The party of big government versus the party of big government

JB

As a follow up to Andy's last post, it's worth noting that, some sixty years after the New Deal revolution, although Democrats and Republicans are deeply ideologically divided on how to structure the stimulus package, the Republicans in Congress are not arguing that the Democratic plans are unconstitutional. Indeed, the Republican alternative-- tax cuts and spending on a different set of programs-- presumes the basic constitutionality of many of the devices used in the New Deal and the Administrative and Welfare State.

Even so, this does not mean that the fight over the stimulus has no constitutional overtones. In a larger sense, the fight between Democrats and Republicans really is constitutional in nature. That is because it is a fight over how government should grow. In this fight, the Democrats are the party of big government and the Republicans, by contrast, are the part of big government.

Small government conservatism is an excellent slogan, but it corresponds neither to contemporary realities nor to the actual policies of either party. None of the Republican presidents since the New Deal have really limited the size of government; all have presided over its increase, and in some cases (Nixon and Bush), the growth of government has been quite remarkable.

In saying this I do not wish to suggest that the growth of government under liberal Democratic leadership has been unproblematic, but rather to point to a general trend in technologies of governance that has been shared by both parties. Indeed, one can say that since the New Deal the expansion of government has been as American as apple pie, no matter who is in charge. If that is so, we might want to look past ideological disagreement as an explanation.

Despite the Republican rhetoric of small government, the actual Republican political hegemony of the past three decades has not really been directed to reducing the size of government. Rather, it has been about lowering taxes, especially taxes for large businesses, limiting government regulatory oversight, especially for large businesses, and increasing subsidies and government expenditures on subjects that Republicans have sought to subsidize, including, among other things, various business interests and the defense industries.

The Nixon Administration consolidated and expanded the Welfare State; the Reagan Administration ran enormous deficits; and the George W. Bush Administration converted a federal surplus into enormous deficits while creating new bureaucracies in education, health care, and Homeland Security and helping to construct the national surveillance state. While it was doing all this, it also expended about a trillion dollars on an ill-advised war in Iraq. Ironically, its particularly poor stewardship of big government has created an emergency that will probably lead to even more government.

You might think that an anti-tax and anti-regulatory philosophy necessarily means smaller government. But it does not, and indeed, the Bush Administration has shown us how to grow government while simultaneously reducing taxes and crippling regulatory oversight.

The problem with this model of big government/low taxes/limited regulation and government oversight is that it wastes lots of money, exacerbates social inequality, doesn't provide particularly good government services, exacerbates problems of corruption, and, in certain cases, can help precipitate a financial meltdown. Other than that, it's fine, I guess.

Posted 8:05 AM by JB [link]

The revealing DeMint amendment

Andrew Koppelman

This blog is not ordinarily a venue for the reporting of straight news, but a major vote in the Senate Wednesday evening has been ignored by the press. Senator James DeMint offered a substitute bill for President Obama’s stimulus package that would consist of nothing but tax cuts, most notably a massive reduction of the top income tax rate from 35% to 25%. The amendment was defeated, but 36 out of the 41 Republican senators voted for it.

The vote makes clear that most Republicans fundamentally disagree with the Keynesian premises of Obama’s stimulus package. Their public statements have harped on details of spending, but the DeMint vote shows that they are opposed to any attempt to stimulate the economy by government spending. They are unalterably convinced that tax cuts are the universal elixir for any economic problem. Under these circumstances, bipartisanship is a delusion. Democrats and Republicans have nothing to negotiate about.



Posted 2:15 PM by Andrew Koppelman [link]

Professors’ Brief in Seventh Circuit Guns Case Calls for the Restoration of the Privileges or Immunities Clause

Doug Kendall

Back in December, we blogged here that the Supreme Court’s decision in District of Columbia v. Heller would lead to momentous incorporation question, and could open the door to the rejuvenation of the Privileges or Immunities Clause, the text in the Fourteenth Amendment that protects substantive fundamental rights against state infringement.


