Monthly Archives: January 2012

SCOTUS: Police Placing GPS Tracking Device on a Vehicle Without Warrant Violates the Fourth Amendment [or Does it?]

How about some good news on the civil liberties front to kick off the week for a change? Robert Barnes writing for The Washington Post reports that SCOTUS ruled 9-0 in United States v. Jones stating that the police placing a GPS tracking device on a person’s vehicle and tracking said vehicle over days, weeks, or months without a warrant violates the Fourth Amendment’s guarantee against unreasonable searches.

The Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the justices left for another day larger questions about how technology has altered a person’s expectation of privacy.

Justice Antonin Scalia wrote that the government needed a valid warrant before attaching a GPS device to the Jeep used by D.C. drug kingpin Antoine Jones, who was convicted in part because police tracked his movements on public roads for 28 days.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” under the Fourth Amendment’s protection against unreasonable searches and seizures, Scalia wrote.

[…]

Alito’s point was that it was the lengthy GPS surveillance of Jones itself that violated the Fourth Amendment and that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

“For such offenses,” he wrote, “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

The only disagreement among the Justices was whether or not the decision went far enough to protect individuals in a 21st century world based on a 18th century law (i.e. the Fourth Amendment).

Hey, even a blind squirrel can find a nut once in awhile and in even rarer cases, 9 Supreme Court Justices.

***Correction/Further Analysis***
If you followed the link to The Washington Post article, you might notice that the parts I quoted don’t match up exactly. This is because the article has since been edited with a more complete explanation of what United States v. Jones really means. It appears that I put entirely too much trust into what was being reported in the media here and elsewhere (and I still haven’t gotten around to reading the opinion for myself).

Doug Mataconis (who is a lawyer; I am not) was the first to point out that the coverage of this ruling isn’t quite as good from a civil liberties perspective as the media would have us believe:

I think all you can really say is that, under circumstances of this case, the Court found that the use of the tracking device without a warrant was impermissible. As the majority opinion notes, however, the Government attempted to raise in their arguments to the Supreme Court the theory that the search was supported by reasonable suspicion and/or probable cause to believe that Jones was the leader of a drug gang. Under such a theory, the use of the tracking device would have theoretically been justified even without a warrant.

You can read a more detailed analysis from Doug here Outside the Beltway.

Doug also pointed me to this article by Orin Kerr at The Volokh Conspiracy post entitled “What Jones Does Not Hold”

It seems that I wasn’t the only one mislead about the true impact of this ruling. Even Radley Balko at The Agitator had to make some corrections to his post regarding this case and made reference to the same post by Kerr as well as an even more discouraging analysis from Tom Goldstein at SCOTUSblog.

An explanation for… Almost everything really…

“Half the harm that is done in this world is due to people who want to feel important. They don’t mean to do harm-but the harm does not interest them. Or they do not see it, or they justify it because they are absorbed in the endless struggle to think well of themselves.”

— T.S. Eliot

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

We don’t go black… We try to turn on lights

We’re not going black today, over SOPA or PIPA.

In case you by some miracle hadn’t noticed it yet, tens of thousands of web sites around the country and around the world, are “going black” or putting up banners explaining that they are not available or there is no content today etc… In protest against the “Stop Online Privacy Act” and the “ProtectIP act”, which are currently (or were recently), being promulgated in congress.

We don’t have a problem with anyone who does. It’s important that people understand what SOPA and PIPA are (or were), and most folks are sadly unaware of the kind of stupid and harmful things that our government does.

Google and Wikipedia are two of the most important and most used sites on the net; and by participating in this protest, they will very certainly make a lot more people aware of this issue.

But “going black” isn’t what we do here.

We talk about political and social issues here; in particular about liberty and freedom. We try to inform people about the important issues, events, and principles of liberty and freedom; and then talk about them in as free and open a way as we can.

