Bottom-up

An oft-repeated criticism of the Citizens United decision is that the protections enumerated in the Bill of Rights apply to individuals, not corporations. This is an argument that seems plausible on first glance, but as Julian nicely illustrates, it falls apart quickly upon closer examination:

Having dispensed with the repellent doctrine of corporate personhood, we can happily declare that journalists enjoy full freedom of the press … as long as they don’t plan on using the resources of the New York Times Company or Random House or Comcast, which as mere legal fictions can be barred from using their property to circulate unpatriotic ideas. You’re free to practice your religion without interference — but if it’s an unpopular one, well, let’s hope you don’t expect to send your kids to a religious school or build a church or something, because those tend to involve incorporating. A woman’s right to choose is sacrosanct, but since clinics and hospitals are mere corporations with no such protection, she’d better hope she knows a doctor who makes house calls.

As Glenn Greenwald explains, the four liberal justices who dissented in Citizens United did not rely on the idea that free speech rights are limited to natural persons. Instead, they argued that the danger of corruption is a sufficiently compelling state interest to survive the “strict scrutiny” typically applied to limits on speech. All nine justices acknowledged that corporations have free speech rights and that the limits on corporate speech in the Bipartisan Campaign Reform Act were subject to First Amendment scrutiny.

I’ve updated my disclosure statement, which now includes all sources of income through the end of 2009. The only significant change is the addition of an honorarium I received from a firm called “Qualitative Insights” for participating last month in a half-hour interview about my views on “Internet infrastructure.” Although they wouldn’t tell me who the client was, it became clear from the questions being asked that that the client was VeriSign. Most of the questions concerned the upcoming renewal of Verisign’s contract to administer the .com and .net domains.

I haven’t yet seen any significant coverage of this issue, but coverage of the last contract renewal suggests that the current contract runs until 2012. ICANN is apparently in the habit of awarding Verisign no-bid contracts on the grounds that no other firm would have the capacity to take over the domain. Verisign, understandably enough, would like to preserve this arrangement.

The interview resembled a one-person focus group, with the interviewer first asking for my general impressions of various Internet companies, and then reading me various potential Verisign talking points and soliciting my feedback. At one point she even read me a hypothetical statement from Verisign’s CEO and asked me to react to it. I can see how this sort of preparation could be valuable as Verisign prepares its PR strategy. While I’m not personally influential enough to be worth paying a ton of attention to, I probably am representative of a segment of online opinion, and getting my reactions in private probably helps them craft their talking points to anticipate the objections of people like me.

For what it’s worth, I didn’t find Verisign’s talking points very convincing. The interviewer ran through out a variety of reasons for avoiding a competitive bid, but none of them struck me as especially persuasive. If it’s true that no other firm is qualified to run the .com domain, then Verisign will likely be able to put together the strongest bid. And in any event, the threat of losing a competitive bid strengthens ICANN’s hand in negotiations, which will ultimately mean lower fees for consumers who register .com and .net domains.

I hope the tech blogosphere pays more attention to this issue in the coming months. I’m sure Verisign would love nothing more than a low-key renewal process that allows Verisign to continue jacking up fees for domain registrations. Thorough coverage of the issue will strengthen ICANN’s hand (and/or stiffen its spine) in negotiations, which will save the rest of us millions of dollars when we renew our domains.

The Supreme Court handed down its decision in Citizens United v. FEC, a case that considered whether the FEC could regulate the publication of a movie critical of Hillary Clinton via a video-on-demand service. My celebratory tweeting attracted skeptical responses from Chris Hayes and Ken Fisher, who see this as an issue of “corporate money in politics.”

Part of my disagreement with these guys is that I’m just a free speech zealot. The First Amendment says “Congress shall make no law…abridging the freedom of speech.” While I wouldn’t say there’s no room for interpretation, I have trouble seeing a plausible reading that allows the FEC to limit the distribution of a documentary criticizing Hillary Clinton. The best you can say, I think, is that limiting corporate influence is a “compelling state interest” sufficient to overcome the First Amendment’s ban on speech abridgment, but that’s just another way of saying that you don’t care about free speech very much.

