacy directly. The privacy torts provide baseline protection for privacy by giving a cause of action to anyone whose privacy is invaded in any of four ways.
The four privacy causes of action, available in nearly every state, are:
•Intrusion upon seclusion or solitude, or into private affairs;
•Public disclosure of embarrassing private facts;
•Publicity that places a person in a false light in the public eye; and
•Appropriation of one's name or likeness.
While those torts do not mesh cleanly with privacy as defined here, they are established, baseline, privacy-protecting law.
Law is essential for protecting privacy, but much legislation plays a significant role in undermining privacy. Dozens of regulatory, tax, and entitlement programs deprive citizens of the ability to shield information from others. You need only look at the Internal Revenue Service's Form 1040 and related tax forms to see that.
Consumer Knowledge and Choice
I wrote above about the role of personal responsibility in privacy protection. Perhaps the most important, but elusive, part of privacy protection is consumers' exercise of power over information about themselves consistent with their interests and values. This requires consumers and citizens to be aware of the effects their behavior will have on exposure of information about them.
Technology and the world of commerce are rapidly changing, and personal information is both ubiquitous and mercurial. Unfortunately, there is no horn that sounds when consumers are sufficiently aware, or when their preferences are being honored. But study of other, more familiar, circumstances reveals how individuals have traditionally protected privacy.
Consider privacy protection in the physical world. For millennia, humans have accommodated themselves to the fact that personal information travels through space and air. Without understanding how photons work, people know that hiding the appearance of their bodies requires them to put on clothes. Without understanding sound waves, people know that keeping what they say from others requires them to lower their voices.
From birth, humans train to protect privacy in the "natural" environment. Over millions of years, humans, animals, and even plants have developed elaborate rules and rituals of information sharing and information hiding based on the media of light and sound.
Tinkering with these rules and rituals today would be absurd. Imagine, for instance, a privacy law that made it illegal to observe and talk about a person who appeared naked in public without giving the nudist a privacy notice and the opportunity to object. People who lacked the responsibility to put on clothes might be able to sue people careless enough to look at them and recount what they saw. A rule like that would be ridiculous.
The correct approach is for consumers to be educated about what they reveal when they interact online and in business so that they know to wear the electronic and commercial equivalents of clothing.
Of all the online privacy concerns, perhaps the most fretting has been done about "behavioral advertising" — sometimes referred to as "psychographic profiling" to get us really worked up. What is truly shocking about this problem, though, is that the remedy for most of it is so utterly simple: exercising control over the cookies in one's browser.
Cookies are small text files that a web site will ask to place in the memory of computers that visit it. Many cookies have distinct strings of characters in them that allow the web site to "recognize" the computer when it visits the site again. When a single domain places content across the web as a "third party" — something many ad networks do — it can recognize the same computer many places and gain a sense of the interests of the user.
The solution is cookie control: In the major browsers (Firefox and Internet Explorer), one must simply go to the "Tools" pull-down menu, select "Options," then click on the "Privacy" tab to customize one's cookie settings. In Firefox, one can decline to accept all third-party cookies (shown inset), neutering the cookie-based data collection done by ad networks. In Internet Explorer, one can block all cookies, block all third-party cookies, or even choose to be prompted each time a cookie is offered.
Again, consumers educated about what they reveal when they interact online can make decisions about how to behave that will protect privacy much better — in all online contexts — than consumers unaware of how the world around them works.
Can Direct Regulation Protect Privacy Better?
Above, I wrote about how law protects people's privacy-protecting decisions. This unfortunately leaves them with the responsibility of making those decisions. Naturally, most privacy advocates — myself included — believe that people do not do enough to protect their privacy. Consciously or not, people seem to prioritize the short-term benefits of sharing personal information over the long-term costs to their privacy.
This poses the question: Can direct regulation protect consumers privacy better than they can protect themselves?
There is a decades-long history behind principles aimed at protect privacy and related interests, principles that are often put forward as a framework for legislative or regulatory directives.
In the early 1970s, a group called "The Secretary's Advisory Committee on Automated Personal Data Systems" within the Department of Health, Education, and Welfare did an important study of record-keeping practices in the computer age. The intellectual content of its report, commonly known as the "HEW Report," formed much of the basis of the Privacy Act of 1974. The report dealt extensively with the use of the Social Security Number as the issues stood at that time.
The HEW report advocated the following "fair information practices":
•There must be no personal-data record-keeping systems whose very existence is secret.