I personally think that going black would be entirely against what we are about here; and while it might help to draw more attention to the problem, it wouldn’t help us inform you, or help us begin the conversation about the issue.

… and of course, you can’t go to wikipedia day to find out about it…

So, I personally, would like to do something that is in the spirit of protesting the idiotic and harmful nature of these pieces of industry lobbying masquerading as legislation…

…And share a few things:

That’s the best explanation of why the freedom to share (within fair use of course, copyrights ARE important) is important; and why legislation like PIPA and SOPA are not only stupid and harmful, but entirely antithetical to the American system of ordered liberty.

And then there’s this piece by my friend (and bestselling author, buy his excellent books please) Larry Correia:

“for all of the people out there on the internet having a massive freak out about the government potentially damaging something they love… WELCOME TO THE PARTY.

You think this is something new or unusual? Nope. This is just about a topic that you happen to be familiar with. If you fall into that camp, I want you to take a deep breath, step back, and examine all of the other issues in the past that you didn’t know jack squat about, but your knee jerk reaction was to say “there’s a problem, the governement has to do something!” Well guess what? The crap the federal government usually comes up with to fix these problems is similar to SOPA. In other words, the legislation addresses a perceived problem by instituting a bunch of stupid overregulation and taking away someone’s freedom.

You think people need access to affordable medical care and shouldn’t be denied coverage? Well, you got used and we got the bloated ridiculous mess that is Obamacare. You saw a news report about how big business defrauded people and said congress should do something? Well, everyone in the business world got screwed because of Enron by completely useless new arbitrary crap laws, and a few years later we got into an even bigger financial crisis which the arbitrary crap laws we spent billions conforming to did nothing to prevent. No, because that financial crisis was caused by people saying that there was this huge problem that needed to be fixed, so more people who couldn’t afford to pay mortgages could still buy houses, and the government simply had to do something to fix this problem!

Any crisis… Any problem… You ask the feds to fix it, you get this kind of answer. Almost never do the laws fix the actual problem. Instead the government gets bigger and gains a few more powers and it doesn’t fix the issue. When the problem gets bigger, then the government gets bigger and gains a few more powers that actually make the problem worse. Oh look! Despite all of these laws the problem has gotten even bigger? Whatever should we do? Why, I know! Let’s pass an even bigger law that takes away more individual freedom and gives the government more control!
Repeat, repeat, repeat.

Any topic, any situation, any problem.

They address it, you lose freedom and they gain more control. Some of you are only offended today because this particular law hurts something you enjoy. The rest of the time? Screw it. You can’t be bothered to pay attention. Or worse, people like me who are up in arms over an issue are just cranks or anti-government crackpots.”

I was going to write something roughly similar to this, but Larry beat me to it… and I’d rather share what he wrote, because it’s good, and because I can.

At least for now…

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Romney Would Have Signed the NDAA; Trusts that President Obama “Would not abuse this Power”

In last night’s debate, Gov. Mitt Romney said something quite incredible when asked if he would have signed the National Defense Authorization Act (NDAA):

Yes I would have [signed the NDAA] and I do believe it’s appropriate to have the capacity to detain people who are threats to this country who are members of Al Qaeda. Look you have every right in this country to protest and to express your views on a wide range of issues but you don’t have a right to join a group that is challenged America and has threatened killing Americans, has killed Americans and has declared war against America. That’s treason. And in this country we have a right to take those people and put them in jail.

And I recognize in a setting where there are enemy combatants and some of them on our own soil that could possibly be abused. There are a lot of things that I think this president does wrong – lots of them. But I don’t think he’s going to abuse this power and I know that if I were president I would not abuse this power. And I could also tell you in my view, you have to choose people who have sufficient character not to abuse the power of the presidency and to make sure that we do not violate the Constitutional principles.

But let me tell you, people who join Al Qaeda are not entitled to the rights of due process under our normal legal code. They are entitled instead to be treated as enemy combatants.

