Disqus - Latest Comments for AlexHarris

Re: Property as Privacy: The Old Supreme Court Did It Better

AlexHarris — Mon, 13 Sep 2010 10:27:15 -0000

Readers might be interested in a couple of other interesting law review articles on the subject. Stanton Krauss, in "The Life and Times of Boyd v. United States," 76 Mich. L. Rev. 184 (1977), also believed that the demise of Boyd left individual privacy much less protected.

And William Stuntz, in "Privacy's Problem and the Law of Criminal Procedure," 93 Mich. L. Rev. 1016 (1995), celebrated the Court's turn away from Boyd for precisely the same reason I lament it: that had Boyd thrived, it "might have come to play much the same role in constitutional law, and perhaps the same villan's role in constitutional theory, that Lochner v. New York and its ilk came to play. Government regulation required lots of information, and Boyd came dangerously close to giving regulated actors a blanket entitlement to nondisclosure. It is hard to see how modern health, safety, environmental, or economic regulation would be possible in such a regime."

Re: The Deontological Case Against Net Neutrality Regs

AlexHarris — Mon, 21 Dec 2009 05:48:39 -0000

If ISPs committed injustice in the past to get their property, the principle of rectification lays out what can be done to fix the injustice. The principle of rectification definitely does NOT say that whenever I steal something I have to be subject to net neutrality regulation. Rather, it says that I owe compensation to the parties I stole from. This is not what net neutrality regulation does; not only are the customers and content providers who supposedly benefit from the regulation not the parties from whom I stole, but clearly net neutrality is not equivalent to cash compensation. If customers preferred a neutral network to the amount of money it would cost to provide them a neutral network, well then they would get it because companies could make a profit providing a neutral network. (Also, to the extent companies would provide a neutral network anyway, net neutrality regulation does nothing; how can that be compensating for past injustice?)

The fact that there was injustice in the past does not justify piling on more injustice now. We have to actually think about what the principle of rectification says. See pp. 77-82:
http://www.scribd.com/doc/1...

Re: The Deontological Case Against Net Neutrality Regs

AlexHarris — Mon, 21 Dec 2009 01:25:25 -0000

Yeah, fair enough. I only went one level deep. The whole present state of the world is so messed up in terms of who has stolen what from whom... But if it is the case (I have no idea) that the ISPs somehow stole, or got the government to steal for them, other people's property, then we should fix THAT, not impose new regulations on top of the mess.

Re: Sec. 230 is Required by Justice

AlexHarris — Sun, 30 Aug 2009 18:06:25 -0000

Yes, the Principle of Intervening Action applies to meatspace too. It undermines the entire notion of vicarious liability. Instead, in some cases, we'd have indemnification actions.

Re: Best and Worst Supreme Court Decisions

AlexHarris — Thu, 20 Aug 2009 23:17:22 -0000

Meh.

The remedy in Bush v. Gore made NO SENSE. In fact, the reasoning supported essentially an OPPOSITE remedy - a statewide recount on some sort of equal basis. But I'm down with the Court taking Reynolds v. Sims very seriously and making sure votes are counted equally. What was really egregious was that the Court basically admitted it was just making a political, one-off, decision and never used it as precedent to make the states shape up their voting practices.

Re: Section 230: The Cornerstone of Internet Freedom

AlexHarris — Thu, 20 Aug 2009 08:04:37 -0000

Tomorrow, Congress passes a new law: If you are offended by the clothing of anyone you see, you can sue them. If you prove by a preponderance of the evidence that you were subjectively offended - a threshold the statute indicates can be met with a sworn affidavit - you get $10,000 in damages from them and they get one year of jail.

The day after tomorrow, Congress passes another law, repealing that one: No longer can you sue over offensive clothing.

Is the second law a "government mandate"? Not if that term is to have any meaning separate from "act of Congress."

Re: Illinois Bans Sex Predators from Social Networking Sites

AlexHarris — Thu, 13 Aug 2009 09:38:22 -0000

Braden, I'd be interested to find out what the definition of "convicted sex predators" is. That could be even more dangerously sweeping than the definition of "social networking website." Adam pointed to a wonderful Economist feature on America's unjust sex laws earlier this week:
http://techliberation.com/2...
Even those convicted of sexual crimes that aren't crimes any more, such as "sodomy," as well as much more minor crimes (like sexting) are on Megan's Law lists and banned from living in certain areas. I wonder if they're covered by this statute as well.

Re: Advertising and Privacy: No Right to Control What You Give Away

AlexHarris — Thu, 13 Aug 2009 09:13:58 -0000

I should also clarify that the issue is not who the supposed privacy-violator is, but how she got the data. If a corporation were to wiretap your house or lock you in a cell for refusing to give up your information, that would be just as bad as the government doing those things.

And, indeed, people can - and do - make contracts about how the data will be used before they give them away. That's what privacy policies are all about. Corporations that violate their agreements with their users about how they'll treat their data are rights-violating as well. An appropriate role for government is to provide a remedy (now in the form of civil suits for damages) for those violations. I've been talking about the case where a person gives information away with no prior restrictions on its use, or where the website receiving the information actually follows the agreement, but the user complains and demands government action anyway.

