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For all the apparent consensus about the need for action, the most striking feature of the “techlash” is how little agreement there is on the nature of the problem. Consider some of the complaints about just one company: that Facebook is a monopoly, that Facebook and Facebook-owned Instagram are addictive, that Facebook is making us miserable, that Facebook cannot be trusted with our data, that Facebook is unjustly profiting off our data, that Facebook has a left-wing bias, that Facebook has a right-wing bias, and that Facebook explains the election of Donald Trump.

Muddling matters further, the advocates of decisive action—say, breaking up Facebook—often invoke problems that their preferred solution would do nothing to address. Worse still: In many cases, trying to solve one problem will make another worse.

Consider the choice between prioritising privacy protection and allowing competition and innovation on the other. Internet companies’ misuse of personal data is often bundled together with complaints about monopoly power —privacy looms large in Facebook co-founder Chris Hughes’s case for breaking up the social media company, for example — but the two aren’t as connected as you might think. It’s possible to imagine an internet where strict rules closely guard data about our lives. It’s also possible to imagine an internet that is more open, more dynamic, and therefore a more hostile place for monopolists keen to limit competition and erect barriers to entry. But it is difficult to imagine an internet that is both. 

This tension is most apparent when it comes to data portability, the subject of a recent Facebook White Paper. For some of the most prominent voices calling for action on big tech, it’s essential to make it easier for people to move their data from one platform to another. More generally, the logic of the popular refrain that it is your data is that you should be able to do what you want with that data. But almost by definition, more portable data means less security. The E.U.’s extensive General Data Protection Regulation (GDPR) rules, which came into effect last year, include a “right to data portability.” Exactly what that right entails, and who it can be claimed against, remains unclear.

Professor Luigi Zingales, an economist at the University of Chicago, has argued for something more extensive: a right not just to your data, but to your “social graph”—a record of all your social connections online. That would make it easy for Facebook users to move to a new social network, boosting competition and counteracting the network effects that help put the tech giant in such a position of strength. Here’s how Zingales and his colleague Guy Rolnik explain it: “If we owned our own social graph, we could sign into a Facebook competitor—call it MyBook—and, through that network, instantly reroute all our Facebook friends’ messages to MyBook, as we reroute a phone call. If I can reach my Facebook friends through a different social network and vice versa, I am more likely to try new social networks. Knowing they can attract existing Facebook customers, new social networks will emerge, restoring the benefit of competition.”

Yet it was a more limited form of this openness, albeit for developers and at the discretion of Facebook, that led to the biggest scandal in the firm’s history—or at least its biggest fine. Access to users’ social graph was what made the Cambridge Analytica breach possible, and it set in motion a series of events that ended with a $5 billion penalty for the tech giant. Keen to be seen to have responded decisively to the Cambridge Analytica scandal, Facebook has since tightened access. Leading researchers have complained that the move has hampered research into social networks, reduced Facebook’s accountability for its actions, and—most importantly for this discussion—secured the firm’s market position. “Contrary to popular belief,” writes Axel Bruns, the president of the Association of Internet Researchers, “these changes are as much about strengthening Facebook’s business model of data control as they are about actually improving data privacy for users.” 

If you are a citizen of an E.U. member state and you want the right to export your social graph, don’t hold your breath. GDPR may give you a right to data portability, but anything more extensive would likely be in breach of your online acquaintances’ newly strengthened privacy rights. Whether or not it is the solution Zingales argues it is, European regulators have decided that privacy is more important.

Indeed, it has been more than a year since GDPR came into effect and the impact on online openness and innovation in Europe has been stark. One study found that the law caused the venture capital invested in E.U. startups to fall by as much as 50 percent. The reach of Google’s third-party ad and data tracking services has actually increased, and Facebook’s has declined only slightly; the smallest companies have taken a hit of more than 30 percent. In one survey, 55 percent of respondents said they had worked on deals that fell apart because of concerns about a target company’s compliance with GDPR. 

Far from being a decisive blow against big tech, the legislation so far appears to have cemented the tech giants’ dominant market positions. Some techlash.

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American democracy, and the constitutional system that supports it, appear to be entering an especially dark and dangerous period.

Here’s what we know about Ukraine-gate:** a complaint was filed under the Intelligence Community Whistleblower Act (50 USC 3033) regarding a matter of “urgent concern”—defined in the statute as a “serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information.”

**As is often the case, Lawfare has an outstanding analysis (by Robert Litt) of the legal background of this matter. Highly recommended.

The complaint was sent (as required by statute) to the Intelligence Community Inspector General (ICIG)—a presidential appointee, by the way.  The statute provides that the ICIG “shall determine whether the complaint or information appears credible,” after which he/she “shall transmit to the Director of National Intelligence a notice of that determination, together with the complaint …”

The ICIG apparently found that the complaint did, indeed, “appear[ ] credible,” and he sent it to the DNI.