There are so many problems with Gov. Romney’s answer but let’s start with the issue of treason. The Constitution actually deals with the issue of treason (one of the few crimes mentioned in the document) in Article III, Section 3:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Where in this section does it say anything about jailing alleged traitors without due process? From my reading of this, the bar for proving treason is quite high but at a very minimum requires a trial (as opposed to the president’s declaration someone is a traitor or “enemy combatant”).

Perhaps the bigger issue is Romney’s throwing out any notion of the rule of law and replacing it with the rule of men. We are supposed to trust the president, even the very president who he says has done “lots of things” wrong. The onus is on us to make sure the “right” person is elected so that this power isn’t ever abused and does not violate Constitutional principles rather than constrain him with the rule of law (i.e. the Constitution).

I’ve got some bad news for you Gov. Romney. I don’t believe you have “sufficient character not to abuse the power of the presidency.” Your very acknowledgement that you would have signed the NDAA proves that you cannot be trusted to defend the Constitution as your oath would require.

Related:
National Defense Authorization Act Passes Complete With Indefinite Detention Provisions
The Late David Nolan’s Indefinite Detention of U.S. Citizens Fears One Step Closer to Being Realized

Quote of the Day: MLK Day 2012 Edition

Martin Luther King Jr.’s “I Have a Dream” speech is unquestionably one of the most infamous famous speeches in American history. In listening to the speech today, I found the following passages that aren’t as often quoted to be some of the most powerful lines in the speech.

In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice.

America has come a long way since King delivered this speech. Racial and ethnic minorities have made great strides thanks to courageous individuals like King who made a stand for liberty and justice (and in King’s case, paid with his life) and we are all better off for it.

Here is the rest of the speech. Listen and be inspired.

Will Romney Have To Answer For Polygamy?

Over at David Friedman’s blog, he discusses the thorny position Mormon Presdential candidates (which at the time of posting included Huntsman) may face when taking a position against same-sex marriage. Many opponents of same-sex marriage use the slippery-slope argument that if two consenting gays can marry each other, why not three or more consenting adults of any gender? Most supporters of same-sex marriage are loath to acknowledge that this slippery slope is merely a logical progression of supporting freedom. [I don’t share their concern, nor does Friedman.] But as Friedman points out, it is a bit more difficult to justify a slippery-slope argument when the founders of your faith supported polygamy:

It occurs to me that this raises a potential problem for two of the current crop of Republican candidates. Neither Huntsman nor Romney supports same-sex marriage. Both are Mormons. Surely at some point some curious voter will ask one or the other for his view of polygamy. Given that they are trying to get votes from people who regard polygamy as so obviously wicked that the mere possibility of legalizing it is a convincing argument against legalizing same-sex marriage, what are they to say?

It is true that the Church of Latter-Day Saints abandoned polygamy a century or so back. But it is also true that it was founded by polygamists, throughout its early history regarded polygamy as an important part of its religion, and abandoned it only under severe outside pressure, including military occupation by the U.S. army. Can a believing Mormon really hold that polygamy is not merely a bad idea at the moment but inherently evil? Can someone unwilling to say he believes that polygamy is evil win the Republican nomination?

I can see his point… But by changing a few words, you can make a completely different point:

It is true that the United States abandoned slavery a century and a half back. But it is also true that it was founded by slaveowners, throughout its early history regarded slavery as an important part of its national economy, and abandoned it only through the bloodiest war in the nation’s history, a war fought between the states for the very continuance of the union. Can someone calling themselves a “Classical Liberal” and claiming to represent the views of the Founding Fathers really hold that slavery is not merely a bad idea at the moment but inherently evil? Can someone unwilling to say he believes that slavery is evil win the Republican nomination?

Logically, I think we’re at the same place here (although, again, I consider slavery to be inherently evil but don’t consider polygamy/polyandry to be inherently evil — as long as only occurs with full consent of all parties).