Second, I think it’s important to remember that “corporations” encompass much more than large, for profit businesses. They also include a wide variety of non-profit and advocacy groups, including groups like the ACLU, the NRA, and NARAL that are, by any reasonable definition, grassroots organizations advocating the views of large numbers of voters. Indeed, as the ACLU pointed out in its amicus brief, the Bipartisan Campaign Reform Act (BCRA) prohibited the ACLU from running ads criticizing members of Congress who voted for the awful FISA Amendments Act of 2008. Even if you think it’s appropriate for Congress to regulate the speech of Exxon-Mobil and Pfizer, I think it’s awfully hard to square the First Amendment with a law that limits the ability of NARAL or the NRA to advocate for its members’ views.

But more fundamentally, I don’t buy the idea that limiting corruption is a state interest sufficiently compelling to overcome the First Amendment interest in free speech. I think supporters of BCRA misunderstand how corporations wield influence and dramatically overestimate the power of television advertisements. It’s true, of course, that a corporation prepared to spend $1 million on ads criticizing a particular legislator will get that legislator’s attention. But there’s nothing unique about this. It can also get his attention by hiring a lobbying firm that employs a former staffer. It can get his attention by arranging $100,000 in bundled contributions from executives, clients, and friends of the company. It can get his attention by creating astroturf organizations. And there are probably lots of other mechanisms I haven’t thought of.

The key difference between independent expenditures and these other mechanisms is that the independent expenditures are the most open and transparent. To run an effective “issue ad,” a corporation has to make an argument that is persuasive voters. I don’t want to sugar coat the situation; sometimes independent expenditures finance ads that are sleazy and misleading. But given a choice between corporations spending their money on ads about how Senator Smith hates America or spending their money on K Street, I’ll take the ads, because at least voters still get the final decision.

Moreover, I think we’re moving toward a world in which traditional high-dollar advertising campaigns will become increasingly ineffective. Chris compares the post-Citizens United world to a debate in which “you get 10 seconds to make your case. I’ll take an hour.” This description of the world had a certain plausibility when most people got their news from newspapers and television—media characterized by severe, technologically-imposed bottlenecks. These bottlenecks meant that those willing to spend more money could get a significantly bigger soapbox.

This is a lot less true online where users have practically unlimited choices. The web is littered with lavishly funded corporate propaganda that gets a fraction of the traffic of Biong Boing. Indeed, money literally cannot buy the kind of large, loyal audience that Cory Doctorow has earned. Buying BlogAds on Boing Boing simply doesn’t compare to being a contributor to Boing Boing itself. And of course Boing Boing’s audience would evaporate if they let a Pfizer lobbyist start posting there.

So I’m not thrilled at the idea of Fortune 500 companies spending more money on bogus “issue ads.” But I think the dangers of such ads are frequently exaggerated. I’m far more worried about preserving the right of organizations like the ACLU to spread their message. And I don’t see any plausible way to stop the former without seriously restricting the latter. So I’m glad to see the Supreme Court take the words of the First Amendment—”Congress shall make no law”—literally.

My friends Jerry and Cord have launched a new website that’s worth checking out if you’re at all involved with the creation or maintenance of websites—and these days that’s a lot of us. The site, called ReadyMadeWeb, keeps you up-to-date on software tools for building a modern website quickly and cheaply. They explain how to use venerable tools like FeedBurner and Flickr, and they review newer tools to see how they stack up.

ReadyMadeWeb meshes with the themes of this blog in a couple of ways. First, many of the tools Cord and Jerry talk about represent disruptive innovation in the software industry. For example, they have a post comparing GMail to hosted Outlook and find that GMail is dramatically cheaper. And this isn’t just a matter of more aggressive pricing on Google’s part. GMail is cheaper than Outlook because it has a fundamentally different architecture and business model: one that dispenses with dedicated servers and expensive tech support personnel in favor of web-based administration.

Second, while ReadyMadeWeb is thoroughly apolitical, the about page does a good job of articulating the link between open source software and freedom:

It’s common for web design firms to offer to build you a custom, one-of-kind platform for your website at premium price. As you may already know, these custom solutions are often too custom, straying away from industry standards and making your website so custom that’s it’s compatible with little else. To make matters worse, the company that just build your white elephant has to maintain it, because no other web developer would know what to do with it. This sort of approach locks customers into relationships with contractors who can hold them hostage for whatever labor and maintenance charges they choose.

