Tag Archives: Obama

A Facebook News Sandwich

Wired UK reports that Facebook has created a “Connectivity Lab” dedicated to bringing the internet to remote areas via a network of “flying drones, satellites, and infrared lasers capable of beaming internet connections to people down here on earth.” As Wired notes, the news comes within days of Facebook’s acquisition of gaming headset manufacturer Oculus, which Facebook plans to use to develop virtual reality enhancements for its social network.

A recurring theme on News Sandwich is the celebration of innovation, particularly in an economy struggling to survive after the lashings it has received from the last few presidents. But I find Facebook’s investments especially heartening because they are explicitly aimed at the long term: “[W]hile discussing the Oculus buy, Zuckerberg painted both projects as platforms that represent not the near future of Facebook, but the distant future.”

Innovative tech industry leaders are even more important today, because we are depending on them to figure out ways to protect our privacy until we can either elect the right politicians and win the right court cases needed to achieve major changes in the law.

Remember when Obama promised to end the NSA’s bulk metadata collection program “as we know it”? Well, as I suspected, so far it’s just a bunch of hot air. If you dig down into this New York Times story, entitled “Obama to Call for End to N.S.A.’s Bulk Data Collection,” you will learn, first, that “the administration has decided to ask the Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle”—i.e., at least another three months of the program as it is. Then, the plan is apparently to do exactly what Obama previously admitted was not a real solution: require the phone companies to retain the metadata. The only difference, apparently, is that the data will be retained for only 18 months, whereas the NSA is currently collecting and retaining data for five years.

Hmmm, 18 months. Just enough time for Obama to finish up his term, leave office, and even help the next democrat get elected.

Conspiracy theories aside, it is wrong for the government to force companies to retain this data even if, as the New York Times reports, “federal regulations already generally require [it].” Moreover, even assuming (as I do) that phone companies have a legitimate business reason to retain some metadata for some period of time, it is wrong for government to be able to obtain that data without probable cause and particularized suspicion.

What was perhaps most disappointing to me about Obama’s announcement of, essentially, nothing, was the news that Edward Snowden hailed Obama’s proposals as a “turning point.” Am I missing something? I just don’t see that requiring phone companies to do the government’s dirty work makes a bit of difference. Is Snowden trying to negotiate a plea bargain with Obama?

With Obama seemingly determined to keep his toys, and Snowden dropping the ball, I turn to the tech industry innovators and leaders to develop ways to protect our privacy in the current legal context. And I am hopeful that Mark Zuckerberg will do his part. In a recent post on Facebook, Zuckerberg wrote:

The US government should be the champion for the internet, not a threat. They need to be much more transparent about what they’re doing, or otherwise people will believe the worst.

I’ve called President Obama to express my frustration over the damage the government is creating for all of our future. Unfortunately, it seems like it will take a very long time for true full reform.

So it’s up to us — all of us — to build the internet we want. Together, we can build a space that is greater and a more important part of the world than anything we have today, but is also safe and secure. I’m committed to seeing this happen, and you can count on Facebook to do our part.

Whatever complaints I have about Facebook—the ads, the default settings or notifications I don’t always like, the confusing changes in news feed and profile layouts—I commend Mark Zuckerberg for continuing to innovate for the long term, and for committing to protect our privacy, despite governments that seem intent on violating it.

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An NSA News Sandwich

According to The Guardian, German Chancellor Angela Merkel compared the NSA’s snooping practices “with those of the Stasi, the ubiquitous and all-powerful secret police of the communist dictatorship in East Germany, where she grew up.” She is said to have done this during “an angry exchange with Barack Obama” on the phone in October. Edward Snowden had apparently revealed that the NSA was listening in on Merkel’s private cell phone conversations. She also is reported to have said that the NSA cannot be trusted with private information, as evidenced by the fact that Snowden was able to escape with so much of it.

My question for Merkel is: what if Snowden hadn’t been able to escape with that data? Would she say that ignorance is bliss? Even if Merkel is a little confused about whether to cheer the Snowden leaks, I am glad to be able to live vicariously through her having “an angry exchange” with our president.

Those who, like me, disapprove of the NSA’s spying activities will be dismayed to learn that a recent White House-sponsored review of the NSA’s activities has resulted in a recommendation that the NSA continue its programs essentially unchanged. For example, the report is said to recommend continuing the bulk data collection of Americans’ telephone metadata, without probable cause or particularized suspicion, with the only changes being (1) the level of suspicion required to conduct a search on the ginormous database, and (2) the nominal collector and storer of the data would be the telephone companies. I agree with Jim Harper of Cato that requiring the phone companies collect and store the data makes no substantial difference and, in fact, may be worse than the existing program. “Is secretly violating Americans’ communications privacy really rewarded by a policy requiring the violation of Americans’ communications privacy?” he asked.