As someone who would call myself a classical liberal, or libertarian, I don’t think there’s any particular difficulty maintaining that slavery is evil while still revering the work that the Founding Fathers did to create America. Slavery is an unfortunate blight on our history. It is an affront to the values affirmed in the Declaration of Independence. Slavery was a failure of the time, and while we can’t erase it from the record, classical liberals point to the outstanding positive contributions that the Founding Fathers made implementing the ideas of Constitutionally-limited government and the rule of law in solid practice. And the very nature of the system they put into place allowed for some of their mistakes such as slavery to be rectified by the 13th Amendment (sadly, it required a war and the deaths of hundreds of thousands of men in addition).

If we wanted to break it down, there are hundreds of things we could force politicians to answer for if we took the worst of their social associations and forced them to answer for it. We don’t ask Catholic candidates whether the history of the Crusades means they’ll engage in wars of religious oppression. We don’t ask Gingrich, a Southerner, whether he plans to re-institute Jim Crow. And we accept that classical liberals can be anti-slavery without hypocrisy. If anything, the problems that Mitt Romney may face is the fact that he follows a minority religion of relatively recent origin, so the folks who believe in long-established fairy tales are already prejudiced against him with distrust. So he may face the question that Friedman brings up, but such questions — contrary to David Friedman’s implication — are unfair.

Politicians have enough problems that we don’t need to invent “gotchas” like these to ensnare them. It may be valid to ask him whether he supported the efforts of his church to spend as much money as it did on the California Prop 8 ballot measure, as it is at least current, but bringing up long-disavowed sins committed by Mormons three generations ago is completely unnecessary.

A stand-up comedian I heard once said that prejudice is simply a sign of laziness, because if you take the time to get to know someone, they’ll give you hundreds of individual reasons to hate them. The same is true of politicians; they all stink, but each has their own distinctly distasteful odor to find offensive.

The Good And The Popular

That I believe the set of what’s popular and the set of what’s good aren’t always the same thing should come as no surprise to readers here, especially in the wake of my Kardashian post the other day, but I should make it clear that this idea extends quite a bit farther. As such, I need to respond to something that Scott Adams suggested at his blog today. He pointed out that sometimes he tosses out ideas that are unconventional, unworkable, possibly ludicrous, but with the assumption that the market of minds will sift through ideas and those which are useful will propagate:

We humans like to think we control ideas, but it’s probably more accurate to say we do little more than bury the ideas that are broken on delivery. If you suddenly have an idea for a car made entirely of potato chips, you probably keep it to yourself. But if you have a bad idea about how the President should manage the country, you’ll probably have a few drinks at your next social gathering and let it fly. Human are transmitters, not filters. By analogy, the Internet can detect bad data packets, but not bad ideas. We’re like the Internet.

In this context, I see myself as a collector, combiner, and broadcaster of ideas, both good and bad. I spray ideas into the universe and let the ideas fight for their own survival. With the help of their human hosts, the best ideas will evolve and reproduce, and the worst ideas will go to their resting places on the Internet.

I’m explaining all of this because of a comment that user Unlost made about my post yesterday. After reading my ideas for how I would run my presidency, Unlost said, “Priceless, yet this will all go unheeded.” I understand the pessimism, but I see it differently. The ideas I unleashed yesterday are already waging a guerrilla war with the status quo. The ideas are hopping from host to host, and if any are worthy, they will evolve and survive. Change doesn’t happen quickly, but I guarantee that any good ideas generated by this blog – if there are any – will find their way. The weak ideas will fade to backup storage, as they should.

The idea that only the good ideas propagate wildly is a long shot. For a good idea to propagate, a critical condition must be met: humans must have enough education/experience in the subject matter to know which ideas are good. This is an unmet condition in many, MANY aspects of humanity. What’s even worse, to steal a phrase, is not that humans don’t know enough to determine which ideas to propagate, it’s that what they know just ain’t so.

