A few weeks ago, a new proposal for a federal law first came to my attention.  The Combating Online Infringement and Counterfeits Act (COICA) would give the federal government authority to police various forms of copyright infringement on the Internet.  The Act itself is not long to read, and it essentially boils down to giving the Attorney General the authority to take down domain names with a court order if whatever is located at such domain names is shown to infringe on copyright.  Though the law is brief, its implications are staggering.  What’s more, other recent events raise serious questions as to whether such a law is even necessary at all.

A law like COICA represents a radical departure from the history of copyright enforcement in the US.  The Constitution vests in the federal government the authority to create laws to promote useful creativity by protecting things such as patents and copyrights.  Congress, in turn, put together a regulatory scheme in which copyright issues can be brought to the courts, but where the government is otherwise uninvolved.  In copyright suits throughout US history, the obligation has fallen to rights holders to identify instances of patent or copyright infringement and bring an appropriate action against the infringing party.  Although laws like the Digital Millennium Copyright Act (DMCA) have fueled the debate about how much protection rights holders deserve, the basic structure of private action in a federal forum has never been greatly tampered with.

Until now.

Politicians in recent years have been under increasing pressure from Big Content (RIAA, MPAA, etc.) to change the way copyright is handled in America.  Pretty much ever since Napster, the content industry has been learning a great deal about fighting copyright infringement in the digital age.  Perhaps the most important lesson they’ve learned is that fighting copyright infringement is expensive and time consuming, with rewards for success questionable at best.  As usual when it comes to battles in a courtroom, the only people who win are the lawyers.

Big Content have, naturally, grown a bit tired of paying their attorneys to go out and sue people for huge sums of money, most of whom can’t pay even if they lose.  In their view, it makes a whole lot more sense to let the government take over.  Big Content keeps its profits while taxpayers cover their legal bills.  A bill like COICA is an appetizer to the government sponsored, taxpayer funded feast that Big Content hopes to enjoy.

Recent events, however, point out that COICA may not only be bad policy, it also may be entirely redundant.  The ability to seize and destroy domain names apparently already exists in the arsenal of weapons employed by — of all agencies — Immigration and Customs Enforcement.  Why ICE should be more concerned about protecting our recording labels than they are about protecting our borders is a mystery to me, but there it is just the same.  Best of all, it appears that they can close down domains without much legal process other than obtaining a court order — notice to the domain owner, an opportunity for the owner to challenge the takedown in court, a trial over reasonable questions of fact and law, and other legal protections usually associated with at least two amendments in the Constitution are apparently not required.

If Homeland Security can do all of this on its own authority, what does Congress need to pass laws for?  If the government can take private property (and domain names are property) without due process of law, what do we have a Constitution for?

These days, it seems like not much.

Congress is about to hand Americans another case of government overreach.  It appears that the House of Representatives has just approved the cutely named CALM Act, which now makes its way to President Obama for signature.  The bill, in essence, requires the FCC to enact regulations to control the volume of commercials on television to ensure that they are not too loud.  That the government has spent time on such a venture is entirely ridiculous.

To begin with the pragmatic question first, why in the world is the government wasting time on a bill like this?  When commercials are broadcast louder than the shows that are otherwise airing, it’s safe to say that what results is a minor annoyance at best.  I’m not someone who watches TV often, but I have noticed some commercials are louder than others.  Usually, though, it’s not too bad, and the thought of reaching for the remote never even crosses my mind.  Perhaps the most awful effect coming from the volume of commercials is that it wakes up people who fell asleep during a television show.  National security has never been compromised, and nobody has ever been hurt, because a commercial was louder than the TV show during which it aired.  The problem is, in sum, a minor trifle of an annoyance.

The government’s effort to “fix” this non-problem is likely to create some actual problems to be solved.  TV stations will, of course, be required to comply with whatever regulation the FCC ultimately decides to adopt.  It is likely that networks will be required to invest in hardware and software to analyze the broadcast volume of television shows and commercials to ensure that they are properly equalized.  This hurts small broadcasters who likely have much better things to spend that money on, as well as consumers who will ultimately be responsible for picking up the tab.

In the end, it’s impossible to see this bill as anything other than another example of government intervention into the everyday lives of Americans.  This legislation, quite simply, serves no greater purpose.  It is most unfortunate (though not surprising) that it was passed without a single recorded vote in either the House or the Senate; underscoring the triviality of the bill as well as the careless disregard with which Congress is willing to enact such legislation.