•There must be a way for an individual, to find out what information about him is in a record and how it is used.
•There must be a way for an individual to prevent information about him obtained for one purpose from being used or made available for other purposes without his consent.
•There must be a way for an individual to correct or amend a record of identifiable information about him.
•Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take reasonable precautions to prevent misuse of the data.
These things sound wonderful in the abstract, but their relevance, worthiness, and cost-justifications vary widely from circumstance to circumstance.
In 1980, the Organization for Economic Cooperation and Development (OECD) issued similar, if more detailed guidelines. The OECD Guidelines involve eight principles, which in different variations are often touted as "fair information practices" or "fair information practice principles."
They include a "Collection Limitation Principle," a "Data Quality Principle," a "Purpose Specification Principle," a "Use Limitation Principle," a "Security Safeguards Principle," an "Openness Principle," an "Individual Participation Principle," and an "Accountability Principle." The full OECD principles, in their sprawling glory, are reproduced in a footnote below.
In a 2000 report, the Federal Trade Commission came out with a relatively briefer list of "fair information practices" (notice, choice, access, and security) and asked Congress for authority to impose them on the businesses of the country, even though a committee convened by the FTC could not reconcile the inherent tensions between access and security. Congress declined to take the FTC's advice.
These examples illustrate one of the problems with the idea of "baseline privacy regulation" for the Internet that has been a consistent call of many for over a decade. There are many good ideas and good practices described in the HEW Report, the OECD Guidelines, and in various other iterations of "fair information practices," but tensions among the principles and variations in their applicability to different circumstances make "FIPs" a poor guide for smart legislating.
"Fair information practices" remain largely aspirational after nearly 40 years, and where they have been implemented, privacy has not blossomed. The principal example is the Privacy Act of 1974, which has done little to give American citizens control over information the government collects. It is shot through with exceptions, and it is largely a paper tiger.
The Fair Credit Reporting Act has guided the development of the credit reporting industry for four decades, while insulating credit bureaus from state tort laws. During that period, the industry has become highly cartelized, consisting of three players (as discussed below, a typical consequence of regulatory barriers to entry). It has failed to innovate and become the reputation and identity service that the world of e-commerce could use. And — most importantly for these purposes — credit reporting is a consumer-unfriendly industry. Rather than working with consumers to develop mutually beneficial personal data repositories, the credit reporting industry serves its financial industry partners first, federal regulators second, and consumers as a rather distant afterthought.
The privacy regulations implemented under the Health Insurance Portability and Accountability Act are sometimes touted as reflecting "fair information practices." (With their breadth, any good data practice is arguably a FIP.) But health privacy has not materialized since Congress shrugged its shoulders and handed the privacy problem to the Department of Health and Human Services. Pre-HIPAA studies showing that patients sometimes avoided treatment due to privacy worries have not been matched by post-HIPAA studies showing that consumers confident of health privacy are getting medical care they would not have gotten.
Fair information practices are widely touted as models for direct regulation that would protect privacy. But the examples we have of FIP-style laws and regulations have not delivered privacy. Privacy protection is hard, and it is not amenable to top-down solutions.
Keeping it Simple: What About Privacy Notice?
If the full suite of "fair information practices" is too intricate and internally inconsistent to produce a flowering of privacy across the land, perhaps some minimal privacy regulation would move the ball in the right direction. Mandated privacy notices are widely regarded as a step that would put consumers in a position to protect privacy themselves.
One would think. But they haven't.
A decade ago, market pressure spurred commercial web sites to adopt and publish privacy policies. The FTC found in its 2000 report that 100% of the most popular sites on the web and 88% of randomly sampled sites had privacy disclosures of some kind. This was in the absence of any regulation requiring notice; it was simply the product of market-based consensus that privacy notice was an appropriate business practice.
However, over the ensuing decade it has become clear that privacy notices do not materially improve consumers' privacy practices. The Federal Trade Commission, other agencies, researchers like Lorrie Faith Cranor at Carnegie Mellon University's "CUPS" laboratory, and others are diligently pursuing strategies to make notices effective at communicating privacy information to consumers in the hope that they will act on that information. But none has yet borne fruit.
The FTC and seven other regulators recently revealed a new, "short" financial privacy notice (required annually of financial services providers by the Gramm-Leach-Bliley Act) that they say "will make it easier for consumers to understand how financial institutions collect and share information about consumers." Perhaps privacy awareness will flourish in the financial services area under this new regime, validating the widely derided privacy notices that clutter Americans' mailboxes. More likely, artificial "notice" will continue to lose currency as a tool for generating consumer focus on privacy.