On Wednesday, Constitutional Accountability Center (CAC) filed a brief with the U.S. Court of Appeals for the Seventh Circuit, in the consolidated cases of McDonald, et al., and National Rifle Association of America, Inc., et al., v. City of Chicago, et al., and Village of Oak Park, arguing that right to keep and bear arms recognized in Heller is “incorporated” against state action via the Privileges or Immunities Clause of the Fourteenth Amendment. CAC’s “friend of the court” brief was filed on behalf of four preeminent constitutional scholars including Balkinization’s very own Jack Balkin.

Our brief echoes CAC’s report, The Gem of the Constitution, which explains that the Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, and the critical constitutional language guaranteeing the fundamental rights of all Americans. In The Gem, we say that “all Americans should cheer a ruling that finally honors some of our Constitution’s most important text and history,” and we are urging the court to make such a ruling in this case.

Our brief also brings to the fore the surprisingly progressive Reconstruction history of the right to bear arms. It shows that the framers of the Fourteenth Amendment sought to constitutionally protect this right against state infringement, in large part because they wanted the newly freed slaves to have the means to protect themselves, their families and their property against well-armed former rebels.

(David Gans is Constitutional Accountability Center's Human and Civil Rights Director, Doug Kendall is CAC's President. For more on the progressive force of the Constitution's text and history, visit our blog, http://www.textandhistory.org/).

Posted 11:27 AM by Doug Kendall [link]

Beyond Competition: Preparing for a Google Book Search Monopoly

Frank Pasquale

Like Robert Darnton, I look to the upcoming Google Book Search Settlement hearing with a mixture of wonder and trepidation. The prospect of constructing a digital library of Alexandria warms the heart of any scholar. But only the most naive optimist could ignore the perils of having one company, driven first and foremost by a profit motive, effectively in charge of the most comprehensive collection of the world's scientific and cultural heritage.

In 2007, I hoped that public interest groups could leverage copyright challenges to Google’s book search program to promote the public interest. Courts could condition a pro-Google fair use finding on universal access to the contents of the resulting database. Landmark cases like Sony v. Universal have set a precedent for taking such broad public interests into account in the course of copyright litigation.

Those who opt out of the settlement may be able to fight for such concessions, but for now the main event is possible challenges to the settlement itself. James Grimmelmann has suggested several principles and recommendations to guide the court, focusing primarily on antitrust issues. He's summarized the ideas at Talking Points Memo, a political blog that deserves credit for addressing tech policy:

The antitrust danger here is that the settlement puts Google in a highly privileged position for book search and book sales. Do you want to sell e-books of scanned out-of-print books the way Google will? Good luck with that; I hope you’ve put aside a lot of money for lawyers. The authors and publishers settled voluntarily with Google, but there’s no guarantee they’ll offer similar terms, or any terms at all, to anyone else. Google also gets some excellent deals with the new Book Rights Registry the settlement sets up to process payments to copyright owners. The Registry is empowered to negotiate on behalf of all authors and publishers, and it could unilaterally decide only to talk to Google.

Grimmelmann's ideas are powerful, and well adapted to a policy consensus that presumes competition is the ideal solution to abuses of power online. He wants to assure the settlement leaves open ample opportunities for new entrants to offer a universal or niche book search service. However, what happens if we start losing our faith in the likelihood of competition? What should inform our response to Google Book Search then?



Oren Bracha and I have identified many reasons why competition is unlikely in the general purpose search market; two are particularly relevant to book searches. Licensing costs are likely to be a substantial barrier to entry. A key to competition in the search market is having a comprehensive database of searchable materials; the more these need to be licensed, the less likely it is that a second comer can set up its own book archive. Moreover, innovation in search is heavily dependent on having an installed base of users that effectively "train" the search engine to be responsive. The more search queries an engine gets, the better able it is to sharpen and perfect its algorithm. Each additional user decreases the cost of a better quality service for all subsequent users. Thus, incumbents with large numbers of users enjoy substantial advantages over smaller entrants.