As we should all be fully aware by now, the TSA has managed to reach new levels of absurdity in its performance of security theater at America’s airports.  Americans, in view of the invasiveness of the new fully body scanning devices, are being encouraged to stage a protest against the machines by opting for pat-downs on Thanksgiving Eve.  Hiding in some cave somewhere in Afghanistan, the leaders of al Qaeda must be rolling over with laughter.

Americans, it seems, are poised to do a much better job of terrorizing America’s airways this Thanksgiving than al Qaeda has managed since shutting down all air travel on 9/11.  And, for al Qaeda, what better way to attack America than by doing nothing at all?  That is, in effect, what’s going to end up happening this year if even a small percentage of flying Americans decide to participate in the opt-out effort.

To be sure, al Qaeda is the underlying cause of the disruption that is about to occur in airports across the country.  Their persistent and repeated attempts to attack American civilians have caused the US government to step up efforts to ensure our safety, despite the fact that most of al Qaeda’s most recent attacks have resulted in what appears to be abject failure.  Despite having failed to kill anybody, al Qaeda has, nevertheless, slowly but surely encouraged Americans to give up more and more freedoms to a national government all too eager to take them away.  This is a trend that I’ve noted before, but at least, up until now, our fear has been caused by actual terrorist threats.

This new breed of disruption is a natural consequence of the expansion of the American government’s efforts to combat terrorism at home.  Americans are, by their nature, a freedom loving people.  The recent elections have shown that we also believe in independence, not only as a nation from others, but as individuals from our government as well.  As security measures became more invasive and draconian, it was only a matter of time before the people would begin to push back in dramatic ways.  This, it seems, may be the first round.

Terrorists are not fundamentally murderers.  Murder, to them, is a tool to be used in advancing their agenda.  This holiday season, Americans need not worry about murder as a cause of mayhem.  Government overreach and popular backlash could make as big a mess as a bomb scare would.

As tensions rise and division increases, al Qaeda gets exactly what it wants.  Only this time it is, literally, all our own fault.

Reporting on the matter so far is sparse, but it appears that there may be an activist federal district judge in Oklahoma who has decided to begin the work of frustrating the will of the people.  The case involves an Oklahoma ballot measure to amend the state’s constitution to clarify what lines of authority the state’s courts are allowed to use in performing their judicial function.  The amendment language, among other things, calls out Sharia law as being one line of authority that Oklahoma’s courts are to specifically avoid using.  A Muslim activist sued, prompting Chief Judge Vicki Miles-LaGrange, appointed by Clinton in 1994 to the U.S. District Court in Oklahoma City, to issue an injunction against the measure pending a hearing on its constitutionality under the Federal Constitution.  Far from enjoining the law pending a hearing, this lawsuit should have been dismissed as frivolous without so much as a second thought.

The Oklahoma International Law Amendment of 2010 amends the state constitution with the following language (emphasis added):

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

It is difficult, if not impossible, to mistake the clear purpose of this language.  The people of Oklahoma want their courts deciding cases based on US law.  Though much more specific, this is no different than the thrust of the Federal Constitution which limits courts to cases “arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” (US Const. Article III)

The argument apparently being made against the Oklahoma amendment is twofold. The complaint apparently alleges that the amendment stigmatizes the Muslim religion and would invalidate the complainant’s will, which is based on Sharia law.  In reality, the Oklahoma amendment does no such thing.

The fact that the amendment calls out Sharia law has nothing to do in any way with religion, and certainly does not stigmatize Muslim.  The amendment cites certain authorities of non-domestic character which judges are meant to specifically avoid, including “international or Sharia Law.”  Both international (sometimes called foreign) law and Sharia law are notable in two important ways.  First, international law and Sharia law differ from traditional US law in a variety of important ways, which could easily lead a judge to rule in a way contrary to the legal traditions of America.  Second, and probably more importantly, actual judges deciding actual cases have used international and Sharia law to reach results which are (at least arguably) contrary to the letter and spirit of US domestic law.  Were Sharia law not being used to (arguably) circumvent US law, there would have been no reason to name it in the amendment.