Much of economics revolves around teaching that what sounds good isn’t necessarily good. A higher minimum wage sounds like a great policy — until you realize that the tradeoff is higher unemployment [especially amongst low-skilled workers who most need the job], and often higher prices and potentially inflation. Or, that rent control doesn’t lead to more affordable housing, but rather a glut of luxury properties (not covered by rent control) that those who were supposed to benefit from rent control can’t afford.

The average person will look at something that seems to offend their sensibilities (such as, for example, the Netflix/Qwikster fiasco), everyone assumes that when a company does something wrong, it’s immediately a matter of idiocy. But as Megan McArdle points out, perhaps they made a bad decision for the right reasons. What looks right or wrong from the outside isn’t always the right or wrong decision when you actually know the particulars.

As a general rule, if you look at something that you have only passing familiarity with and ask yourself “well, why the hell did they do it that way? That’s just stupid!” They say this without realization that there may have been a great deal of history behind how something was done, and that perhaps without that history or experience, you may not understand whether it was the right or wrong thing to do. As G.K. Chesterton once wrote:

In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”

What Scott Adams leaves out is the cost of an idea. In many cases, believing something or not believing something is a costless act. Whether or not I believe in raising or abolishing the minimum wage has an absolutely infinitesimal probability of affecting what happens to the minimum wage. Thus, having an opinion, or choosing not to have an opinion [i.e. rational ignorance] really affects very little. And if it affects very little, investing time into making an informed decision — whether propagating an idea or not — is wasting that time. Contrast this, for example, to having an idea about NAND management strategies for dealing with the problem of read disturb. Given that this is integral to my employment, it behooves me to understand the concepts deeply, make informed decisions about cost-benefit analysis of competing approaches, and the validity of such an idea will be tested by sales and field reliability data of a product.

Politics and economics: the history of these disciplines are full of the damage cause by bad ideas. Some of the key aspects of both fields is that in these fields, the immediate cost of holding bad ideas is essentially nil, on the personal level, and thus such ideas are incredibly widespread. I don’t believe anyone can defend the proposition that bad ideas are on the decline.

Vermin Supreme: “Friendly Fascist” and “A Tyrant You Can Trust”

Meet Democrat presidential candidate Vermin Supreme. The man wears a boot on his head, advocates a mandatory dental hygiene program, ponies for every American, and harnessing the energy of zombies to wean America off of foreign oil. Best of all, in his closing statement (following his singing!), Vermin tries to turn his political rival Randall Terry gay because Jesus told him to.

Really, what’s not to like?

Hat Tip: Free Talk Live

Dilbert For President

I doubt he’s filed any sort of FEC paperwork, or has actually put any effort into his candidacy with the exceptions of blog postings, but Scott Adams is better than Obama or Romney:

I will assume for now that the pundits are correct, and Obama will face Romney in the coming election. Both of those guys are smarter than I am. They’re also more experienced. They’re taller, better looking, and they have excellent hair. They also have much, much better character. So why would you vote for me? Let’s run through the reasons.

Definition of Insanity: They say the definition of insanity is doing the same thing over and over and expecting a different result. Voting for either Obama or Romney will give you the same government you have now, more or less. I might be a worse president than either of them, or perhaps far better. The only thing you know for sure is that I’d be different. So if you think the path we’re on is leading to certain economic doom, your smartest strategy is to try something – anything – different. The major parties will make sure your only choices are more of the same. Even another independent candidate will be some version of the same thing.

There’s a lot more there, but it’s actually a pretty good read. Of course, I’d prefer either Gary Johnson or Ron Paul [or Doug Stanhope] over Scott Adams, as I think they’ve actually got the political ability to make things happen in a way Adams doesn’t, but a Scott Adams presidency would undoubtedly be a whole lot more fun.