Harper and other privacy advocates were heartened this week by a federal district judge who ruled that the NSA spying programs were likely unconstitutional. The Guardian provides access to the full text of the ruling, which is long and addresses issues of jurisdiction and standing, but I focused on the part that most interested me: the section pertaining to the third-party doctrine. The judge was conservative, as is appropriate for a district court ruling. He did not say we should get rid of the third-party doctrine, much less the “reasonable expectation of privacy” test, as I do in my recent PJ Media piece and forthcoming law review article. But he did say that he doubted whether the 1978 Supreme Court decision, Smith v. Maryland, a staple of third-party doctrine jurisprudence, could sanction the legality of the NSA’s bulk collection of telephone metadata. Cell phone use today isn’t comparable to the use of the telephone in the 1970s, and so the fact that one might not have had a “reasonable expectation of privacy” in phone metadata in the 1970s doesn’t say anything about whether one has such an expectation today.

While I wish the judge had gone further, it’s a great start and it invites judges on appeal to take a closer look at the third-party doctrine.

 

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An Executive Power News Sandwich

Speaking before the Committee on the Judiciary in the House of Representatives earlier this month, liberal law professor Jonathan Turley testified that President Barack Obama “has transformed the executive into ‘what many once called an imperial presidency model of largely unchecked authority.'” Writing for the Washington Times, James Richard Edwards describes three types of abuses about which Turley testified.

First, Obama gave a “Non-Defense Order,” refusing to defend the Defense of Marriage Act in court. Apparently this was the first time in 40 years that a president has signed such an order. Second, Turley testified, not only has President Obama contradicted his prior opposition to presidential “signing statements,” he has also used these statements in an unprecedented way. Typically, writes Edwards, the statements, which are not supposed to be binding anyway, have been used by presidents to “direct agencies how to execute and interpret the law.” Obama has, in addition, “direct[ed] agencies NOT to enforce a law or certain parts of laws.” Finally, testified Turley, Obama has expanded the use of non-enforcement orders in an unprecedented way: “Obama’s main problem,” explained Turley, “is that he does not refuse to enforce laws because he believes them to be unconstitutional. He has invoked a far broader authority to tailor laws based on his individual judgment and discretion.”

It is terrible that Obama has abused his executive authority. However, it is great to see a liberal legal academic speak out about these abuses. Let’s hope that Congress, after taking the time to hear testimony on these abuses, will finally do something about them.

While a liberal academic cautions us about Obama’s abuse of executive power, an allegedly conservative political commentator, David Brooks, writes a New York Times op-ed arguing that the executive branch doesn’t have enough power! Brooks laments that, given the gridlock in Washington, D.C., “[i]t’s possible that years will go by without the passage of a major piece of legislation.” You mean, another piece of legislation like Obamacare, Mr. Brooks? Thanks, but no thanks. Brooks says he’s also concerned that the executive lacks the “flexibility” to deal with “adjustments” that need to be made to legislation. You know, the type of legislation with pages numbering in the thousands, physically impossible for one human being to read before it’s time to vote. The lack of flexibility comes, says Brooks, because of what he calls “interest group capitalism”–lobbyists, as well as “activist groups and ideological enforcers” to which members of Congress are beholden. The way to address the problems of these “rentier groups,” as Brooks calls them, is to bypass them, by giving more power to the executive branch.

We don’t need bigger government. We need more unified authority. Take power away from the rentier groups who dominate the process. Allow people in those authorities to exercise discretion. Find a president who can both rally a majority, and execute a policy process.

But the alternative Brooks offers–Legislative stalemate vs. a stronger executive–is a false one. A third, superior option is limiting our government to its proper function: protecting individual rights–that is, protecting citizens from the initiation of physical force, and from fraud. If protecting rights was all government could do, there would not be “rentier groups” to which Congress was beholden, because Congress wouldn’t have the power to grant favors.

After reading an op-ed like that, from an alleged conservative columnist, I could use a little comic relief. Thankfully Saturday Night Live has been providing a good dose of that lately, with much of the humor being at Barack Obama’s expense. A few weeks ago, after it became clear that we would not be able to keep our plans, despite what Obama told us, SNL ran an ad for “Paxil: Second Term Strength…the antidepressant for presidents feeling low.” And last week they had a skit I particularly enjoyed, a mock panel discussion show called “How’s He Doing,” in which the “impartial” panelists made clear there was pretty much nothing Obama could do that would cause him to lose their support.

I enjoy seeing anyone do a great job mocking Obama, but it’s even more satisfying to see it done by a liberal media outlet like SNL.

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