As far as the complainant’s will is concerned, his belief that the amendment would cause it to become invalid seriously misunderstands the plain meaning of the amendment.  A will, in basic terms, is a legal document that establishes instructions for how to dispose of an estate following a person’s death.  Courts enforce wills though a body of US domestic law known as Probate.  Probate law, though not perfectly so, is largely indifferent to the specific instructions provided in an individual’s will and focuses, instead, on providing a general framework for executing the instructions, whatever they may be.  When courts interpret wills, probate law generally requires that wills be evaluated on their own terms.  Thus, when presented with a Sharia will, a court “adher[ing] to the law as provided in … Oklahoma [s]tatutes” must consider the will as a valid instruction set, irrespective of its religious backing, as long as it doesn’t conflict with with probate law.  Of course, if there is a conflict, probate law must win; but that’s true of all wills, not just those inspired by Sharia principles.

The American people are well within their right to insist that judges follow, first and foremost, US domestic law as defined by constitution, statute, and American legal tradition.  The people of Oklahoma have identified two bodies of non-domestic law which are of special significance to today’s legal landscape because real judges in actual cases have begun using them in ways contrary to domestic law.

Because the Oklahoma amendment is perfectly justifiable on non-religious grounds and does not interfere with religious practice, there is no reason to think it may be unconstitutional.  The lawsuit against it should be dismissed.

It looks like the allegiance between the Tea Party and the founders is paying some tangible dividends.  New York Times op-ed contributor Ron Chernow has published a thoroughly incoherent column which purports to pit the Founders against the Tea Party and prove that the advocates for limited government have no special purchase on the people who created that limited government in the first place.  Unfortunately for Ron, his article fails to accomplish that task even by its own terms, nevermind the clear history which would place any one of the Founders, if not in the Tea Party, at least decidedly against President Obama and the liberal Democrats in Congress.

The essence of the author’s argument is that the Founders, far from being a homogeneous group, were a bunch of politicians with a variety of different ideas for how the newly formed nation should be governed.  And certainly, to the extent that that’s his argument, it’s true.  The Constitution itself is a document filled with compromises, most famously the 3/5 compromise on slaves and the large state / small state compromise which led to the level of representation in the House and Senate.  Indeed, even after the delegates had completed their work, the Constitution remained controversial.  This led to the Constitution being assailed in the Antifederalist papers, defended in the Federalist papers, with even more compromise brought thereafter with the drafting and passage of the Bill of Rights.

As the author himself acknowledges, “the founders favored limited government … but they clashed sharply over those limits.”  Notably, the primary argument had nothing to do with the further expansion of federal power.  In general, the Federalists said that the Constitution gives the national government just the right amount of power.  Their opponents, the Antifederalists, warned that the Constitution gave the national government too much.  As the Tea Party fights to get today’s national government back within Constitutional bounds, what they are really fighting to accomplish is to get our national government back in line with the founding era’s liberal view of national power.

Today, of course, the debate has shifted.  Liberals in Congress and President Obama actively champion by their actions a government with no meaningful limits at all.  Indeed, even those limits which should seem insurmountable — the express limits imposed by the Bill of Rights — are being actively undercut by Washington liberals.  Even conservatives are generally unwilling to look past the New Deal’s reallocation of power from the people and the states to the national government; fighting to return us not to the Founders’ vision of America, but to the immediate aftermath of FDR.  There is simply no comparison between today’s politics and the founding era; even King George III would be hard pressed to affect the daily lives of his people the way President Obama is able to affect ours.

In the end, the author concludes that “[n]o single group should ever presume to claim special ownership of the founding fathers or the Constitution they wrought.”  This statement, though somewhat true, is mostly meaningless.  It’s true that no particular group has special ownership of the Founders’ ideals; such ideals, after all, are (theoretically) the birthright of every American.  But it is false to imply, as the author clearly intends, that any group may validly lay claim those ideals.

Today’s liberal Democrats adhere to no ideology but their own — an ideology which seeks to forever destroy the balance of power the Founders once worked so hard and so carefully to establish.

It’s been big news in political circles today that the Republicans have released their Pledge to America for what they are going to do when they regain power in November.  Like the Contract with America that came before it, today’s Pledge has a lot of stuff in it that looks like it’s probably about right on.  Like the Contract that came before it, it’s an open question how much the GOP will actually adhere to the Pledge once they actually get back in power.  As a statement of intentions, however, it strikes me as being generally acceptable.  Unfortunately, to me, it seems to leave out two rather important things.

First, and most importantly, is the fact that we already have a pledge to America, and a contract with America as well.  Both documents are one in the same.  We normally call them the Constitution.  Our first and still most important contract between this government and the people it governs seems featured in the Pledge only in the corners and around the fringes, which is a rather disappointing role for the document that is the guiding implementation of American democracy.  I would have liked to see the Constitution feature more prominently, if for no other reason than to help the Republicans make the case that, this time around, they believe in Constitutional fidelity.