I do not foresee quantum leaps in technology capable of overcoming this brute disadvantage, particularly because search is as much about personalized customer service as it is about technical principles of information organization and retrieval. Current advantage in search is likely to be self-reinforcing--especially given that so many more people are using the services now than did when Google itself overtook other search engines in the early 2000s.

What does a world featuring an entrenched Google Book Search as gatekeeper look like? If we look only at access to knowledge, it's a vast improvement on the status quo. But when we consider the ways in which knowledge acquisition can be a zero-sum game, some worries arise. Privacy problems are endemic in such a project, dispelling any hope of a "right to read anonymously." The Open Content Alliance has questioned the restrictive terms of the contracts that Google strikes when it agrees to scan and create a digital database of a library’s books. Those restrictive terms foreshadow potential future restrictions on and tiering of their book search services.

Well-funded libraries may pay a premium to gain access to all sources; lesser institutions may be granted inferior access. If permitted to become prevalent, such tiered access to information could rigidify and reinforce existing inequalities in access to knowledge, and life chances. Information tiering inequitably subjects many groups to disadvantage, whereby others’ wealth can be leveraged into status, educational, or other occupational advantage. Economic functionalism is only one way of looking at the world; conflict theories of sociology emphasize the zero-sum games that arise in many walks of life.

Of course, it's important not to miss the forest for the trees; Darnton is right to predict that "Google Book Search really will make book learning accessible on a new, worldwide scale, despite the great digital divide that separates the poor from the computerized." Current access to knowledge is stratified in many troubling ways; the work of Sean Willinsky and Peter Suber identifies many "fatter targets" than Google Book Search.

Nevertheless, I think it's important we critique Google in these terms because it is likely to be the key private entity capable of competing or cooperating with academic publishers and other content providers. Alliances like Google Book Search + Publishers, or Apple + Recording Companies, deserve public scrutiny because they permit private parties to take on what have often been public functions of determining access to and pricing of information. Where "regulatory copyright" has answered such questions with compulsory licenses, the new alliances effectively put into place a regime of cross-subsidization resistant to public scrutiny or input.

In closing, I hope we begin to think about Google's actions here as both a private triumph, and a public failure, as Siva Vaidhyanathan has wisely put it. While we often hear about market failure,

"Public failure" [is a] phenomenon in which a private firm steps into a vacuum created by incompetent or gutted public institutions. A firm does this not for immediate rent seeking or even revenue generation. It does so to enhance presence, reputation, or to build a platform on which to generate revenue later or elsewhere. It's the opposite of "market failure." And it explains a lot of what Google does.

A rational copyright policy would have required digital deposit of all books granted copyright since digitization became widespread. It would have put government in the position of providing a service like Google book search, at least with respect to more current books. Just as Medicare provides a benchmark for private insurers' actions, that Public Book Search could be both an alternative and a model for Google--and could learn from Google, too.

But when the publishers lobby so effectively captures the US copyright lawmaking progress that even publicly funded work has routinely been locked away for pay, such hope may be naive. We must turn instead to finding creative ways to maintain pressure on Google to keep its project as public-spirited as possible. As Jack Balkin has suggested, private institutions are "where the action is" when it comes to knowledge policy in the digital age.


Posted 8:04 PM by Frank Pasquale [link]

The Catholic Church and intellectual freedom

Sandy Levinson

The Catholic Church, courtesy of Pope Benedict XVI, is currently facing facing "an internal and external political crisis," according to the New York Times. The reason is simple: The German-born and -raised former Joseph Ratzinger has welcomed back into full communion within the Church an excommunicated priest who had not only rejected the reforms of Vatican II, but also denies the existence of the Holocaust. The Vatican has released a statement stating that the views of Richard Williamson were “unknown to the Holy Father at the time he revoked the excommunication.” One may or may not choose to believe this. If it is true, it suggests a failure on the part of Vatican "vetters" that makes any of the Obama team's mistakes small beer indeed.