The ReadyMadeWeb philosophy helps you avoid this sort of trap. So long as you choose widely-used, open-source software you’ll never be stuck with a bad contractor as there are thousands of developers who work with these platforms. By choosing open source, you’ll also gain the benefits that come along with joining a community of hundreds of thousands of users and developers using the same platform—that means countless pre-made designs and functionality add-ons along with user groups, forums, and to help you use your site without the help of a developer.

Choosing proprietary software means ceding a chunk of autonomy to a third party. This isn’t always a bad decision—in some cases, the proprietary option is just the best one available. But I do think people tend to underestimate how valuable it is to have software that’s not only “free as in price” but “free as in freedom.” The costs of extricating yourself from the clutches of an incompetent or avaricious software vendor can be much higher than the sticker price on the software itself.

Of course, you won’t find much of this kind of preaching on ReadyMadeWeb. The blog is focused on the nuts and bolts of running a successful website on a budget. The advice looks excellent, and I encourage you to check it out.

Back in October, I praised a Kerry Howley essay for Reason in which she criticized libertarians who focus exclusively on threats to liberty that originate with the state. And I pointed to the free software movement as an example of a pro-liberty movement that doesn’t primarily focus on the state as a threat to liberty.

The last few years have witnessed the rapid growth of another liberal project: the free culture movement and its student arm, Students for Free Culture. SFC’s mission is to “build a bottom-up, participatory structure to society and culture, rather than a top-down, closed, proprietary structure.” Copyright reform is an important part of the movement’s agenda, but in my view its more important role is building the infrastructure for a free culture. They promote the use of creative commons licenses, educate creative people about the value of a free culture, lobby for universities for open access scholarship, and so forth. These are steps that enhance freedom without any changes to copyright law.

So I was excited to be invited to be on a panel at Free Culture X, SFC’s 2010 conference. I’ll be speaking about “The Politics of Open Networks.” If you’re in the DC area, I hope to see you there.

More US taxpayer money being spent to prevent Haitians from escaping Haiti:

Every day, a United States Air Force cargo plane specially equipped with radio transmitters flies for five hours over the devastated country, broadcasting news and a recorded message from Raymond Joseph, Haiti’s ambassador in Washington.

“Listen, don’t rush on boats to leave the country,” Mr. Joseph says in Creole, according to a transcript released by the Pentagon. “If you do that, we’ll all have even worse problems. Because, I’ll be honest with you: If you think you will reach the U.S. and all the doors will be wide open to you, that’s not at all the case. And they will intercept you right on the water and send you back home where you came from.”

Homeland Security and Defense Department officials say they are taking a hard line to avert a mass exodus from the island that could lead to deaths at sea or a refugee crisis in South Florida. Haiti’s capital, Port-au-Prince, is about 700 miles from Miami…

The State Department has also been denying many seriously injured people in Port-au-Prince visas to be transferred to Miami for surgery and treatment, said Dr. William O’Neill, the dean of the Miller School of Medicine at the University of Miami, which has erected a field hospital near the airport there.

“It’s beyond insane,” Dr. O’Neill said Saturday, having just returned to Miami from Haiti. “It’s bureaucracy at its worse.”

Notice that the problem with “a refugee crisis in South Florida” isn’t the “refugee crisis” part—Haiti is already a nationwide refugee crisis. The problem is the “in South Florida” part. We Americans like our charity to be clean and abstract. Texting $10 to the Red Cross is convenient and lets us feel good about ourselves. Best of all, it’s a form of charity that keeps the Haitian people themselves far away, so that we can go back to ignoring them and letting them starve when we get bored with the Good Samaritan act.

My brother was in Haiti when the Earthquake struck. He was lucky to be on a building that didn’t collapse, and so he wasn’t injured. He spent the next several days helping dig people out from under the rubble, assisting doctors with basic medical tasks, and so forth. After the first day of hard work, he found his way to the American embassy, which was built like a fortress. He tells me it looked like we had transplanted a chunk of the midwest to Haiti. The compound had manicured lawns, air conditioning, independent electricity and water supplies, and so forth. He was able to take a shower, get food to eat, and have a safe place to sleep. On Friday, as disaster-relief professionals were beginning to flood into the country, he got a ride back to the United States on the return flight of an Air Force plane that was sending supplies down to Haiti.