Moving in a similar vein, I also had a rather hard time seeing much principle behind the document.  Most of the document seems to focus on undoing the things that Obama and the liberal Democrats have done to us in the past two years.  While that is both good and important, I really didn’t feel much in the way of a true vision for America.  The lack of vision and lack of principle do not inspire in me much confidence that, when it comes time for Republicans to govern, they will stand by their Pledge.

As an exercise in setting a legislative agenda, I’d say the Pledge manages to get that job done well enough.  But as a tool for motivating the conservative base, attracting reluctant Republicans, or inspiring a nation, the Pledge most certainly falls flat on its face.  The Pledge, at over 20 pages, is also disturbingly long to the point that the length tends to dilute the message.

Overall, it’s certainly nothing that I would have written; but if the Republicans, current and future, adhere to it, then I certainly won’t complain.

As the weekend of September 11 draws to a close, it wraps up a week of news coverage reminding us of where we stand as a nation with respect to the enemy that made itself impossible to miss nine years ago.  The results, it seems, have not been pretty.  Aside from the fact that America is still a defender of Israel and the fact that we still exist at all — though, not to worry, the President is working on solving both of those problems as we speak — the terrorists seem to have done pretty well for themselves.  Americans today have fewer liberties than ever, with freedoms taken from us by conservatives and liberals alike, all in the name of national defense.  Our troops are embroiled in a war in Afghanistan, the terrorists’ home turf, under the guidance of a Commander in Chief that says quite strongly by his actions that their fight is little to him but a political distraction.  But the two biggest stories this week tell a story of American weakness and fear which should be music to the ears of the Radical Islamists who seek to do us harm.

The stories of the week about the Muslim world have undoubtedly been the Florida preacher who was for Koran burning before he was against it, and the ongoing saga of the Ground Zero Mosque.  Right from the start, the preacher was attacked by the operatives of the media with story after maligning story about how he shouldn’t be doing what he wanted to do.  A common refrain started by the media was that the act of burning a Koran would be inflammatory to Muslims, and play into the hands of the radicals that seek to do America harm.  This sentiment was picked up by General Petraeus, warning that it might intensify the danger to our troops overseas, which was all that it took to bring the conservative media on-board with the message.  And then, today, I see that the imam who wants to build the Ground Zero Mosque has added not upsetting terrorists to the list of reasons why he can’t possibly build on another location.  If the General says that moving the mosque will hurt our troops, will that make the conservatives upset by the planned location sit down?

At bottom, we know that the imam is only using that excuse because he knows that it works.  Both at home and abroad, Americans are portrayed as being deathly afraid of upsetting anyone in the Muslim world.  We’re warned repeatedly by the President and others that being anything less than respectful Muslims endangers everyone.  After all, we all know that when terrorists get mad, they shoot people, stab people, blow up civilians, or fly planes into buildings; nevermind that they’d be doing those things anyway.  Be afraid, is the message.  Be afraid to fly on airplanes; be afraid that someone might have a bomb in their shoe, be so afraid that we submit ourselves to high tech full body scans just to go from point A to point B.  Be afraid of showing your outrage against the outrageous; don’t call out Islamic haters for being hateful, don’t burn their Koran even as they burn your flag and Bible, don’t question that mosque being built on Ground Zero.  If you do, then they are going to come after you, and your family, and your neighbors, and the country, and the troops, and so on until someone meaningful enough to you turns up, that you’ll be told terrorists will kill, to make you stop doing whatever it is that you wanted to do.

Terrorists fight by instilling fear.  Their goal is to make their enemies so afraid of the consequences of stepping out of line that they will do whatever the terrorists want.

Radical Islam need not conquer us from without; they win when Americans become too afraid to live free.  This week brought us proof that such fear is palpable and strong enough to have a real effect on our behavior.  We are, increasingly, a people at war with ourselves, with our morality, and with our sense of right and wrong.  We’ve allowed ourselves to give up some freedoms, and find ourselves now being asked to surrender even more, all in the hope that the terrorists might calm down.  But they won’t calm down.  Why would they?  They’re winning.

And scoring their biggest victories without even firing a shot.