I obviously have not an iota of sympathy for a Holocaust denier, which is legitimately taken to be synonymous with the most virulent form of anti-Semitism. But I also confess to having very mixed views on reading that the "Vatican Secretariat of State said that Bishop Williamson 'must absolutely, unequivocally and publicly distance himself from his positions on the Shoah.'" What, precisely, is Bishop Williamson supposed to say? A. "I've looked at the relevant materials, and I realize that I've been wrong all these years. It is as if my eyes have genuinely opened for the first time, and I see that the Holocaust really and truly happened. I am grateful to the Holy Father for giving me this opportunity to learn the errors of my previous opinions, and I happily renounce them." B. "Nothing I've read has led me to change my views, which were, obviously, the result of study of the work of David Irving and others who persuaded me by the force of their argument, but I bow to the position of the Holy Father and hereby 'distance myself' from anything I've earlier said. My American friends might think of the position of what they call "inferior courts" who, with some regularity, follow precedents of the United States Supreme Court even if they are not persuaded by these decisions. Thus, to quote an American federal district judge for whom Sanford Levinson once clerked, 'Although I agree thoroughly with the Supreme Court dissenters rather than with the majority in [a recent decision on criminal procedure],it is obvious that this case would on appeal be controlled by [the case]. Therefore, in deference to the superior force and authority' of the Papacy, which is structurally identical to the Supreme Court whose 'force and authority' Judge McMillan was submitting to, I hereby agree to 'distance myself' from the view that I in fact believe and, in deference to the Holy Father, profess to believe something I do not."

The Church obviously has a very checkered history regarding what some of us believe is captured in the notion of intellectual freedom, including the freedom to be dreadfully wrong. "Recantation" or "distancing" would not only raise the most severe questions about Bishop Williamson's own intellectual integrity (assuming one can use such terms with regard to a Holocaust denier); it would also reinforce the view that the Church--especially under the current Pope?--does not intend to be friendly to anyone who fails to toe a given Vatican line.
Posted 4:31 PM by Sandy Levinson [link] (39) comments

Are we becoming Italy?

Sandy Levinson

Stereotypically, at least, Italy is often associated not only with incredibly beautiful scenery, friendly people, and wonderful food, but also with a propensity, shall we say, to avoid paying one's fair share of taxes (or perhaps one could simply skip "fair share"). Taxes may be, as Justice Holmes once suggested, the price we pay for civilization. However, the Holmesian bad man that, in some ways, the legal academy, in league with economists, has helped to create by using the heuristic as in fact the very model of the "rational individual," will try to free load off the "chumps" (Leona Helmsley's famous "the little people who pay taxes") while otherwise minimizing their own contributions to civilization.

One dismaying lesson of the early Obama nominations may be less the problems in his vetting (itself a word more suitable to paranoid world where we are willing to trust no one to be in fact particularly honorable) than realization that the elites in our society can no longer be trusted to engage in a most basic task of citizenship, which is to pay their taxes voluntarily. One assumes that there is nothing all that "special" about the new Secretary of the Treasury or the now-withdrawn nominee for secretary of HHS. And, dare I say it, I presume as well that they don't typify anything special about Democrats (as against all of the honest elite Republicans who, no doubt, urge their accountants to decide any judgment calls in favor of the government).

I am glad that Daschle has withdrawn (in part, I confess, because I blame him for both writing Bush his blank check in 2002 (so the Democrats could campaign that year on domestic issues alone, a brilliant judgment call) and his carrying Citibank's water for the truly dreadful bankruptcy bill that should embarrass all liberal Democrats). Frankly, I wish that the new Secretary of the Treasury had also withdrawn. I see no evidence that he's "indispensable," and I do suspect that he made a lot of people feel that they are chumps in paying their taxes without complaint. One of Ike's most pathetic moments, many decades ago, was his resistance to firing Sherman Adams, of vicuna coat fame (younger readers can Google the episode) because, Ike said, "I need him." I am, as everyone knows, a very, very strong and elated supporter of our new President, but I would be dismayed to think that he "needs" any given individual to the degree that he will overlook behavior that ought to set off alarms. And, to be clear, the alarm is not that Daschle of Geithner will embezzle federal funds; I'm sure that is not the case. Rather, the alarm is precisely that they further serve to reinforce the view of many in the United States, both Democrats and Republicans, that the elites who inhabit our dominant institutions, whether public or private, simply feel entitled to play by a different set of rules. This is, obviously, most apparent with regard to the Wall Street Masters of the Universe, who, one might presume (or at least hope), are largely Republican. But it really doesn't stop there.

