Category Archives: regulation

Privacy and DoJ

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I don’t often disagree with Attorney General Bill Barr, but on this I most certainly do.

Attorney General William Barr demanded Monday that Apple help the US government unlock two iPhones in its terror investigation of the Saudi air cadet who last month killed three sailors at a Navy training base in Pensacola, Florida. “This situation perfectly illustrates why it is critical that the public be able to get access to digital evidence,” Mr Barr said.

“The public,” not “the government” or “the police investigators.”  Now, it’s clear that Barr could have been speaking metaphorically in this, so I’ll not pursue this aspect beyond pointing out the possibility of misunderstanding or of misplaced priority.

The larger matters, though, are two.

Apple has no need to help DoJ on this, neither empirically nor legally.

Empirically because DoJ is crying wolf. The agency bleated about the need for Apple’s…cooperation…after San Bernardino, and then a 3rd party cracked that phone for DoJ. Now DoJ is at it again. In the last couple of days, though, WSJ published an article listing a number of phone cracking software packages already on the market. DoJ no longer has credibility in this.

It simply wants Apple to do the DoJ work because DoJ doesn’t want to drop a dime on some software and, more, because DoJ wants to put its boot on Apple’s neck to demonstrate just who it is who’s in charge.

Legally because there is no Constitutional requirement for any private enterprise to destroy its software—which opening the software for Government, at Government’s veriest demand, would do. More, we—neither us individual citizens nor our private enterprises—are here to give Government something to do.

Government is here to work for us. That Apple’s intransigence—our intransigence generally—on this sort of thing is a matter of government convenience not a matter of compelling government investigative need.

Maybe Build Their Own Connections

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Idaho wants to connect several of its western communities to a renewable energy hub in eastern Oregon, and the green citizens of eastern Oregon agrees with the sentiment.  Just don’t use actual power lines to do the connection.  Brian Kelly, Restoration Director for the Greater Hells Canyon Council in eastern Oregon:

We need to develop more renewable energy, of course, but it shouldn’t come at the cost of damage to our last remaining wild places….

Yep.  Dan Shreve, Head of Global Wind Energy Research at Wood Mackenzie:

Regardless of where you go, there’s always some issues—whether it’s bats, whether it’s birds, whether it’s wealthy landowners who don’t want their view interrupted. As a consequence, you see these initiatives drag on forever.

These worthies put greater value—economic and otherwise—on sights and terrain than they do on actual power to support the folks living there to enjoy those sights and that terrain, as well as telling others elsewhere that local sights and terrain are more important than those others’ access to power.

Perhaps utilities should walk away from such areas, build their hubs and their transmission lines elsewhere, and let these folks who think energy is not all that important develop their own clean power sources and provide their own accesses to them. Surely, they’ll be able to do so much more cheaply and efficiently while preserving their views than can utilities.

Harms in Public Spaces

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The Brits are working out a new way to intervene in private lives and in private businesses, this time in an attempt to control “harms” done via (not by, mind you) “online platforms”—social media.

Under the [British] government’s proposal, a new regulator would have the power to require companies to protect users from a number of identified online harms—such as pornography, extremist content, and cyber bullying.

And

[T]he pair talked through the different terms that had been used to describe social media in a legal context, looking for the right analogy. They tried “platform,” “pipe” and “intermediary.” Nothing seemed to fit. Then “we thought of a ‘public space,'” says Ms Woods. “People do different things online. It was just like ‘how do we regulate spaces?'”

“Identified” online harms? We can’t even define the harms—such as pornography, extremist content, and cyber bullying.  Even Supreme Court Justice Potter Stewart ultimately walked back his foolish I know it when I see it nonsense, recognizing that such a nebulous “definition” had no place in law.

We have not—we cannot—define any of these harms, much less what constitutes a “public space;” there is no basis for Government regulating these things.

Nor have we succeeded in recognizing who actually is responsible for these harms, whether public or private.  See the disconnect, at a high level, between the Left’s Big Government is responsible on the one hand and the Right’s focus on individual responsibility on the other.

The British government may want to create a whole new, intrusive bureaucratic agency for controlling one more aspect of British citizens’ lives. When we wrote our Constitution and ratified it those two and a quarter centuries ago, we explicitly walked away from the British system of governance for a number of reasons; central among them being the illegitimacy of Government intrusions into private lives.

This is one more example.

Data Transfer and Privacy

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The European Union’s Court of Justice had recommended to it by an adviser to the court in a particular case involving Facebook that

Companies, including US tech giants, should be blocked from transferring European users’ data in some cases if they can’t guarantee it will be handled in compliance with European Union privacy laws….

That would seem to include a large number of international companies besides ours. Yet several EU member nations are moving apace to bring Huawei into their communications networks….

Hmm….

An Appeal

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Bayer is appealing a District court judgment against it and its Roundup product which has glyphosate as an important ingredient. The judgment is for $25 million, and Bayer thinks it’s a wrong judgment.

The German company’s main argument is that US federal agencies have determined its product is safe and not a carcinogen.

Bayer noted that the

verdict defies both expert regulatory judgment and sound science.

And

Because the EPA has consistently approved the sale of glyphosate without a cancer warning and has stated that including such a warning on the label would render the product misbranded, any state-imposed cancer warning is expressly preempted

Wow. Truth as defense.  What a concept.