Is he a doctrinaire libertarian? No, not at all. His “platform” appears to suggest that he’s fiscally conservative and socially liberal, but I suspect it’s more borne of pragmatism than ideology. But that’s still a hell of a lot better than what we’re likely to elect.

Rick Santorum is Not as Pro-Family as He Would Have Us Believe

If someone were to pose the question: “Among the candidates running for president, who would you say describes himself as the most ‘pro-family’?”

I suspect that most people would say Rick Santorum and for good reason. To Santorum, the decline of the traditional, nuclear family is the root cause for every problem facing America right now. Even (perhaps especially) individual rights take a back seat to his family values.

While I obviously disagree with this view, I don’t think there is any question that children have a better chance of becoming productive, successful adults when they grow up in a healthy and loving family environment than those who do not. Whether such an environment requires both a father and mother is subject to debate (and maybe a topic for another time).

With the premise that Rick Santorum is the great defender of the family in mind, a member of Students for Sensible Drug Policy (SSDP) asked the former senator a very good question as he was wading through the crowd shaking hands:

“As a champion of family values and keeping America strong, would you continue to destroy families by sending nonviolent drug offenders to prison?”

To which Santorum responds:

“Uh…wow…the federal government doesn’t do that.”

Jacob Sullum’s response is right on:

“That will come as a surprise to the nearly 100,000 drug offenders in federal prison, who account for almost half of all inmates. (Another 400,000 or so are in state prisons and local jails.) Does Santorum think only violent drug offenders go to federal prison? There is no such requirement.”

Perhaps Santorum should take a moment to visit someone from Families Against Mandatory Minimums (FAMM) and find out if tougher federal drug laws are destroying families.

This is a perfect opening for the Ron Paul campaign to point this out to his rival who is obviously clueless on this issue. Between Rick Santorum’s continued support for the war on (some) drugs and his eagerness to start up a war* with Iran we cannot afford, I think it’s time to question his pro-family bona fides.

Related: Reforming America’s Prison System: The Time Has Come

» Read more

A New Approach To “Government Research”

Over at Cato, Jim Harper responds to proponents of gov’t research that point to the products of that research as justification — they never really consider that such products would still occur via private-sector investment. He takes a bit of a swipe at IP policy in the middle, and in his discussion of the history of AT&T I got an idea:

To take the Internet as proof that the government is a necessary producer of research and innovation, you have to reject the scientific method. Unfortunately, there are rarely controls in public policy. We can’t find out what would have happened if government policy had taken a different course, so we don’t know anything more about who should fund research from the fact that government-funded research has produced good things in the past.

But what would have happened if U.S. public policy had taken a different course? I’ve thought about the impossible-to-answer question of where we would have been without DARPA and other government influences on telecom. What most people don’t consider, I believe, is the restraining influence the government-granted AT&T monopoly had on telecommunications for most of the 20th century. AT&T developed a “Teletypewriter Exchange” system in 1931, for example, but had no need to develop it, there being little or no competitive pressure to do so. (Its patent on attaching devices to phone wires undoubtedly helped as well, preventing anyone using AT&T’s wires for modem service.)

Had there been competition, I suspect that someone would have come up with the idea of packet-switched networks—that’s what the Internet is—before Leonard Kleinrock did in 1962. Kleinrock was a student at MIT—he wasn’t at DARPA, which didn’t get into packet-switching until about 1966. (Then again, MIT was almost certainly awash in government money—specifically military money—so there you go. Maybe we owe all the good things we’ve got to war, but I doubt it.)

So back when AT&T was a monopoly, they developed technology that preceded the internet for delivering data over phone lines, as well as owning (and enforcing) a patent on attaching devices to phone wires, which undoubtedly allowed them to prevent anyone else from capitalizing on data-over-phone-line ideas.

Some would say that this is evidence that government should have been financing this sort of invention so that it would be in the public domain (as TCP/IP eventually was). But there’s another angle to look at here:

Why doesn’t the government buy patents that are valuable but underutilized, and release them to the public domain?