Making its way around the fringes of the news this weekend is a quiet move by the federal government to begin drawing in additional dollars to the federal treasury.  In technical terms it’s not a tax increase, although the bottom line effect is the same.  The federal government is poised to demand more money from tens to hundreds of thousands of people.  The key to this trick is an interaction between FEMA and the federal flood insurance program which is played subtly, but which has a real effect on the bank accounts of everyday Americans.

The federal flood insurance program is exactly what its name sounds like: A program by the federal government to provide flood insurance to homeowners who choose to live in areas of likely flooding.  The federal government provides this service because no private insurer in their right mind would ever want to.  Like most insurance programs, people insured by the program are required to pay premiums to their insurer (in this case, the federal government) for the privilege of having insurance.  Unlike most insurance programs, however, people are required by law to buy in if they live in a flood zone and have a mortgage backed by the federal government.  As you might imagine, there are a lot of mortgages which fit that description.

FEMA gets involved because they are the government agency which is responsible for determining what counts as a flood zone in the United States.  They do this by making maps.  The FEMA maps take into account several features which affect whether or not a location is likely to be flooded and group those findings into zones.  FEMA is currently in the process of updating many of their national flood zone maps.

One of the features which affects an area’s classification is the protection afforded by levees.  Areas which may otherwise be at high risk of flooding may have that risk reduced if they are sufficiently protected.  Making that decision is, of course, FEMA’s job, and FEMA has not been kind to levees during their latest round of map making.  The result is that a number of areas now find themselves with a potentially large increase in flood insurance premiums.

Of course, the story isn’t complete without mentioning one other agency of the federal government, the one responsible for maintaining the levees: The Army Corps of Engineers.  Under their current funding process, getting repairs done within the next few decades is a questionable proposition at best, leaving many communities rather the opposite of high and dry.  Many are now faced with the uncomfortable decision of doing the federal government’s job for them (provided they don’t get sued for trying), or feeding the federal wealth destruction machine.

Either way, the federal government has two basic choices: Spend money to solve a problem, or make money by not solving it.  Easy.

In the news recently is a story, apparently breaking on the technology blog ArsTechnica, suggesting that Congress may soon consider the question of whether or not cell phone manufacturers should be required to include FM radios in all of their devices.¹  Required, as in, Congress is going to pass a law making FM radio receivers mandatory.  Even for this current Congress, where payoffs, bribery, and corruption runs rampant, this entire move is somewhat incredible.

As I understand the story right now, the FM radio mandate is part of a proposed compromise between two special interest groups lobbying hard in Washington over the relatively obscure issue of broadcast radio royalties.  Under current copyright law, radio broadcasters are only required to pay performance royalties to songwriters, not to artists or recording labels, but internet radio broadcasters are required to pay all three.  Suffice it to say, internet radio broadcasters don’t like this scheme because it places them at a competitive disadvantage, and the recording labels and artists don’t like this scheme because they don’t get paid.  Both groups have been lobbying hard in Congress to change the law to force broadcast radio to pay all three royalties; broadcast radio, of course, prefers the current system.

Congress, being Congress, is apparently considering doing what it does best:  Bailing out special interests with payoffs using our money.

In this case, the scheme involves mandating FM radios in cell phones.  Under the deal, broadcast radio would need to pick up the tab for all three royalties, up to a certain monetary cap.  In exchange, Congress will mandate that FM radio receivers be placed in portable devices including cell phones, presumably along with MP3 players and their ilk as well.  In this way, the artists and labels get their money and FM radio gets receivers in more places which should increase the number of listeners.  Everybody wins.

Everybody, that is, except for people who want to buy one of these devices.

It should go without saying that FM receivers don’t come free.  There’s circuitry involved, an antenna, and given the digital nature of most portable electronics, software to be written as well.  It’s difficult to say how much money it would cost to add FM radios to cell phones, but it’s clear from the overwhelming lack of FM-enabled phones that, whatever it costs, it’s more than people would be willing to pay.  But, with a congressional mandate, the people wouldn’t be left with a choice.  Manufacturers will pass along those costs, and consumers will still need to buy cell phones.

The good news is that this so-called compromise appears to still be pretty far away from making its way into law.  For the love of free markets, I hope it stays that way.

1. Ars, so far, appears to be the only one with this story, with other sources around the Internet simply referring back to their article.  As someone who follows their blog, I have generally found their technology-related writing to be accurate, so I’m inclined to believe that their post reflects something that is actually happening.  Even so, the lack of other sources is worth noting. [↩]