Obviously, no similar amenities were available to native Haitians. Many slept on the streets, and there remains a very real danger of mass starvation if aid doesn’t arrive in time. And of course most Haitians don’t have the option of hopping on a jet bound for the United States. That’s a tragedy because evacuation is crucial to crisis management. Hundreds of thousands of people fled New Orleans in the wake of Hurricane Katrina. Evacuation was not only a good decision for many of the people who evacuated; it also eased the load on overwhelmed emergency workers.

The difference, of course, is that American immigration law prevents the vast majority of Haitians from coming to the United States. True, the American government has grudgingly allowed Haitians who are already here illegally to stay for another 18 months. But the our immigration policy remains essentially hostile to Haitian immigrants:

[Homeland Security Secretary Janet] Napolitano warned that no new arrivals would get amnesty and the U.S. Coast Guard and other authorities would move quickly to stop new migrants. “People should not leave Haiti with the false belief that they will be entitled to TPS in the United States,” she said. She also said, “We are seeing no signs of any sort of migration of that nature at this point.”

In the wake of Katrina, Gov. Perry put out the welcome mat for Katrina refugees and even airlifted some refugees to other states whose emergency facilities weren’t so overtaxed. If he had instead tried to block people from fleeing to Texas from New Orleans in the days after Katrina, (something that, fortunately, he didn’t have the authority to do) we would all have castigated him for his callousness. Whatever minor inconveniences Texans might have suffered from the presence of New Orleanians would clearly be outweighed by the scale of the human tragedy that was Hurricane Katrina.

For reasons that aren’t clear to me, most Americans have very different intuitions about human beings in Haiti who are, if anything, in even more desperate straits. Not only are we not putting out the welcome mat, we’re actually spending taxpayer dollars to prevent Haitians from reaching our shores.

I think it’s fitting that this tragedy is unfolding around the Martin Luther King holiday. I agree with Chris Hayes that Dr. King would not have wanted us to turn him into a bland patron saint of “service.” Dr. King devoted his life to fighting segregation, one of the great injustices of his time. I think that the best way to carry on his legacy is to identify and attack injustices in the contemporary world. And in my view, our immigration laws are among our most morally bankrupt.

Indeed, our national conversation about immigration policy is far behind where the Civil Rights movement was when Dr. King arrived on the scene in the 1950s. By the late 1940s, civil rights advocates had developed a compelling moral critique of Jim Crow. The early Civil Rights pioneers weren’t afraid to talk about the struggle against Jim Crow as part of the centuries-long struggle for universal human rights. They clearly understood that Jim Crow was bad not because it hurt whites or “the economy,” but because it was unjust to black people.

In contrast, the contemporary debate over immigration policy takes it as a given that people not born in the United States have few rights that the U.S. government need respect. Advocates of immigration reform routinely concede that immigration policy should be evaluated almost exclusively in terms of its costs and benefits to native-born Americans and the American economy, with the rights and interests of prospective immigrants receiving little or no weight. We feel sorry for the Haitians, of course; we’re giving them millions of dollars in aid. But when the crisis is over and the flow of aid stops, we expect them to meekly accept that they’re going to spend the rest of their lives living in desperate poverty and constant fear. We might care about them, but we don’t care about them very much—certainly not enough to give them access to the tremendous opportunities that citizens of wealthy countries take for granted.

In his famous “Letter from a Birmingham Jail,” Dr. King wrote disparagingly of white moderates who pressed civil rights activists for patience. King understood that asking blacks to wait until the white majority spontaneously decided to give blacks their freedom effectively meant asking blacks to wait forever. People in positions of privilege almost never feel any urgency about reform. I think demands that prospective immigrants wait in line until we feel like letting them are made in are in a similar spirit. We admit only a tiny fraction of the low-skilled immigrants who would like to come here, and so (to paraphrase Dr. King) “wait” almost always means “never” for low-skilled immigrants.