Nutrition labels, the beloved model for privacy notices, have failed to stem the tide of fat washing over Americans' waistlines. Consumer behavior is difficult to control, as it should be in a free country.
Notice has other challenges. If it ever was, the "online" environment is no longer confined to a series of web pages, of which one could contain a universal privacy policy. The Internet is amenable to endless new protocols and forms of communication, which may defy the idea that there is somewhere for a notice to be located.
Even the growth of handheld devices — an incremental step in comparison to what may come in the future — challenges the idea of notice. Given the very small screen space of many devices, where is a notice to be located? And where is a notice to be located when there isn't a hypertext "link" structure to follow?
A hint of how unsuited privacy notices are to the future of the Internet lies in a dust-up about Google's privacy notice that occurred in mid-2008. A California law passed in 2003 requires web sites to have privacy policies linked to from their home pages. At some point, privacy advocates noticed that Google did not have such a link. Access to Google's industry-leading "Privacy Center" was accessible by doing a search on any number of terms or phrases, such as: What is Google's privacy policy?
Google, after all, is a search engine. In fact, it is the search engine that augured the decline of the Internet "portal" in favor of more fluid, search-based entrée to the web. Yet the California law requires a portal-style link, something that Google agonized over, being very proud of their very clean home page. Google now has a privacy link on its home page. It has cured its online paperwork violation.
As this story illustrates, Americans are not going on the web through portals any more. Americans are not going "online" sitting at computers looking at web pages any more. There is no end to the protocols that people may use to communicate on the Internet, and a notice regime designed for the World Wide Web so popular in the decade just past will fail to reach people in the decades to come.
What Does "Online" Mean Anyway? And Why Is It Important?
It is important to consider changes in technology of a different kind, particularly the vanishing border between "online" and "offline." As I deliver my oral testimony to the committee today, for example, I will be nominally "offline." However, audio and video of my presentation may be streamed live over the Internet or recorded and posted on the committee's web site or elsewhere. Reporters and researchers may take snippets of what I say and weave them into their work, posting those works online.
The phone in my pocket will be signaling its whereabouts (and inferentially mine) to nearby cell towers. Video of me entering, walking around inside, and leaving the Russell building may be captured and stored by the Capitol Police. Should the need arise, they may move this video into permanent storage.
There are privacy consequences from all these things. More than others, I suppose, I knowingly and willingly encounter privacy loss in order to be here and speak to you.
But what is the difference between the privacy consequences of this "offline" behavior and "online" behavior. Why should special privacy protections kick in when one formally sits down in front of a computer or uses a handheld device to go "online" if so much of "offline" life means the same thing?
The distinction between online and offline is blurring, and legislation or regulation aimed at protecting consumers "online" could create strange imbalances between different spheres of life. Consumers do not have a set of privacy interests that applies to the "online" world and another set that applies "offline."
To address online privacy alone is to miss the mark. This is not to say that the flesh-and-blood world should have privacy regulations like those that have been dreamed up for the Internet. Rather, privacy on the Internet might better be produced the way it is in the "real" world, by people aware of the consequences of their behavior acting in their own best interests.
Privacy Regulation Might Also Work "Too Well"
Consumer privacy legislation and regulation might fail because they miss new protocols or technologies, uses of the Internet that are not web-based, for example. But there is an equally plausible likelihood that privacy regulation works too well, in a couple of different senses.
Privacy regulation that works "too well" would give people more privacy than is optimal, making consumers worse off overall. Consumers have interests not just in privacy, but also in publicity, access to content, customization, convenience, low prices, and so on. Many of these interests are in tension with privacy, and giving consumers privacy at the cost of other things they prefer is not a good outcome.
The dominant model for producing Internet content — all the interaction, commentary, news, imagery, and entertainment that has the Internet thriving — is advertising support. Many of the most popular services and platforms are "free" because they host advertisements directed at their visitors and users. Part of the reason they can support themselves with advertising is because they have good information about users that allow ads to be appropriately targeted. It is a fact that well-targeted ads are more valuable than less-well-targeted ads.
