Don't Hurt People and Don't Take Their Stuff: A Libertarian Manifesto (22 page)

12. D
EFEND
Y
OUR
R
IGHT
TO
K
NOW

The Internet has changed everything. Creating a digital community that spans the globe has led to unprecedented disintermediation as individuals gained the freedom to interconnect on their own, no filters, no hierarchy, no middleman required. EBay, the online auction house, has made every individual a potential retailer, while allowing customers an unprecedented scope of access to retailers across the world. Access to information and the ability to communicate across all the corners of the world have empowered individuals in ways that were inconceivable even a few years ago.

Why do you think it is that tyrants of all stripes now go after control of the Internet and readily available social networking platforms first? They want more control, and political disintermediation online shifts control and freedom—and a real voice—to the end user. “Most of the world’s dictators share a common fear,” argues Joel Brinkley, a Pulitzer Prize–winning journalist now at Stanford University. It’s social media. “Facebook, Twitter, blogs and the rest have spread around the world and are now being used as cudgels against authoritarian leaders in places like Vietnam, Russia, Belarus and Bahrain. In those states and so many others, the leaders are attacking tweeters and bloggers as if they were armed revolutionaries.” In Iran, “bloggers are given long prison terms or sentenced to death, charged with ‘enmity against God’ and subverting national security.”
²⁵

The implications are profound, particularly in terms of participatory politics. In the fight for freedom, the Internet is everything, and we should fight to protect it from government encroachment and censorship.

As more and more of our lives are carried out online, the data cloud is growing, and so is the potential for abuse. The government can now readily access private information, as when the IRS illegally seized 60 million personal medical records.
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At the same time, the rules governing federal access to online information are murky as to whether a search warrant is required. As Declan McCullagh noted, “An IRS 2009 Search Warrant Handbook obtained by the American Civil Liberties Union argues that ‘emails and other transmissions generally lose their reasonable expectation of privacy and thus their Fourth Amendment protection once they have been sent from an individual’s computer.’ ”
²⁷

It is important, then, to ensure that the liberties enshrined in the Constitution extend to every sphere of activity—the Constitution does not stop where technology begins.

Many of the current laws governing online privacy were written for a world that no longer exists. For example, the Electronic Communications Privacy Act (ECPA)—which sets the rules for law enforcement agencies accessing private data online—was written before anyone heard of Facebook or Dropbox. Online storage was expensive, and no one envisioned a world of cloud computing; data was only protected from warrantless searches for 180 days, because no one could possibly store information any longer than that. Consequently, under ECPA, any data older than 180 days are fair game for law enforcement. No warrants are necessary.

As is often the case, technology evolved in ways that the lawmakers in Washington could not envision. Today, virtually all Internet users engage in some form of cloud computing, whether it’s Facebook, an online music collection, or simply archiving emails. As a result, much of our lives is accessible to law enforcement agencies without ever needing a warrant. The laws must change with the times. Senators Mike Lee (R-UT) and Pat Leahy (D-VT) have offered an amendment to ECPA to make it clear that government must obtain a warrant prior to accessing private online information.

In addition to arbitrary incursions into individual privacy, a growing government presence on the Internet poses significant threats to free speech and online activism.

Both government policy and businesses seeking refuge from the intense competition of the Internet may introduce barriers that ultimately limit consumer choice or access to information.

In 2011, this drama played out in Washington, as Big Hollywood and other content providers sought tough new laws to stop Internet infringements on their material. In the Senate, the debate focused on PIPA—the Protect Intellectual Property Act. In the House the debate targeted SOPA—the Stop Online Piracy Act.

Intellectual property has long been the topic of heated debates because the definitions are not clear and the exceptions ambiguous. The founders understood the need to balance innovation with intellectual property. Article I, Section 8 of the Constitution—often called the copyright clause—states that Congress has the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

A period of exclusive ownership or copyright provides an incentive to produce works that might otherwise not be undertaken. At the same time, this unique clause suggests that the founders viewed intellectual property differently from other forms of property, so much so that it is addressed separately.

Since first establishing a copyright of fourteen years in 1790, the span of protection has increased dramatically, thanks to pressure from interested parties. Today, it stands at the life of the author plus another seventy years, or in the case of corporate authorship, 125 years from the creation or ninety-five years from the year of publication, whichever comes first.
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These politically defined “rights” seem like a subversion of the founders’ intent.

How much more inspiration to innovate does a 125-year copyright provide?

This largesse to powerful business interests has always been balanced by the doctrine of fair use, which, under certain circumstances, allows limited use of copyrighted materials without first seeking permission from the owner of the copyright.

The Internet poses a new threat to intellectual property owners, allowing individuals to copy and transmit content, often at almost zero cost. SOPA and PIPA were pushed by Hollywood interests in response, to clamp down on piracy. But these ill-conceived measures effectively set up the infrastructure for the federal government to censor the Internet, granting unprecedented authority to shut down millions of websites that failed to meet the new standards. In effect, these bills would have made the government the official online enforcer, mandating search engines and third parties to remove links to websites deemed unacceptable.