UPDATE: The New York Times has just posted an illuminating series of comments.
Posted 3:53 PM by Sandy Levinson [link] (65) comments

Bizarre Contrast On Tax Paying

Brian Tamanaha

For those of us who hope that the Obama Administration will usher in a new day in politics, alas, recent events have raised disappointing reminders of the old. Anyone can make a mistake on taxes, of course. But the tax mistakes of Cabinet nominees Geithner (now Secretary of the Treasury) and Daschle were big ones (in amount and type of error). Daschle's mistake was especially disheartening because it exposed that he made money--big money--by cashing in on his political connections. Nothing new there.

Thankfully, Daschle withdrew from consideration, saving President Obama further embarrassment (off to earn even bigger money now that his connections to the Administration have been confirmed). It's a ritual of politics for a President to stand behind the nominee under these circumstances, as Obama did, but a more dramatic statement about change would have seen the President walk to the podium and say that he is withdrawing the nomination--duly thanking Daschle for his willingness to serve, but declaring that in the new era of government high level officials will be held to a higher standard. Now that would be a new day.

But I digress.

The point of this post is to raise the odd contrast between the front page story and a back page story in the New York Times yesterday. The front page story was about Daschle (and Geithner) underpaying tens of thousands of dollars of taxes.

The back page story was about illegal immigrants who are dutifully paying taxes (according to the IRS, $50 billion dollars between 1996 to 2003). Indeed, these illegal immigrants are so anxious to pay their taxes that they have utilized fraudulent social security numbers to do so. The rub is that--to the dismay of the IRS--various law enforcement authorities are now seeking to use the tax records to find the illegal immigrants and bring them to justice.

The article suggests that these illegal immigrants have an ulterior motive for paying taxes, hoping this provides evidence that they will be good citizens. And it's impossible to know whether they have paid the full amounts due. What is clear is that these people by and large do not make a lot of money, yet they willingly hand over a chunk of it to Uncle Sam, at risk of getting caught and losing everything.

The contrast seems bizarre: two public-minded elites substantially underpay their taxes (yet earn nominations to Cabinet posts), while illegal immigrants duly pay their taxes (and authorities use these payments to track them down).




Posted 1:44 PM by Brian Tamanaha [link] (31) comments

Connecticut Federal Judge Quits, Citing the Lack of a Cost of Living Adjustment as the Reason

David Stras

Because I have blogged quite a bit about judicial pay, a reader sent me an article from the Connecticut Post reporting that a senior federal district court judge from Connecticut, Alan Nevas, made a decision to retire from the federal judiciary and cited the lack of cost-of-living increases from Congress as the reason for his decision, see here. Some excerpts from the article:

So when Congress once again failed to enact a cost of living pay adjustment for federal judges despite giving similar increases to themselves and every other federal employee, Nevas had enough.

"Congress voted themselves a raise this year, but they continue to treat federal judges as if they were second-class citizens," said Nevas, who turns 81 in March. "What they are doing is unfair and unrealistic."

So, late Friday afternoon, Nevas hung up his black judicial robe for good.

The latest failed attempt to increase federal judges' salaries came as an attachment to the December automobile bailout bill. That attempt railed U.S. Sen. Claire McCaskill, D-Mo.

"Wrong time. Wrong place," McCaskill was reported saying in the Senate. "We have unemployment numbers today that are the highest unemployment in this country that we have had in decades. We have families all over this nation that are scared today, that aren't buying Christmas presents."

She went on to say: "Federal judges get lifetime appointments and they never take a dime's cut in pay. They die with the same salary they have today. And my phone is ringing off the hook ... from people who want to be federal judges."

Those comments rankled Nevas.