This is important to note: Most web-based businesses do not "sell" information about their users. In targeted online advertising, the business model is generally to sell advertisers access to people ("eyeballs") based on their demographics. It is not to sell individuals' personal and contact info. Doing the latter would undercut the advertising business model and the profitability of the web sites carrying the advertising.
If privacy regulation "blinded" sites and platforms to relevant information about their visitors, the advertising-supported model for Internet content would likely be degraded. Consumers would be worse off — entombed by an excess of privacy when their preferences would be to have more content and more interaction than regulation allows advertising to support.
If the Federal Trade Commission's recommendations for "notice, choice, access, and security" had been fully implemented in 2000, for example, it is doubtful that Google would have had the same success it has had over the last decade. It might be a decent, struggling search engine today. But, unable to generate the kind of income it does, the quality of search it produces might be lower, and it may not have had the assets to produce and support fascinating and useful products like Gmail, Google Maps, Google Docs, and the literally dozens of author products it provides consumers.
Not having these things at our fingertips is difficult to imagine — it is much easier to assume that the Google juggernaut was fated from the beginning — but the rise of Google and all the access to information it gives us was contingent on a set of circumstances that allowed it to target ads to visitors in a highly customized and — to some — privacy-dubious way.
As a thought experiment, imagine taking away Google, Facebook, Apple's suite of consumer electronics (and the app universe that has sprung up within it), and the interactivity that AT&T facilitates. Consumers would rightly howl at the loss of richness to their lives, newly darkened by privacy. And we would all be worse off as the economy and society were starved of access to information.
All this is just to show that trading on personal information can make consumers better off overall. It is not to say that Google or any other company is the be-all and end-all, or that public policy should do anything to "prefer" any company. In fact, the other way that privacy regulation might work "too well" is by giving today's leading firms an advantage against future competitors.
A "barrier to entry" is something that prevents competition from entering a market. Barriers to entry often allow incumbents (like the established companies joining me at the witness table today) to charge higher prices and make greater profits than they otherwise would. Common barriers to entry (fair or unfair) include customer loyalty, economies of scale, control of intellectual property, and network effects, to name a few.
Government regulation can act as a barrier to entry in a few different ways. Aside from direct regulation of entry through licensing or grants of monopoly (issues not relevant here), incumbent firms can comply with regulations at a lower cost per sales unit. With a staff of lawyers already in place, the cost per customer of interpreting and applying any regulation are lower for large firms. Whether regulation is merited and tailored or not, small competitors "pay more" to comply with it. Regulation impedes their efforts to challenge established firms.
Established firms can strengthen this dynamic by taking part in crafting legislation and regulation. Their lobbyists, lawyers, and interest-group representatives — the good people gathered at this hearing today — will crowd around and work to protect their clients' interests in whatever comes out of the drafting process, here in Congress and at whatever agency implements any new law. Small, future competitors — unrepresented — will have no say, and new ways of doing business those competitors might have introduced may be foreclosed by regulation congenial to today's winners.
In his paper, The Durable Internet, my colleague, Cato adjunct fellow Timothy B. Lee, provides a useful history of how regulatory agencies have historically been turned to protecting the companies they are supposed to regulate. This would occur if the FCC were to regulate Internet service under a "net neutrality" regulation regime. It would occur if a federal agency were tasked with protecting privacy. It appears to have happened with the Minerals Management Service. The dynamic of "agency capture" is a mainstay of the regulatory studies literature.
Returning to the example of Google and the FTC's proposal for comprehensive regulation a decade ago: Had Congress given the FTC authority to impose broad privacy/fair information practice regulations, companies like Microsoft and Yahoo! may have turned the regulations to their favor. Today, the company the produces that most popular operating system might still be the most powerful player, and we might still be accessing the web through a portal. Consumers would be worse off for it.
For all the benefits today's leading companies provide, there is no reason they should not be subjected to as much competition as our public policy can allow. The spur of competition benefits consumers by lowering prices and driving innovations. Privacy regulation might work "too well" for them, locking in competitive advantages that turn away competition and allow them super-normal profits.
Comparisons between existing companies and future competitors are one thing. But a major defect of most proposals for privacy protection are their bald omission of an entire category of privacy threat: governments.
Privacy for Consumers But Not for Citizens?
Just as people do not have one set of privacy interests for the online world and one for offline, they do not have one set of privacy interests for commerce and another set for government. The privacy protections Americans have as consumers should be made available to them as citizens.
Indeed, given the unique powers of governments — to take life and liberty — Americans should have greater privacy protections from government than they do from private sector entities.