Over at the New York Times “Room for Debate” blog, I discuss whether Google can help defeat Chinese censorship:

Google can also help by embedding privacy-preserving and censorship- circumventing technologies more deeply into its existing products. Its recent decision to encrypt GMail access by default is a good example. Google might consider bundling circumvention software like Tor with its “Google Pack” of desktop software. The more ubiquitous such software becomes, the harder it will be for the Chinese government to distinguish innocuous uses of the technology from subversive ones.

Still, there will never be a purely technological solution to censorship because censorship is not primarily a technological project. No software can protect a Chinese citizen from the knock on his door when he’s caught using circumvention software. Nor can any software allow him to publish criticisms of the government without fear of reprisal.

Read the rest of my contribution, and the contributions of Jonathan Zittrain, Steven Bellovin, and others, here.

Google made a surprising announcement on Tuesday that it is considering pulling out of China in the wake of a sophisticated attack on its infrastructure.

One aspect of Google’s post that hasn’t received a lot of attention is Google’s statement that “only two Gmail accounts appear to have been accessed, and that activity was limited to account information (such as the date the account was created) and subject line, rather than the content of emails themselves.” A plausible explanation for this is provided by this article (via James Grimmelmann) at PC World:

Drummond said that the hackers never got into Gmail accounts via the Google hack, but they did manage to get some “account information (such as the date the account was created) and subject line.”

That’s because they apparently were able to access a system used to help Google comply with search warrants by providing data on Google users, said a source familiar with the situation, who spoke on condition of anonymity because he was not authorized to speak with the press.

Obviously, this report should be taken with a grain of salt since it’s based on a single anonymous source. But as Julian Sanchez pointed out yesterday, it fits a pattern identified by a group of eminent computer scientists in an excellent 2007 paper: when communications systems are changed to make it easier for US authorities to conduct surveillance, it necessarily increases the vulnerability of those systems to attacks by other parties, including foreign governments.

The paper points to a 2006 incident in which unknown parties exploited vulnerabilities in Vodafone’s network to tap the phones of dozens of senior Greek government officials. According to news reports, these attacks were made possible because Greek telecommunications carriers had deployed equipment with built-in surveillance capabilities, but had not paid the equipment vendor, Ericsson, to activate this “feature.” This left the equipment in a vulnerable state. The attackers surreptitiously switched on the surveillance capabilities and used it to intercept the communications of senior government officials.

It shouldn’t surprise us that systems built to give law enforcement access to private communications could become vectors for malicious attacks. First, these interfaces are often backwaters in the system design. The success of any consumer product is going to depend on its popularity with customers. Therefore, a vendor or network provider is going to deploy its talented engineers to work on the public-facing parts of the product. It is likely to assign a smaller team of less-talented engineers to work on the law-enforcement interface, which is likely to be both less technically interesting and less crucial to the company’s bottom line.

Second, the security model of a law enforcement interface is likely to be more complex and less well-specified than the user-facing parts of the service. For the mainstream product, the security goal is simple: the customer should be able to access his or her own data and no one else’s. In contrast, determining which law enforcement officials are entitled to which information, and how those officials are to be authenticated, can become quite complex. Greater complexity means a higher likelihood of mistakes.

Finally, the public-facing portions of a consumer product benefit from free security audits from “white hat” security experts like my colleague Bill Zeller. If a publicly-facing website, cell phone network or other consumer product has a security vulnerability, the company is likely to hear about the problem first from a non-malicious source. This means that at least the most obvious security problems will be noticed and fixed quickly, before the bad guys have a chance to exploit them. In contrast, if an interface is shrouded in secrecy, and only accessible to law enforcement officials, then even obvious security vulnerabilities are likely to go unnoticed and unfixed. Such an interface will be a target-rich environment if a malicious hacker ever does get the opportunity to attack it.

This is an added reason to insist on rigorous public and judicial oversight of our domestic surveillance capabilities in the United States. There has been a recent trend, cemented by the 2008 FISA Amendments toward law enforcement and intelligence agencies conducting eavesdropping without meaningful judicial (to say nothing of public) scrutiny. Last month, Chris Soghoian uncovered new evidence suggesting that government agencies are collecting much more private information than has been publicly disclosed. Many people, myself included, oppose this expansion of domestic surveillance grounds on civil liberties grounds. But even if you’re unmoved by those arguments, you should still be concerned about these developments on national security grounds. As long as these eavesdropping systems are shrouded in secrecy, there’s no way for “white hat” security experts to even begin evaluating them for potential security risks. Which means systems intended to help us spy on the bad guys may instead be helping the bad guys spy on us.