Think of it this way: if the US Patent Office had purchased AT&T’s patents back in the 1930’s and released them into the public domain, they could have been capitalized by a broad swath of companies and perhaps kickstarted development of the internet far before DARPA ever got a hand in it (of course mainstream personal commercial user acceptance probably would have relied on availability a low-cost PC’s just as we saw beginning in the late 90’s). AT&T’s monopoly over phone service gave them no profit incentive to utilize their own invention, but getting it into the public domain could have created a competitive market where none existed before.

I see a couple of potential advantages to this idea over that of government research:

  1. Less of a politicized “government picking winners and losers” model for government research. Instead of independent researchers seeking government grant money for things that have not been invented (and for which commercial development is outside their reach as pure scientists), they might need to seek private funding from investors who expect to reap benefits from selling those patents to the USG.
  2. Give an extra incentive for US companies to continue R&D investment in more “speculative” technologies. For technologies which may be valuable but for which the commercial viability is a more long-term play, or for technologies which might be valuable but prove not to be relevant to the business model of the company in question, they can still earn some return on that sunk R&D investment.
  3. Development of an individual technology-creation boom. Many individuals with good ideas who *could* patent their idea but have no desire or capability to create a company to monetize their idea forego the patent process because there is no return on their time. All of these ideas are lost to the world, at least for a time.
  4. Perhaps most importantly, this is the government paying for results rather than promises. As I suggested in this December 2006 post, I believe that incentivizing the private sector to invent might be a more efficient model in general than in purchasing research on the front end.

Now, there are undoubtedly issues with this proposal.

First and foremost, the fear would be that companies would merely use this as a vehicle to offload shitty patents onto the government — just another form of corporate welfare. And I do suspect they’d try. My answer to that is twofold. One, of all the departments of government, I think the Patent & Trademark Office is widely regarded as one of the less politicized. If procedures are put into place to present them with these patents “blindly”, i.e. so that they cannot know the identity of the inventor, I would suspect that we can at least get their fair assessment of an inventions value in an objective manner. Second, is that one man’s trash is another man’s treasure. For a company that is not capitalizing on a patent, they understandably think it’s worthless — that doesn’t mean that it’s so. There might be some legitimate diamonds in the rough here.

Second, the fear would be that this would merely be government picking winners and losers on a different stage. I.e. if businesses can’t reap value from their patents, and if government boards can’t reliably pick which research programs are of most benefit, how can they do so with patents? This is a pretty typical government problem. Again, I think putting this in the hands of the PTO might help, but efficiency and waste is always a concern.

Third, the fear is that companies simply won’t sell. Patents — even useless ones — are important legal tools. When Novell sold off a patent portfolio in late 2010, the value worked out to be roughly $510K per patent. When Google announced an intended deal to acquire Motorola Mobility last year, the value of the purchase conveniently was set at $12.5B — equal to Motorola’s 24,500 patents multiplied by $510K. When Nortel went bankrupt and auctioned off their patent portfolio last summer, the total value of their 6,000 patents averaged $750K apiece. There may be some positive value in owning some of those patents, but there’s incredible potential negative value in NOT owning enough patents to countersue your competitors if they decided to engage in an IP war. For big companies, a robust patent portfolio is the international diplomacy equivalent of a nation having nuclear capability — those without it won’t mess with you, and you make sure you play nicely with others who have it to avoid MAD. The key to this is not that there might be unused patents of inestimable value to the public that the companies aren’t even using, but rather that they may not be willing to sell *any* part of their IP portfolio. Unilateral disarmament has never been a popular strategy.