The statute says what happens next:

Upon receipt of a transmittal from the Inspector General … the Director shall, within 7 calendar days of such receipt, forward such transmittal to the congressional intelligence committees, together with any comments the Director considers appropriate.  Sec 3033(k)(5)(C) (emphasis added).

This, as everyone knows, has not happened; perhaps we will hear more about the reasons for the Administration’s decision not to follow the statutory command when Acting DNI Joseph McGuire appears before Congress on Thursday.

It means that neither the public nor Congress knows what’s in the complaint, and if I were more confident that we (or at least our elected representatives) would find out soon enough, I’d shut up and wait to see what our president did or did not say.

But I am not confident about that, and the basic contours of what we do know (based both on reporting in the Times, the Wall Street Journal, and the Washington Post, and on the President’s own acknowledgment and defenses that he is already putting forward***) are chilling enough.  Apparently, in late July—at a time when his Administration was withholding (at Trump’s explicit direction) almost $400 million in already-appropriated funds targeted for the Ukrainian military—Trump initiated a call to the Ukrainian president, during which he suggested/encouraged, repeatedly, that the Ukrainians coordinate with his personal lawyer (and chief consigliere) and open an investigation into supposed improprieties committed by Joe Biden (on behalf of his son Hunter) when Biden was vice-president.

***See his comments to reporters yesterday:) “The conversation I had [with President Zelensky] was largely congratulatory, with largely corruption, all of the corruption taking place and largely the fact that we don’t want our people like Vice President Biden and his son creating to the corruption already in the Ukraine …” And today, he hammered again on the anti-corruption theme: “If you don’t talk about corruption, why would you give money to a country that you think is corrupt?”

This is an almost unimaginable breach of his duties as president: trading our taxpayer dollars for political dirt on his opponents, and conditioning critical US foreign policy decisions on a foreign government’s help in his campaign for re-election. This is not just a presidential candidate publicly asking for help from a foreign government (“Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing”), as terrible as that was. This is the President of the United States using the power that We, the People have placed in his hands for his personal benefit.

The “anti-corruption” defense is truly laughable, and anyone who thinks that Trump’s true concern here is with rooting out corruption in Ukraine is being taken for a ride; he cares as much about corruption in Ukraine as he does about corruption in Russia, in Saudi Arabia, in the Philippines, or in North Korea, viz. not a whit.

I doubt that the conversation contained an explicit quid pro quo; even Trump would not say “Investigate Biden and I’ll release the money” any more than John Gotti would say “Kill that S.O.B. and I will promote you through the ranks.”  But I can already hear the Trump faithful: “See?!  No collusion!! Just good old corruption-fighting!” And I have faith—or at least hope—that the American people will treat that story with the contempt it deserves.

Presidents cannot act this way. Five or ten years ago, that would have been stating the obvious; are we really debating it now? The US government is not the Trump Organization, and the executive branch is not the Mafia. If our governing principle is “the President can do whatever he damn well wants to,” we are in a very, very perilous state indeed.

Where are the Republicans who will stand up to him on this? Trump famously—and grotesquely—boasted during the campaign that he could gun someone down on Fifth Avenue in broad daylight and not lose any voters; I did not think that he was including members of the House and Senate in this appraisal. The Republicans hold the key here if we are to avoid turning a genuine national crisis into a partisan shitshow.  I have to believe that there are still some Republican office-holders who will finally say: This is over the line. And I have to believe that there are some Republican senators who will, should it come to an impeachment trial, actually listen to the evidence and cast their vote accordingly.

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How can we live free? Governments impose rules and control all land on earth.

“We need a new place to experiment with new rules,” says Joe Quirk of the Seasteading Institute.

Quirk says that if people move 12 miles off the coast, they can build their own cities, or even countries, and make their own rules. Seasteaders dream of building huge platforms in the ocean, places where free people can live and work and practice free association.

A few have already tried to make this dream a reality. Chad and Nadia Elwartowski built a small seastead 12 miles off the coast of Thailand. 

But it didn’t go so well. The Thai navy cracked down and charged Chad and Nadia with breaking the law. The couple are now on the run.

Despite this setback, Quirk is optimistic about the future of living at sea. How might it work?

Quirk points out that a form of seasteads already exist: cruise ships.

“Most cruise ships fly the flag of say, Panama or Liberia and they’re sort of de facto self-governing….So a captain is a de facto dictator. Why doesn’t he become a tyrant? And the answer is because people can choose another cruise line.”

On land, some governments have done something a bit similar to seasteading, Quirk notes. They’re created “special economic zones.” After seeing the success of Hong Kong, even communist China set up such zones so cities could experiment with fewer rules. Those zones have thrived. There should be more of them.