While these efforts to censor the Internet were defeated by a broad coalition of grassroots and civil liberties organizations, new threats loom. A new, more sweeping proposal is CISPA, which stands for the Cyber Intelligence Sharing and Protection Act. This legislation would provide broad new powers to the government. It would allow “companies to identify and obtain ‘threat information’ by looking at your private information,” according to the Electronic Frontier Foundation. “It is written so broadly that it allows companies to hand over large swaths of personal information to the government with no judicial oversight—effectively creating a ‘cybersecurity’ loophole in all existing privacy laws.”
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Restrictions on the flow of information have important political implications. Regulation and other formal constraints on the Internet have the potential to shape the information available to individuals and therefore the political debate. We can’t go back to the world of three nightly news channels and have the same level of political discourse that we do today. The Internet has to remain free from government control and unnecessary regulation, free to provide activists a platform to educate and mobilize, and free to anyone wishing to exercise their First Amendment rights to free speech.

ALL THESE ISSUES COULD
be acted upon by Congress this year, if the political will were there.

If the will were there.
How many times have you heard that before, all the while watching our “representation” in Washington drive headlong over the cliff? The lemmings seem utterly unaware, or at least wholly unconcerned, that a dire end quickly approaches. And that’s the point. They won’t do the right thing when left alone; they will run our country right off the edge, pointing the finger of blame at one another even as they plummet to their own undoing.

The fact is that government control has become a narcotic for D.C. power mongers. One hit, and most get hooked, scrambling for more, lashing out at those who would deny them another. Legislators and executive branch kleptocrats lack the will to act because they simply can’t make it without their next fix. Even when the desire for change is there, the compulsion to spend is simply too overpowering to resist. Lawmakers can’t break the habit on their own. They mindlessly consume new tax dollars, and fake printed dollars and even dollars borrowed from China, like zombies on the hunt for fresh brains.

They need help. It’s time for you to intervene.

This twelve-step program is designed to wean the government off the empty promises of new entitlements, excessive spending, and unchecked executive power. It seems utterly crazy to keep doing what we did before, to follow the old rules of bipartisan collusion, if doing so does not solve problems. We need to scrap the tax code, and balance the budget and restore respect for the simple rules embodied in our Constitution that treat everyone just like everyone else.

We can do all these things if and when America beats Washington. That’s the key. The perfectly constructed constitutional amendment or the best patient-centered health-care reform goes exactly nowhere if Washington is left to its own devices. You will have to act.

CHAPTER 9

N
OT A
O
NE
-N
IGHT
S
TAND

The most dangerous man to any government is the man who is able to think things out for himself, without regard to the prevailing superstitions and taboos. Almost inevitably he comes to the conclusion that the government he lives under is dishonest, insane and intolerable, and so, if he is romantic, he tries to change it. And even if he is not romantic personally he is very apt to spread discontent among those who are.

—H. L. MENCKEN
¹

DO YOU EVER FEEL
like politicians want just one thing from you? That maybe, just maybe, they don’t really care about you, your dignity, or your freedoms at all?

To be sure, the political courtship can be awesome. There’s always lots of sweet talk. Politicos know all the right buttons to push, always telling you exactly what you want to hear. They call you. They write to you. They send you notes in the mail. They “friend” you on Facebook. Sometimes you get a personal text message on your cell phone, or even an invite to hang out with George Clooney. How cool is that?

Democrats seem more comfortable courting you online, or at your front door. Republicans typically prefer expensive grand gestures, like a national, thousand-point-saturation television ad buy. The GOP is old-school that way.

They promise you a transparent, honest government. Would you like to see a simple flat tax that doesn’t have all of the carve-outs and special deals for others in it? How about a balanced budget that stops stealing from future generations of your family? Do you want more choice and control for your own retirement, or the freedom to determine your own child’s education, or even to defend your right, as a patient, to choose your own doctor?

They even pledge to keep their promises, and to stay faithful the day after.

It might be worth taking a chance, you think.

You know they only want one thing, one time, on the first Tuesday in November. You
know
they are not looking for a long-term relationship, that their fidelity to principle will suddenly disappear when they get back to Washington, D.C. But the charm offensive wears down your defenses. The letters and the calls and the posts and tweets and the thirty-second spots and the big promises are just too tempting. You want to believe it, because the future of your country, and your children’s future, is at stake. Sooner or later, you cast aside your inhibitions, and you do it.

You vote for the same guys that let you down last time.

And it
never
works out.

D
UMPED,
A
GAIN

I’m not judging here. I’ve done it, too. I stand in line to vote (in the District of Columbia, no less). I have written checks to candidates for public office. I have hoped for the best. I have even walked precincts, door to door, for someone else’s preferred candidate, who’s running on someone else’s bad ideas, all because they promised me they would do the right thing.

I always wake up, the day after the election, feeling used. Used again. It never works out. They never call the next day. They don’t write. They don’t text. And they never, ever keep their long-term commitments.

That’s the problem with political parties. The relationship always turns out to be a one-night stand that leaves you feeling used, ignored, and then dumped for someone or something that’s far more attractive, someone or something waiting back in Washington, D.C.

Consider the sorry state of President Obama’s signature health-care legislation circa January 2010. It was jammed through Congress using parliamentary trickery because the people of the very blue Massachusetts decided to send a clear political message in the special election of Republican Scott Brown. “We don’t want this,” Bay Staters said at the ballot box. “We don’t trust Washington to oversee a massively complex redesign of our health-care system.” No matter the will of the people. Nancy Pelosi used “deem and pass” procedures so that the Senate would not have to provide the sixty votes that Senate majority leader Harry Reid no longer had.

Senator Arlen Specter of Pennsylvania, who had switched from Republican to Democrat in hopes of clinging to political power, had provided the deciding vote for the Senate bill. Specter, of course, would not have been a senator except for the extraordinary efforts of President George W. Bush, Karl Rove, and the GOP establishment to protect him in his 2004 primary challenge from Pat Toomey.