Governments thrive on information about people. Personal information allows governments to serve their citizenry better, to collect taxes, and to enforce laws and regulations. But governments stand in a very different position to personal information than businesses or individuals. Governments have the power to take and use information without permission. And there is little recourse against governments when they use information in ways that are harmful or objectionable.
In the modern welfare state, governments use copious amounts of information to serve their people. A program to provide medical care, for example, requires the government to collect a beneficiary's name, address, telephone number, sex, age, income level, medical condition, medical history, providers' names, and much more.
Governments also use personal information to collect taxes. This requires massive collections of information without regard to whether an individual views it as private: name, address, phone number, Social Security number, income, occupation, marital status, investment transactions, home ownership, medical expenses, purchases, foreign assets. The list is very, very long.
A third use government makes of personal information is to investigate crime and enforce laws and regulations. Governments' ability to do these things correlates directly to the amount of information they can collect about where people go, what they do, what they say, to whom they say it, what they own, what they think, and so on. We rely on government to investigate wrongdoing by examining information that is often regarded as private in the hands of the innocent. It is a serious and legitimate concern of civil libertarians that government collects too much information about the innocent in order to reach the guilty. The incentives that governments face all point toward greater collection and use of personal information about citizens. This predisposes them to violate privacy.
Yet "consumer privacy" bills planned and introduced in the current Congress do nothing to protect Americans' privacy from government. The leading proposals in the House — Rep. Boucher's (D-VA) draft legislation and H.R. 5777, the "BEST PRACTICES Act," introduced by Rep. Rush (D-IL) — simply exclude the federal government from their provisions.
In fairness, there may be jurisdictional reasons for these exemptions, but the hypocrisy would be a little too rank if the federal government were to impose privacy regulations on the private sector while its own profligacy with citizens' information continues.
If there is to be privacy legislation, the U.S. Congress should demonstrate the commitment of the federal government to getting its own privacy house in order. The federal government should practice what it preaches about privacy.
Conclusion
Privacy is a complicated human interest, of that there should be no doubt. In this long written testimony I have only begun to scratch the surface of the issues.
People use the word privacy to refer to many different human interests. The strongest sense of the word refers to control of personal information, which exists when people have legal power to control information and when they exercise that control consistent with their interests and values.
Direct privacy legislation or regulation is unlikely to improve on the status quo. Over decades, a batch of policies referred to as "fair information practices" have failed to take hold because of their complexity and internal inconsistencies. In the cases when they have been adopted, such as in the Privacy Act of 1974, privacy has not blossomed.
Even modest regulation like mandated privacy notices have not produced privacy in any meaningful sense. Consumers generally do not read privacy policies and they either do not consider privacy much of the time or value other things more than privacy when they interact online.
The online medium will take other forms with changing times, and regulations aimed at an Internet dominated by the World Wide Web will not work with future uses of the Internet, as we are beginning to see in handheld devices. Privacy regulations that work "too well" may make consumers worse off overall, not only by limiting their access to content, but by giving super-normal profits to today's leading Internet companies and by discouraging consumer-friendly innovations.
It is an error to think that there are discrete "online" and "offline" experiences. Consumers do not have separate privacy interests for one and the other. Likewise, people do not have privacy interests in their roles as consumers, and a separate set of interests as citizens. If the federal government is going to work on privacy protection, the federal government should start by getting its own privacy house in order.
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Appendix I
Privacy Advocates Who Don't Understand Privacy
In 2006 an engineer working on an experimental WiFi project for Google wrote a piece of code that sampled publicly broadcast data — the information that unencrypted WiFi routers make available by radio to any receiver within range. A year later, this code was included when Google's mobile team started a project to collect basic WiFi network data using Google's Street View cars.
When Google discovered this issue, they stopped running their Street View cars and segregated the data on their network, which they then disconnected to make it inaccessible. Google announced the error to the public and have since been working with European data authorities to try to get rid of it. The European authorities are making them keep it pending their investigations.
Now a U.S. advocacy group, tripping over itself to make this a federal issue, has done more to invade privacy than Google did.
WiFi nodes are like little radio stations. When they are unencrypted, the data they send out can be interpreted fairly easily by whoever receives the radio signals.
Radio signals can travel long distances, and they pass through or around walls and vehicles, people, shrubs and trees. Broadcasting data by radio at the typical signal-strength for a WiFi set-up creates a good chance that it is going to travel outside of one's house or office and beyond one's property line into the street.