But, Steve, you are right about spam. We should have a conversation about the cyber-libertarian view on it. It's one of those areas, like IP, where libertarians disagree about what counts as "property" and what it means to violate it.

Re: Advertising and Privacy: No Right to Control What You Give Away

AlexHarris — Thu, 13 Aug 2009 08:20:44 -0000

Consent, consent, consent!

The spam/unsolicited phone calls issue is entirely different than the one I'm dealing with, targeted ads. Spam is not an invasion of your informational privacy. It does not take information from you. It dumps unwanted messages in your inbox. One can legitimately argue whether or not these are an invasion of your property, in the same way as dumping garbage on your lawn would be. If not, it's hard to see why a denial of service attack would be rights-violating. I tend to lean toward the side that these are rights-violating, because you have not consented to receive just ANY message/phone call, just as you don't consent to receive just ANY visitor into your house or business.

This post is about the data you give away when you visit websites. You decide to visit the website, you have decided to give up the data. You have consented to give away your information, thereby EXERCISING one of the rights you have over it (namely, the right to share it with others). The government does NOT get your consent. The government takes your information, such as by ordering you to give it up or face fines or contempt of court charges and then jail - or just by breaking into your data pipes and taking it directly. It's ridiculous that we lump both of these together as "privacy" concerns and act as if they are the same. If I tell you my medical history, I have no "privacy" complaint that you have it - you have it because I gave it to you!

Re: Want Recovery? Remember Antitrust is Anti-Economy

AlexHarris — Mon, 10 Aug 2009 21:04:58 -0000

I'm not sure you're really using "Regulatory Capture" in quite the right way here... Wayne's post is describing a form of regulatory capture, whereby competitors try to use the government's antitrust enforcement arms to delay or prevent a beneficial new deal or to impose new fines on a rival that customers, on the whole, like better. Regulatory capture is when businesses capture regulatory actions and use them as tools, backed by the force of government, for imposing burdens on their competitors. Businesses banding together to oppose government intrusion is not "capture." Fighting an enemy is not the same as capturing him and using him to do your bidding...

(Of course, I may be misinterpreting your comment. You may mean that some of the companies that indirectly contribute to TLF, e.g. by funding the thinktanks that hire our writers, engage in regulatory capture on certain issues. No question. I'd love to hear who never plays the game in that way that's offering to fund libertarian think-tanks.)

Re: Copyright Duration and the Mickey Mouse Curve

AlexHarris — Thu, 06 Aug 2009 14:47:00 -0000

Uh oh. We're breaking the IP truce within cyber-libertarianism! I'm with you, Tom. Call me if war breaks out.

Re: Belgian Ruling Against Yahoo! Sets Dangerous Precedent for Regulation of Internet

AlexHarris — Mon, 13 Jul 2009 11:34:27 -0000

Word, Berin. That's why libertarians should be skeptical of federalism in the internet context. The same arguments just don't work. Instead of competition fostering a race to be the most business-and-taxpayer-friendly state, the most regulatory jurisdiction dominates.
http://www.openmarket.org/2...

Re: China’s Green Dam Filter and the Threat of Rising Global Censorship

AlexHarris — Thu, 18 Jun 2009 14:08:19 -0000

Does anyone have a list going of coerced filtering/censorship "agreements" between governments and ISPs? I last followed this issue in August and there were already several countries and states in the game:
http://www.openmarket.org/2...

Re: European Regulators Think Consumers Too Stupid to Know How to Download a Different Browser

AlexHarris — Mon, 15 Jun 2009 23:06:57 -0000

Yeah, this is a very pro-Joe-Customer decision. The people who never download any alternative to IE will just LOVE having to use a friend's computer to stick an exe file on a USB key they'll also have to buy.

Re: European Regulators Think Consumers Too Stupid to Know How to Download a Different Browser

AlexHarris — Mon, 15 Jun 2009 22:56:26 -0000

One practical question - When I buy my new Windows 7 computer, how am I going to get Firefox and Chrome if I don't have a browser to download them with? Or is Microsoft just going to clutter my hard drive with MORE out-of-date-by-the-time-I-get-my-computer browsers?

Re: Icing on the (I) Quit

AlexHarris — Wed, 25 Mar 2009 13:22:00 -0000

Man, I would have loved it if law firms had sent me rejection cakes instead of rejection letters.

Re: This Week in Bacon

AlexHarris — Tue, 03 Mar 2009 00:28:55 -0000

Baconnaise was featured on The Daily Show this week. It was pretty priceless.

http://www.baconunwrapped.c...

Re: Privacy Trade-offs: Why We Don’t Really Care about Our Privacy as Much as We Say

AlexHarris — Sun, 01 Mar 2009 19:39:33 -0000

Perhaps an explanation can be found in Bryan Caplan's The Myth of the Rational Voter: People say they want policies enhancing privacy, even if it costs them, because there's basically no chance their simply saying this will change anything. But they reveal their real preferences when they have to trade-off totally internalized costs and benefits. That's in the market, not the political sphere (including the sphere of opinion polls, but the voting booth as well).

