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Following the January 6 riot in which five people died, more than 5,000 members of the National Guard descended on Washington, D.C., ahead of President Joe Biden’s inauguration. The U.S. Capitol was subsequently surrounded with fencing and razor wire, and crowds of uniformed men and women lounged in the halls of Congress. “The last time there were troops sleeping in the Capitol itself was during the Civil War,” the United States Capitol Historical Society’s Jane L. Campbell told Roll Call. Plans are now underway to make many of the defenses permanent.

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Mark Schlefer, who died in November at age 98 in Vermont, lived a full life that included 36 combat missions on a bomber crew in World War II and starting a fund to provide tuition assistance for minority children at D.C.-area private schools. But he will be best remembered for helping draft the Freedom of Information Act (FOIA), a landmark federal law that opened up government records to the public.

In the early 1960s, Schlefer was working as a maritime lawyer on behalf of a shipping company that had been denied tariff documentation by the Federal Maritime Commission to stop at the Mariana Islands. When Schlefer asked for a copy of the legal opinion justifying the decision, he was told it was confidential.

Schlefer couldn’t believe that the government’s interpretation of the law his client was expected to follow was secret, but he soon learned that he wasn’t the only one getting stonewalled. When he brought his problem to the American Bar Association, he learned that two other members of the body were already working with Rep. John Moss (D–Calif.) to draft a transparency bill.

Moss was also working with the American Society of News Editors, which had published an alarming report on government secrecy in 1953. The government’s classification system ballooned in the midst of the Cold War, and there was no clear right to see government records and no clear judicial remedy for those who were denied access.

Moss’ interest in transparency started after he picked a fight with the Eisenhower administration over records on nearly 3,000 federal employees it had fired for having Communist ties. He had been needling successive administrations over their undue secrecy for nearly a decade when Schlefer walked into his office with a draft of the legislation that would become the Freedom of Information Act.

“I had planned just to leave [the draft] with him, but he asked me to sit,” Schlefer later wrote in The Washington Post. “After reading it slowly and carefully, he looked up and said, ‘Mr. Schlefer, I’ll deliver the House. You deliver the Senate.'”

It was an uphill battle. Twenty-seven federal agencies testified on the proposed legislation, all of them in opposition. The Justice Department argued that the bill was unconstitutional because it would violate the separation of powers. But by 1966, Moss, true to his word, acquired a critical mass of support in the House for FOIA, which passed 307–0. (A young Republican named Donald Rumsfeld, who co-sponsored the bill, would later advise Gerald Ford to veto amendments strengthening FOIA. Congress overrode Ford’s veto.)

Schlefer, meanwhile, got the bill in front of the chairman of the Senate Judiciary Committee, where it was shepherded to the floor and eventual passage. President Lyndon B. Johnson privately opposed FOIA. But he was hemmed in by his own party and signed it into law on July 4, 1966, at his Texas ranch.

FOIA established a presumptive right to see government records unless those records qualify for one of nine exemptions. Despite the broad exemptions and lax enforcement of FOIA, it has led to the release of everything from pictures of former Environmental Protection Agency Administrator Scott Pruitt’s $43,000 phone booth to a collection of interviews with Pentagon brass about the U.S. war in Afghanistan that sharply contradicted what they had told the public.

All 50 states passed their own versions of the law. Freedom of information laws now exist, at least on paper, in more than 100 countries.

Schlefer and others’ contributions to FOIA were born out of self-interest but not cynicism or self-promotion. One of the most important features of FOIA is that anyone, not just a lawyer or reporter, has a right to request government documents. “In the drafting, we were adamant that you didn’t have to have an interest to have access,” Schlefer said in a 2017 interview with Vermont’s Bennington Banner. “You could just be a citizen. This was critical.”

As tends to happen, the product of this collaboration proved more popular and durable than any of the individuals behind it could have imagined. In fiscal year 2019, the federal government received 858,952 FOIA requests.

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Four years ago, home bakers in Wisconsin won a court battle allowing them to sell bread, cookies and other baked items without a commercial license. But last year, after Ellie Boehm, 15, began selling macarons she baked, the Wisconsin Bakers Association sent her a letter warning that her business is in violation of the law. It turns out that the Department of Agriculture, Trade and Consumer Protection, which enforces commercial baking licenses, has interpreted the court ruling as applying only to goods baked with flour. Macarons use almond powder instead. Boehm, the Wisconsin Cottage Food Association, and other plaintiffs are now suing the state, saying its interpretation of the original court ruling is too narrow and unfair.

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I’m delighted to report that Prof. Michael Heller (Columbia) and my colleague Prof. James Salzman (UCSB/UCLA) are guest-blogging for the next several days about their new book:

Here’s the summary, and some jacket blurbs:

A hidden set of rules governs who owns what—explaining everything from whether you can recline your airplane seat to why HBO lets you borrow a password illegally—and in this lively and entertaining guide, two acclaimed law professors reveal how things become “mine.”

“Mine” is one of the first words babies learn. By the time we grow up, the idea of ownership seems natural, whether buying a cup of coffee or a house. But who controls the space behind your airplane seat: you reclining or the squished laptop user behind? Why is plagiarism wrong, but it’s okay to knock-off a recipe or a dress design? And after a snowstorm, why does a chair in the street hold your parking space in Chicago, but in New York you lose the space and the chair?