For this reason, people often prevent others accessing the information on Wifi networks by encrypting them. That is, they scramble the data so that it is gibberish to anyone who picks it up. (Or at least it takes an enormous amount of computing power to unscramble the signal.) Most people encrypt their WiFi networks these days, which is a good security practice, though it denies their neighbors the courtesy of using a handy nearby Internet connection if they need to.
Even on an unencrypted WiFi network, much sensitive content will be encrypted. Transactions with banks or payments on commerce sites will typically be encrypted by the web browser and server on the other end (the "s" in "https:" indicates this is happening), so their communications are indecipherable wherever they travel.
Given all this, it's hard to characterize data sent out by radio, in the clear, as "private." The people operating these unsecure WiFi nodes may have wanted their communications to be private. They may have thought their communications were private. But they were sending out their communications in the clear, by radio — again, like a little radio station broadcasting to anyone in range.
Picking up the data it did using its Street View cars, Google captured whatever it did during the few seconds that the car was in range of the unencrypted WiFi node. The flashes of data would be quite similar to driving past a row of apartments and seeing snippets of life inside whichever apartments had not fully drawn their curtains. Often, there is nothing happening at all. Once in a while, there may be a flicker of something interesting, but it is not tied to any particular identity.
Google never used this useless data. Not a single fact about a single identifiable WiFi user has been revealed. No personal information — much less private information — got any meaningful exposure.
But a U.S. advocacy group seeking to make a federal case of this story tripped over its privacy shoelaces in doing so. Apparently, researchers for this self-described consumer organization looked up the home addresses of Members of Congress. They went to the homes of these representatives, and they "sniffed" to see if there were WiFi networks in operation there. Then they publicized what they found, naming Members of Congress who operate unencrypted WiFi nodes.
If you care about privacy, this behavior is worse than what Google did. In its gross effort to rain attention on Google's misdeed, this group collected information on identifiable individuals — these members of Congress — and put that information in a press release. That is more "stalkerish" and more exposing of personal information than driving past in an automobile picking up with indifference whatever radio signals are accessible from the street.
The behavior of this group is not a privacy outrage. Politicians volunteer to be objects of this kind of intrusion when they decide that they are qualified to run for federal elective office. It simply illustrates how difficult the "privacy" issue is, when a group pulling off a stunt to draw attention to privacy concerns does more harm to privacy than the "wrongdoer" they are trying to highlight.
Appendix II
Facebook's "News Feed": Consumers Privacy Interests are Unpredictable and Changing
In September 2006, Facebook — the rapidly growing "social networking" site — added a feature that it called "News Feed" to the home pages of users. News Feed would update each user regularly on their home pages about the activities of their friends, using information that each friend had posted on the site. "News Feed" was met with privacy outrage. In the view of many Facebook users, the site was giving too much exposure to information about them.
But Facebook pushed back. In a post on the Facebook blog titled, "Calm down. Breathe. We hear you," CEO Mark Zuckerberg wrote:
This is information people used to dig for on a daily basis, nicely reorganized and summarized so people can learn about the people they care about. You don't miss the photo album about your friend's trip to Nepal. Maybe if your friends are all going to a party, you want to know so you can go too. Facebook is about real connections to actual friends, so the stories coming in are of interest to the people receiving them, since they are significant to the person creating them.
Though Facebook did make some changes, users ultimately found that News Feed added value to their experience of the site. Today, News Feed is an integral part of Facebook, and many users would probably object vociferously if it were taken away.
This is not to say that Facebook is always right or that it is always going to be right. It illustrates how consumers' privacy interests are unsettled and subject to change. Their self-reported interests in privacy may change — and may change rapidly.
The Facebook "News Feed" example is one where consumers looked at real trade-offs between privacy and interaction/entertainment. After balking, they ultimately chose more of the latter.
Consider how well consumers might do with privacy when they are not facing real trade-offs. Consumer polling on privacy generally uses abstract questions to discover consumers' stated privacy preferences. There is little policymaking value in polling data. Determining consumers' true interests in privacy and other values is difficult and complex, but it is taking place every day in the rigorous conditions of the marketplace, where market share and profits are determined by companies' ability to serve consumers in the best ways they can devise.
Some economic studies have suggested how much people value privacy. The goal of privacy advocacy should not be to force unwanted privacy protections on a public that does not want them, but to convince consumers to value privacy more.
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