"What she neglected to say is that she, the rest of Congress and all other federal employees, except the judges, were going to get a cost of living adjustment on Jan. 1," he said. "What she said was unfair."

Analysis after the jump.

Let me say at the outset that though I am unfamiliar with Judge Nevas, it is generally a loss to the federal judiciary when any of its senior members, who are essentially working for free (because they could retire with full salary), leave. As I wrote in an article published in the Cornell Law Review about two years ago, senior judges provide a great service to the federal judiciary by performing an appreciable amount of judicial work. Indeed, some senior judges, particularly at the district court level, keep a full caseload.

And while I have previously written (on this blog) that Congress should give cost-of-living adjustments to federal judges to adjust their salaries to keep pace with inflation, particularly when Congress votes such raises for its own membership, Judge Nevas' retirement does not make the strongest case for a judicial pay raise. It is notable when active judges resign their post in the federal judiciary on account of low pay because those judges not only give up their coveted position but also their lifetime pension benefits. A senior judge has already by definition satisfied the "rule of eighty," which means that Judge Nevas should be statutorily entitled to his pension benefits for life, even as a retired judge. While it is true that he will receive the salary of the office at the time he fully retired and not be eligible for any future pay raises passed by Congress, given Congress's inability to give judges a pay raise of any kind, it is not clear that he is giving up very much other than the prestige associated with the office. Therefore, while it is a loss whenever members of the federal judiciary fully retire from the bench, I am not sure that Judge Nevas's decision to retire (or that of any other senior judge) is as compelling of a statement for a judicial pay raise as at first appears.

Posted 10:25 AM by David Stras [link]

The Future of Free Expression in a Digital Age

JB

I have posted a short essay, The Future of Free Expression in a Digital Age, on SSRN. Here is the abstract:

In the twenty-first century, at the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the judge-made doctrines of the First Amendment seem increasingly irrelevant to the key free speech battles of the future. The most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. Moreover, the values of freedom of expression will become subsumed withing a larger set of concerns that I call knowledge and information policy. The essay uses debates over network neutrality and intermediary liability as examples of these trends.

Freedom of speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression. Properly designed, it gives people opportunities to create and build technologies and institutions that other people can use for communication and association. Hence policies that promote innovation and protect the freedom to create new technologies and applications are increasingly central to free speech values.

The great tension in twentieth century free speech theory was the increasing protection of the formal freedom to speak against the background of mass broadcast technologies that reserved practical freedom to a relative few. The tension in twenty-first century free speech theory is somewhat different: New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization - are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.

Posted 8:05 AM by JB [link]

Search Engine Secrecy and the Public Sphere

Frank Pasquale

Should we worry about search engine bias? Consider some Republicans' fears that Google, a culturally liberal company, is skewing search results to favor Barack Obama and marginalize the right. Fox News yesterday reported conservative discontent at Google's rapid response to manipulated search results mocking Barack Obama, after its glacial efforts to defuse a "google bomb" aimed at George W. Bush:

In 2003, President Bush's detractors successfully gamed the Google search engine by arranging to have countless Web sites link the words "miserable failure" to Bush's official biography on the White House Web site. The result was that when someone typed the search term "miserable failure" into the Google search box, Bush's bio rose to the top of the search results. And that's how it stayed until 2007, when Google developed an algorithm to detect what became known as "Google bombs" and re-directed the term "miserable failure" to non-political pages.

Unfortunately for Obama, "miserable failure" reverted back to his bio when he moved into the White House. The new president was also Google-bombed with the phrase "cheerful achievement." But this time, Google stepped in quickly, rectifying the situation in a few days, instead of four years. The difference in time did not go unnoticed. "You let this go on for the entire Bush administration," a reader named w3bgrrl wrote on a Google blog. "But since you bought the White House for Obama, you don't want your candidates harmed . . . And your claims not withstanding, even liberals know you're liberal."

There are many good reasons for the difference in treatment; search guru Danny Sullivan discusses some of them in the same article. Google may dismiss such manipulation as a silly prank that really shouldn't be its concern. In NRA patois: Google doesn't produce biased results, google bombers produce biased results.