Of course, lots of people are nervous about getting rid of rules. Stossel tells Quirk that some would say: “Without American rules some will be shooting up heroin or abusing children!”  

“We have that in our country right now,” Quirk replies. “But if I…move 12 miles off shore…I’m going to be so incentivized to set a better example….Because the world’s eyes are going to be on me. I got to convince investors to invest in it. I got to convince people to move there.”

Quirk adds: “Seasteaders don’t have a problem with regulations per se. Humans need rules to interact. We have a problem with the monopoly over the provision and enforcement of regulations….We don’t need politicians. They’re not smart enough to make decisions for us!”

Quirk tells Stossel that he wants people to govern themselves.

“It’s irresponsible not to improve society by setting better examples,” he says.

The views expressed in this video are solely those of John Stossel; his independent production company, Stossel Productions; and the people he interviews. The claims and opinions set forth in the video and accompanying text are not necessarily those of Reason.

 

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Brandon Davis is apparently a neurosurgeon in Florida, and also “owns a modeling and media company called Vybelle Fashion Agency.” He briefly dated Danielle Ellis, “an aspiring model and fashion designer.” (Quotes, unless otherwise noted, are from the court order, which is based on a proposed order submitted by Davis.)

After they broke up, Ellis publicly posted social media messages saying that Davis was “hacking” and “stalking” her, and that she had filed a police report against Davis. Davis denies hacking or stalking her, and states that a records search in Palm Beach County (where Davis lives) reveals no such police report. Davis also alleges that Ellis “arriv[ed] unannounced at [Davis’s] residence …, to be stopped by the building security” and “sen[t] threatening text messages to Petitioner.”

So Davis went to court (in Texas, where Ellis had apparently moved), and sued her for libel. “‘Hell hath no fury like a woman scorned.’ This statement encapsulates Defendant Ellis to a ‘T,'” reads the opening line of the “Nature of the Case” portion of Davis’s petition (filed by Elizabeth C. Brandon (Reed Smith LLP)).

The complaint was filed September 9, and then on September 12 Davis got a temporary restraining order, in which Judge Bridgett Whitmore forbade Ellis from (among other things),

1. “Continuing to publicly post any defamatory statements bout Petitioner.”
2. “Refusing to remove the defamatory statements against Petitioner from any and all of her social media public posts.”
3. “Refusing to remove the personally-identifiable information about Petitioner—which includes Petitioner’s name, work address, home address, phone number, photograph, company affiliation, and various social media hashtags associated with Petitioner—from any and all of her social media public posts.”

As best I can tell from the court record, Ellis was not served with any of the documents until 6:30 pm the day after the order was issued (September 13). She thus had no opportunity to appear in court before her speech was ordered stopped and taken down. (I e-mailed Davis’s lawyers but haven’t heard back from them.)

Now I can’t speak about who’s telling the truth on the facts; but it seems to me that the court erred badly in issuing the order.

After certain statements are found to be libelous at trial, injunctions barring repeating the statements are likely allowed in most states; there’s controversy about that, but that’s the emerging modern view in recent court decisions. (I think the injunctions are constitutional only if they include particular procedural protections, but that’s just my view, and I’ll set it aside here.) Yet, even recognizing that most courts allow some such post-trial anti-libel injunctions, the injunction here is impermissible.

A. The injunction is unconstitutionally overbroad. Injunctions against defamatory statements, when they are allowed, are justified by the libel exception to the First Amendment. But this injunction goes beyond just requiring Ellis to remove libels: It also requires her to remove any “personally-identifiable information” about Davis, including his name. There is no First Amendment exception justifying any restriction that is so broad.

B. The injunction was apparently issued without notice to Ellis. Injunctions against speech, when they are allowed, are supposed to be issued following adversary hearings where both sides can present their arguments. In the Supreme Court’s words in Carroll v. President & Comm’rs of Princess Anne (1968),

There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

C. Pretrial anti-libel injunctions have generally been rejected, even by courts that allow such injunctions after trial. I give lots of examples here, but here’s a sample of the reasoning, from the Kentucky Supreme Court:

[T]he speech alleged to be false and defamatory … has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition.

We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.

And the Texas Supreme Court has expressly said (even when it allowed some post-trial anti-libel injunctions) that, “We have squarely held that a temporary injunction prohibiting allegedly defamatory speech is an unconstitutional prior restraint.”

4. Beyond that, in Texas, anti-libel injunctions can only order the removal of existing posts found to be defamatory; they can’t ban the posting of future defamation. That’s a minority view among recent court decisions, but it is the Texas Supreme Court’s view, see Kinney v. Barnes (Tex. 2014):

Accordingly, we hold that the Texas Constitution does not permit injunctions against future speech following an adjudication of defamation. Trial courts are simply not equipped to comport with the constitutional requirement not to chill protected speech in an attempt to effectively enjoin defamation.