Re: Best and Worst Supreme Court Decisions

AlexHarris — Tue, 24 Feb 2009 02:35:52 -0000

The Court did eventually extend the decision to banning not just enforcement of a restrictive covenant by an injunction but also via damages in Barrows v. Jackson. Perhaps I spoke too broadly in saying that Shelley banned private contracts. It may be more akin to laws in some states regarding gambling contracts - they are not banned, but just not enforceable. I would argue that the equal protection clause does not require, and even forbids, this. The state is not itself discriminating when it enforces a contract agreed to by all parties to it - it is merely enforcing the will of those parties themselves (though specific performance may go too far in general, not just in discriminatory covenants). And, moreover, to treat contracts differently based on what they say is to deny certain contracting parties the "equal protection of the laws." I don't think the state should be able to make content-based restrictions on the enforceability of contracts any more than it can make content-based restrictions on speech.

Shelley v. Kraemer has stood for decades as the ground upon which many commentators have attacked the "state action doctrine," which is of course not a doctrine but a plain requirement of the subject of Section 1 of the 14th Amendment. It proposes to find state action depriving a person of the equal protection of the laws any time a private actor discriminates and the state acts, even if the state's action does not deprive anyone of equal protection of the laws.

It is essential to separate permitting from acting, and state action from private action. Shelley undermines this line.

Re: Best and Worst Supreme Court Decisions

AlexHarris — Sun, 15 Feb 2009 23:23:15 -0000

I guess I don't mean to rehash debates about the adoption of the Constitution and secession during the Founding era, but I do think that the Constitution imposes some severe limitations on what the states can do, in addition to what the national government can do. It is true that the national government is bound by more limitations, mostly because the national government has enumerated powers whereas the states have plenary-ish police power. But I think the 14th Amendment, the 9th Amendment, and even Article I Section 10 impose extremely stringent limitations on state power - far more stringent than have ever been recognized. The compact theory doesn't really explain why the states would impose such strong limitations on themselves nor why those limitations should be enforced. It's clearly not all just horizontal federalism!

Re: Best and Worst Supreme Court Decisions

AlexHarris — Sun, 15 Feb 2009 20:54:48 -0000

Admittedly, not really. If I were making a best and worst list for cases implicating tech policy, Reno v. ACLU and Chevron v. NRDC would definitely be on there. But I'd also add quite a few more that have narrower constitutional significance, like Eldred v. Ashcroft.

Also, I'm not exactly a big fan of the Mises Institute view of the Constitution. Didn't they write a bunch of stuff defending secession?

Re: Targeted Online Advertising: What’s the Harm & Where Are We Heading?

AlexHarris — Sun, 15 Feb 2009 13:16:40 -0000

At least it's the FTC, not the FCC, that has taken over the behavioral ad question. Can you imagine how much worse it would be?

Re: Copyright and Coase

AlexHarris — Sat, 14 Feb 2009 01:25:32 -0000

I think you're probably right. Merges is talking about incentives to create collective rights organizations, but this effect is probably swamped by the larger number of individual transactions that have zero transaction costs...

Or perhaps you and Merges differ on the question how predictable fair use is. If you have to go to court every time you want to get a fair use because it's totally unpredictable what will be held fair use and what won't, then obviously fair use won't save any transaction costs and it will create too uncertain of an environment in which to create a collective rights organization.

So, maybe the solution is to make fair use rights really clear and well-defined? More categorical, perhaps.

Re: DC Circuit: Verizon Can’t Try to Keep Customers

AlexHarris — Sat, 14 Feb 2009 00:43:32 -0000

In general, it's better for everyone if Verizon can separate the sheep (customers who are bluffing) from the goats (customers who are serious). If the company can't, it encourages the company to just stop offering incentives altogether. That's why I couldn't get a new cell phone and may be why you couldn't get an incentive from your satellite company. (Note also that the signal doesn't really cost the goats, the serious customers, any more than they're paying anyway. They were going to leave and, as part of that, go through the porting process anyway. Now, if Verizon wants to woo them back, it can only do so once the process is already completed, costs have been sunk, and even more costs have to be incurred to go back.)

Now, the "they should just provide a better service for everyone" argument is what Tim and I were discussing. It is an argument against offering incentives at all. Rather, Tim and you say, Verizon should just put that money into lowering prices or improving service. Above, I argue to Tim that incentives are actually efficient in a market where it is more costly to get a new customer than retain an old one and where competitors, therefore, offer start-up incentives.

Re: Copyright and Coase

AlexHarris — Sat, 14 Feb 2009 00:36:19 -0000

Right, for that particular transaction. But fair use makes the rights less well-defined, so the rights are less certain and therefore less marketable (like having property divided into life estates, subject to condition subsequents, with easements, etc.). I don't think it's a particularly good argument, since it seems like it would just reduce the average value of each right on aggregate, but maybe he has empirical data about how people don't form collective rights organizations for less-than-absolute rights. I don't know.