I still think that political google-bombing merits some attention. As I've noted in blog posts and an article, campaigns are a struggle for salience. As more people form an image of candidates from search results (or related Google properties), we might worry that allegedly neutral, algorithmic representations of authority and popularity are really being influenced by a hidden agenda.

For example, Cory Doctorow's short story Scroogled imagines a Google tightly integrated with DHS and quite willing to use its control of personal information to influence politics. (In Doctorow's story, the company "cleans up" results relating to "members of the Senate Commerce Committee up for reelection.")

I doubt anything like that is happening now, but I'm worried about the fact that no one can verify that it's not. Google's search engine algorithms are a tightly guarded secret, defended in cases like Gonzales v. Google. Theoretically they could be disclosed in a protective order--but what cause of action (or standing?) would a citizen have to sue a search engine over its presentation of data about a given person or entity? One key question for technology policy is whether we will permit Google to assert trade secrecy to the point that we cannot determine whether a scenario like the one envisioned by Doctorow has come to pass.

If you think of Google as analogous to a newspaper, that would not be a problem (and perhaps that result might be mandated by some combination of Miami Herald v. Tornillo and NAACP v. Alabama). However, I think it's better to analogize search engines to phone or cable companies, and to expect commensurate levels of transparency and regulation.

Search engines have some good reasons for keeping their algorithms confidential--if they were public, manipulators of results could quickly swamp Google users with irrelevant results. However, just as Comcast can't avoid net neutrality regulation by saying all its traffic management and spam-fighting methods are trade secrets (or unregulable opinions), Google should not be able to act as an unchallenged "Lord of the Memes" simply by hiding behind these legal doctrines. Moreover, there are ways of developing a qualified transparency that would let a trusted third party examine a search engine's conduct without exposing its business methods for all the world to see.

Compare our dilemmas here to those posed by national security law--another area where we struggle to balance the values of openness and confidentiality. Just as the FISA Court has the right to review even sensitive national security data to assure the rule of law, an analogous institution should be developed to enable regulators at the FTC or FCC to comprehend how dominant search engines' algorithms are developing--and to detect untoward manipulation. Danny Weitzner has highlighted the importance of such a panel in the privacy context, based on his experience in open standards communities:

In the 1990s, the FTC under Christine Varney’s leadership pushed operators of commercial websites to post policies stating how they handle personal information. That was an innovative idea at the time, but the power of personal information processing has swamped the ability of a static statement to capture the privacy impact of sophisticated services, and the level of generality at which these policies tend to be written often obscure the real privacy impact of the practices described. It’s time for regulators to take the next step and assure that both individuals and policy makers have information they need.

A trusted advisory committee within the FCC or FTC should be formed in order to help courts and agencies adjudicate coming controversies over search engine practices. Qualified transparency here is the only chance we have to develop what Christopher Kelty calls a "recursive public"--one that is "vitally concerned with the material and practical maintenance and modification of the technical, legal, practical, and conceptual means of its own existence as a public." Questioning the power of a dominant intermediary like Google is not just a prerogative of "the left." Rather, it's a prerequisite for assuring a level playing field online.


Posted 2:20 PM by Frank Pasquale [link]

Emergency as opportunity

JB

Christopher Caldwell compares the Democrats' response to the fiscal crisis to a key element of the Bush' Administration's response to the 9/11 terrorist attacks: the invasion of Iraq:

Whether reasonable or unreasonable, the Democrats’ spending priorities antedate the financial crisis. Pre-existing agendas in politics are easily painted as evidence of bad faith. In 2004, as the Iraq occupation ran into trouble, a flurry of books presented the Bush administration’s obsession with Saddam Hussein before 9/11 as prima facie evidence of the administration’s crookedness. Democrats were not noticeably quick to call this standard unfair.

President Obama has gone beyond the minimum requirements of bipartisanship to ensure the stimulus is transparent, once enacted. Accounts of the programmes will be posted on an easily accessible website. At his urging, Democrats stripped non-essential measures that could rile Americans needlessly, such as several hundred million dollars for family planning. And Mr Obama is popular, albeit not as popular as George W. Bush on the eve of the Iraq war.