(And recall, see point 3 above, that the prohibition is even clearer when it comes to an injunction preceding a final adjudication of defamation, for instance a temporary restraining order.)

And indeed this is part of the reason why courts aren’t supposed to restrict speech when the speaker hasn’t had a chance to participate in the process (see item 2 above). Judges can make mistakes; indeed, they sometimes might not know their own state supreme court’s precedents on the question. But such mistakes are especially likely when they hear only the plaintiff’s side of the case.

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Edward Snowden has a message to the tech developers who have digitized so much of our lives: If the United States and other world governments are not willing to recognize our right to privacy, then the private sector is going to have to do the work.

The whistleblower’s new autobiography, Permanent Record, details how he discovered and exposed Washington’s mass surveillance of American citizens. Happily, he does this in approachable prose that doesn’t require readers to have served time in an IT department to understand it.

The book recounts Snowden’s fears that the United States is following in the footsteps of China’s surveillance of its citizenry, his discovery that these worries were true when he stumbled across a classified report while working for the National Security Agency (NSA), and his decision to sneak documentation of the NSA’s techniques to journalists Glenn Greenwald and Laura Poitras. I won’t belabor that story—it’s pretty much a matter of public record now, and it’s not the draw of the book. The selling point of Permanent Record is its insight into why Snowden did what he did and how he feels about the state of the world today.

Snowden’s decision to become a whistleblower sprang from his strong belief that the Constitution is supposed to restrain the government’s power over the public. He was angry when he discovered the documents describing just how extensive the NSA’s post-9/11 domestic surveillance program STELLARWIND was. That operation had been exposed in 2004 by whistleblower Thomas Tamm, yet it quietly continued and expanded.

In Permanent Record, Snowden argues that the mass collection of Americans’ data without individualized warrants violates our Fourth Amendment rights. The intelligence system that had been sold as a way to fight terrorism was in fact being turned against us all. “After a decade of mass surveillance,” he writes, “the technology had proved itself to be a potent weapon less against terror and more against liberty itself. By continuing these programs, by continuing these lies, American was protecting little, winning nothing, and losing much—until there would be few distinctions left between those post-9/11 polarities of ‘Us’ and ‘Them.'”

We’d been assured that our private data was being carefully, thoughtfully handled—that serious oversight and meaningful protections were in place. But that’s not what Snowden found. Pretty much anybody could become a target:

The grounds for suspicion were often poorly documented, if they were documented at all, and the connections could be incredibly tenuous—”believed to be potentially associated with” and then the name of some international organization that could be anything from a telecommunications standards body to UNICEF to something you might actually agree is menacing.

Snowden describes the sometimes overly friendly relationship between tech companies and the government, which at times had the former giving the latter access to our info without our knowledge. But he also sees the positive in the pushes by companies like Apple and Google to bring consumers better encryption. “Encryption,” he writes, “is the single best hope for fighting surveillance of any kind. If all our data, including our communications, were enciphered in this fashion, from end to end…then no government—no entity conceivable under our current knowledge of physics, for that matter—would be able to understand them.”

This makes it all the more important to resist officials’ efforts to hobble encryption with “back doors” that allow police to access your private data without your permission. Politicians, police chiefs, and leaders of the FBI insist that criminals are using encryption to “go dark,” making it harder for police to solve crimes and for the feds to track down terror threats. But this is the same way they sold these surveillance powers, and then it turned out they were abusing the system. The ability to secretly bypass encryption would simply allow new avenues of warrantless surveillance of American citizens.

Given the national security state’s lack of respect for the Fourth Amendment—and given how weak-willed politicians have been about standing up to those agencies—Snowden thinks it’s up to independent, private, privacy-minded tech developers to take the lead in protecting our privacy:

In a perfect world, which is to say a world that doesn’t exist, just laws would make these tools obsolete. But in the only world we have, they have never been more necessary. A change in the law is infinitely more difficult to achieve than a change in a technological standard, and as long a legal innovation lags behind technological innovation institutions will seek to abuse that disparity in the furtherance of their interests. It falls to independent, open-source hardware and software developers to close that gap by providing the vital civil liberties protections that the law may be unable, or unwilling, to guarantee.

Meanwhile, Australia is now trying to mandate encryption back doors, with repercussions that go far beyond Australia. And the U.S. government is trying to prevent Snowden from earning money off his own book. Those vital civil liberties protections could use all the help they can get.

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Switzerland’s supreme court has ruled that parents do not have a right to homeschool their children. The ruling came in the case of a woman whose application to homeschool her son was rejected by officials in Basel. The court said the country’s cantons (which are similar to U.S. states) have the authority to regulate or even ban homeschooling. Some cantons require only that parents notify them if they are homeschooling, but others set more stringent requirements.

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