Mine! explains these puzzles and many more. Surprisingly, there are just six simple stories that everyone uses to claim everything. Owners choose the story that steers us to do what they want. But we can always pick a different story. This is true not just for airplane seats, but also for battles over digital privacy, climate change, and wealth inequality. As Michael Heller and James Salzman show—in the spirited style of Freakonomics, Nudge, and Predictably Irrational—ownership is always up for grabs.

With stories that are eye-opening, mind-bending, and sometimes infuriating, Mine! reveals the rules of ownership that secretly control our lives.

“This delicious book will guide you through the confusing maze of ownership disputes that bedevil our daily lives. Who owns your ‘private’ information, your Netflix password, your yard’s airspace, and the chair of your deceased parents that you and your sister now both want? It’s often unclear: read and prepare yourself!”
—Jared Diamond, author of Guns, Germs, and Steel, winner of the Pulitzer Prize

“Mine! is one of those rare and treasured books that make you feel smarter and change the way you see the world. So much of the news I read just makes more sense now. I haven’t had an experience like this as a reader since Freakonomics. The authors deliver a rollicking good read, filled with amazing stories about the secret rules of ownership and why they work in unexpected ways. This is way too much fun for an important book by leading minds in their field.”
—Barton Gellman, three-time winner of the Pulitzer Prize and author of Angler and Dark Mirror

“Who knew there are hidden rules of ownership controlling our lives? I didn’t until I read this fascinating, illuminating book.  I’m very glad I did.”
—Robert Cialdini, author of Influence and Pre-Suasion

“A delightful, often funny, book that brings to life the hidden but essential assumptions about how we own things — or imagine we do. It is filled with one irresistible and revealing story after another where the secret turns out to be who owns what, from Adam and Eve to the birth of barbed wire. Mine! will challenge how you think about everything from the groceries in your shopping cart to concert tickets on a scalping site. Make Mine! yours.”
—Charles Fishman, author of One Giant Leap and The Walmart Effect

“A fascinating discussion of what ownership is, what it isn’t, what it might be. It’s immensely clarifying, beautifully written, and perfectly timed—and it might improve the world to boot.”
—Cass R. Sunstein, co-author of Nudge and author of Too Much Information

“Heller (The Gridlock Economy), a professor of real estate law at Columbia Law School, and Salzman (Drinking Water), an environmental law professor at UCLA, examine how competing principles of ownership shape human behavior in this illuminating account…. They stuff their survey with intriguing legal cases and historical lessons and display flashes of wit. Readers will gain fresh insights into the law and society from this entertaining and instructive guide.”
—Publishers Weekly

“Who owns what underlies human conflicts, economic development, innovation, and international relations.  With vivid stories and memorable insights, Heller and Salzman decode legal rules about ownership much as Freakonomics decodes economics and psychological rules of incentives.”
—Martha Minow, Former Dean, Harvard Law School

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In the news roundup, David Kris digs into rumors that Chinese malware attacks may have caused a blackout in India at a time when military conflict was flaring on the two nation’s Himalayan border. This leads us to Russia’s targeting of the U.S. grid and to uneasy speculation on how well our regulatory regime is adapted to preventing successful grid attacks.

The Biden administration is starting to get its legs under it on cybersecurity. In its first major initiative, Maury Shenk and Nick Weaver tell us, it has called for a set of studies on how to secure the supply chain in several critical products, from rare earths to semiconductors. As a reflection of the rare bipartisanship of the issue, the President’s order is weirdly similar to Sen. Tom Cotton’s call to “beat China” economically.

Nick explains the most recent story on how China repurposed an NSA attack tool to use against U.S. targets. Bottom line: It’s embarrassing for sure, but it’s also business as usual for attack teams. This leads us to a surprisingly favorable review of the Cyber Threat Alliance’s recent paper on how to run a Vulnerability Equities Process.

Maury explains the new rules that Facebook, WhatsApp and Twitter will face in India.

Among other things, the rules will require India-based “grievance officers” to handle complaints. I am unable to resist suggesting that, if ever there were a title that the wokeforce at these companies should aspire to, it’s Chief Grievance Officer.

Nick and I make short work of two purported scandals—ICE investigators using a private utility database to enforce immigration law and the IRS purchasing cellphone location data. I argue that the first story is the work of ideologues who would loudly protest ICE access to the White Pages. And the second is a nonstory largely manufactured by Sen. Wyden.

In a story that isn’t manufactured, David and I predict that the Supremes will agree to decide the scope of cellphone border searches.  More than that, we conclude, the Ninth Circuit will lose. The hard question is how broadly the Court decides to rule once it has kicked the Ninth Circuit rule to the curb.

Maury reports that Facebook and Google have pushed the Aussie government into a compromise on paying Aussie media fees for links. Facebook gets the credit for being willing to shoot the family members the government was holding hostage (although in Facebook’s case, the hostage was probably a second cousin once removed). Maury predicts that the negotiations will be tougher once the European Union starts rounding up its hostages.

In quick hits, I claim credit for pointing out years ago that sooner or later the crybullies would come for  “quantum supremacy.” And they have. Maury and I note the rise of audits for AI bias. He’s mildly favorable; I am not. And I close by noting the surprisingly difficult choices illustrated by Pro Publica’s story on how the content moderation sausage was made at Facebook when the Turkish government demanded that a Kurdish group’s postings be taken down.

And more!

Download the 351st Episode (mp3)

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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