All that said, one of the questions we might be left with is simple: is it a better situation than we have now? Would the advantages gained be enough to justify a wholesale switch from our current strategy of paying for research, or perhaps even of diverting a portion of that budget to a program like this instead? I think it would — opening up the option to reward inventors (whether corporate or individual) for creating IP and then opening it up to the public domain seems like a great strategy for a continual boost to near-term growth. Pure scientific research has its place as a public good. Yet I think a case can be made that less “pure” inventions, being opened to the public domain, have a potential place at the table too, if not instead of, pure science.

Post Iowa Caucus Links/Open Thread

Newt Gingrich calls Mitt Romney “a liar” but says he would support him over Barack Obama if he wins the nomination.

Talk radio host and raving lunatic extraordinaire Mark Levin threatens to campaign against Rand Paul if his father chooses to make a third party run. What a petulant asshole.

Sarah Palin warns: “G.O.P. had better not marginalize Ron Paul or his supporters.”

Over at Reason, Matt Welch gives 7 reasons why Ron Paul supporters should feel optimistic about his third-place finish in Iowa

CNN news feed “drops” as Afghanistan war vet urges support for Ron Paul; some Paul supporters claim shenanigans. To CNN’s credit, they do later carry a feed where Paul has the same soldier speak from the podium.

Rick Santorum came in a close second to Mitt Romney but James Hohmann at Politico says there will be a reality check coming concerning his viability. I certainly hope he is right.

Michele Bachmann drops out of the race after a very disappointing (but expected by most) finish. Buh-bye.

Rick Perry decides to continue on to South Carolina. He shouldn’t be a problem for too much longer.

There are a whole lot of other items in the news. Please share your links or comment about whatever.

Rick Santorum, The Anti-Libertarian

Until Rick Santorum’s recent surge in the polls, I didn’t consider him much more than a nuisance. Since the beginning of the campaign, I thought he had the most anti-libertarian agenda in the 2012 race but I didn’t think he was as realistic of a threat as say Rick Perry or Newt Gingrich. The best way to approach Santorum was to ignore him and not give him the attention he desperately craved.

But since Santorum is polling in the top three in Iowa, I think it’s time use his own words to illustrate why he is the most anti-liberty candidate in the race. He actually makes Barack Obama look like a civil libertarian (which is quite an accomplishment).

First, in this interview, Santorum says (among other things) that the pursuit of happiness somehow harms America.

Then, David Boaz writing for Cato@Liberty shares this quote from Santorum taken from a 2006 interview on NPR:

One of the criticisms I make is to what I refer to as more of a libertarianish right. You know, the left has gone so far left and the right in some respects has gone so far right that they touch each other. They come around in the circle. This whole idea of personal autonomy, well I don’t think most conservatives hold that point of view. Some do. They have this idea that people should be left alone, be able to do whatever they want to do, government should keep our taxes down and keep our regulations low, that we shouldn’t get involved in the bedroom, we shouldn’t get involved in cultural issues. You know, people should do whatever they want. Well, that is not how traditional conservatives view the world and I think most conservatives understand that individuals can’t go it alone. That there is no such society that I am aware of, where we’ve had radical individualism and that it succeeds as a culture.

Silly me. I thought the American Revolution and this grand experiment in republican constitutional governance was precisely about “radical individualism” and liberty. To the extent our society hasn’t succeeded is due in large part to moralistic busy bodies just like Rick Santorum.

As if meddling in the affairs of Americans were not enough, Santorum also wants to continue to meddle in the Middle East and elsewhere. Santorum told “Meet the Press” that he would bomb Iran via airstrikes if Iran failed to allow inspectors verify that the regime isn’t developing a nuclear weapon (essentially, Iran is guilty of developing a bomb until proven innocent). “Iran will not get a nuclear weapon under my watch” Santorum proclaimed.

It seems that Rick Santorum inhabits another planet from those of us who believe in liberty, small government, and a humble foreign policy. This might explain why in the debates Santorum has the look of bewilderment on his face when Ron Paul speaks (in a foreign language apparently) about common sense principles of life, liberty, and property.

If the idea of a President Santorum doesn’t frighten you, it should.