(Cross-posted at Freedom to Tinker)

This is the season for end-of-the-decade roundups, and the tone has been glum. I’m inclined to agree with Reihan Salam’s contrarian take: we shouldn’t let the obvious negative trends blind us to positive trends that are subtler but may be more important in the long run. In technology, for example:

At first, the iPhone was a way for people to cram a cell phone, iPod, and datebook in the slender pockets of your skinny jeans. With the advent of applications, it’s become an infinitely expandable device that is much more like a baby computer than a cellphone on steroids. It’s only natural that people are increasingly transitioning from expensive laptops to cheapo netbooks that work on the rare occasions when the iPhone won’t do the job. The iPhone is leading us towards an age of constant connectivity. In the not-too-distant future, your phone, smaller than a fingernail or perhaps a strand of hair, will constantly monitor your vital signs, just in case you’re on the verge of catching a cold. It will even warn you when an ex is around the corner, sparing you an awkward encounter. And without this low dishonorable decade, it would never have happened. Astonishing increases in the quality of the goods we consume like these won’t be captured in crude measurements like GDP, despite the fact that it is a real source of wealth. As grumpy as you might feel on New Year’s Eve, would you really want to go back to the bulky CD players, the lousy supermarkets, and the VHS cassettes of yesteryear? Of course not.

And culture:

the explosion of file-sharing eventually forced a transformation of popular music, dethroning the small oligopoly of major record labels and empowering a new generation of DIY artists. Owl City, a kid from small-town Minnesota, began his spectacular climb up the pop charts by posting his homemade recordings to his MySpace page. A number of truly brilliant and bizarre musicians, like Chad Vangaalen, took a similar path, although not to the same radio-friendly destination. And that’s the whole point—new distribution channels have enabled a larger number of artists and musicians to find audiences and to support themselves by touring, or by adding a modest income from the sale of digital downloads to more-or-less tolerable day-jobs as web designers or prop stylists. This decade saw a turn towards a more diverse and more interesting pop culture.

It’s trendy to claim that ordinary Americans have been losing ground economically over the last decade (if not the last four decades). Reasonable people can disagree about what the official statistics show, but I think Reihan highlights the extent to which government economic statistics have contestable value judgments baked into them from the outset. I derive tremendous value from Wikipedia, Google, free iPhone apps, and the like. Yet official statistics on GDP growth, wages, and the like implicitly assign a value of zero to these things. Likewise, the official statistics don’t do a good job of capturing the roughly 50-fold performance difference between the MacBook Pro I have today and the iMac I had a decade ago, the benefits of being able to watch “The Sopranos” and “30 Rock” instead of “Gunsmoke” and “I Love Lucy,” or the vast differences between Hotmail circa 2000 and GMail 2010.

Now obviously I’m a big nerd, so these kinds of improvements are more important to me than they are to the average American. But the benefits of this kind of unpriced technological progress is hardly constrained to the pocket protector set. My wife’s life is enriched by her access to a vast community of online knitters that didn’t exist 20 years ago, and online retailers offer her a much richer array of high-quality knitting equipment than she could have found before the web. The proliferation of cell phones in low-income communities is erasing the digital divide by allowing minority households to get online via their cell phones. For reasons that aren’t entirely clear to me, the last quarter century has seen an explosion of micro-breweries that have improved the variety and quality of the beer we drink.

I can’t really blame government number-crunchers for failing to take these trends into account. For the most part they don’t have dollar figures attached to them, so it’s hard to see how they could be incorporated into official statistics. But that means we need to think carefully about what these statistics mean. A growing share of our wealth is not just intangible but unpriced. Which means that official economic statistics are going to systematically under-state the amount of wealth we’re collectively creating.

Reihan talks in more detail about his optimistic and increasingly bottom-up view of the world in this Blogging Heads episode with Ross Douthat.