Bipartisanship offers little shelter over the long run. The stimulus will be expensive, more expensive than the Iraq and Afghanistan wars combined and Nancy Pelosi, Senate majority leader, has called it a mere “down payment”. The stimulus bill, whether it succeeds or fails, could be the Democrats’ Iraq. Like Iraq, it is a long-standing partisan project that is being marketed as an ad hoc response to a national emergency. It reflects the pre-existing wishes of the party’s most powerful interest groups more than the pre-existing wishes of the country. Democrats are now liable to be judged by the standard they created when they abandoned the Bush administration over the Iraq war: you break it, you own it.

Caldwell's is worried that the stimulus contains many provisions that will be hard to end once the economy rights itself: it will contain welfare programs and grants to the states as well as infrastructure investments and big public works projects like the space program that (Caldwell believes) the public can rally around.

The larger and more interesting point, however, is one that I'd like to focus on here. Emergency creates opportunity. In politics, certain proposals for reform may languish for many years because opponents prevent them in a sort of political equilibrium. Crisis or emergency disturbs that equilibrium, changing the space of political opportunities, and thus may make these reforms possible, whether the reforms are good ideas or not.

For example, following the 9/11 terrorist attacks, advocates of reforms in intelligence and surveillance practices pushed for extensive changes in the USA Patriot Act. These reforms were not dreamed up in the days immediately following 9/11; quite the contrary, they had been proposed for many years but lacked political and bureaucratic sufficient support and were thought problematic from a civil liberties perspective. After 9/11 shook up the existing political formation, and created a demand to do something and fast, proponents of these measures saw an opportunity to get what they had been seeking for many years.

Similarly, the 9/11 attacks gave an opening for proponents of overthrowing Saddam Hussein to make the case that he was related to the 9/11 attacks and that, even if this were not so, he was posed an enormous threat that the United States could not afford to take lightly following the deaths of 3,000 Americans. Here again, emergency created an opportunity for people in government to put into practice policies that they had already been advocating for some time, but which were unacceptable politically.

The fact that people take advantage of perceptions of emergency in this way is an undeniable fact of politics. It explains many features of governance, including, for example, the American space race and the investment in science in the midst of the cold war (the launch of Sputnik is often seen as the wakeup call, but America was already investing in science beforehand because the Cold War had been going on for some time).

But the fact that emergency creates opportunity tells you nothing about the quality of what is being proposed in a time of emergency. Some proposals, like the Bush Administration's decision to invade Iraq, have not turned out well at all. The American investment in science during the Cold War (and especially after Sputnik) were probably beneficial on the whole. Some features of the Patriot Act were useful and long needed reforms of intelligence capability, while others were overreaching. In the same way, we can expect that the stimulus will contain some good and bad features judged in hindsight.

The more important criticism to make about the stimulus package is not that it is opportunistic, playing off of emergency, but that the perception of emergency may cause the public and their representatives to look less closely at what government is doing, and to give less than a thorough airing of what is being done. (It's worth noting that in ordinary times representatives may not understand what are voting on in detail, but in emergencies this may be especially so).

In this case, however, Obama, as Caldwell notes, has made efforts to be transparent. It is pretty clear that some expenditures in the stimulus are paving the way for comprehensive national health care reform. But this was a key campaign pledge, so it is hardly surprising that such spending is being included in the stimulus. Indeed, in general Obama is using the opportunity created by the emergency to facilitate some key campaign ideas-- like infrastructure investment-- that would have required considerable expenditures and would meet with more resistance in ordinary times. But these are not ordinary times, and so he is using the emergency as a method of changing political priorities. (Roosevelt did something similar during the New Deal). Ultimately, whether this is a good thing or a bad thing depends on the quality of the policies that he pushes through during this crucial period, and whether the programs and investments we make today pay off in the future. We will not know for some time.



Posted 10:25 AM by JB [link]