January 27, 2006

Internet with Borders

There are over 100 million internet users in China, the most in any country other than the United States. Chinese internet users are just like us – they like surfing and blogging and podcasting and shopping. It was once thought that the seamless communication across borders allowed by the internet would break down authoritarian information controls rampant in China and elsewhere. By providing access to global information and news sources, it was thought, the borderless internet could help democratize the globe.

January 2006 has not been a good month for that theory.

Just after the new year, Microsoft shut down the blog of a Chinese journalist at the request of the Chinese government. And this week, Google announced that it had created a new Chinese search engine that filters out controversial phrases like “democracy,” “human rights,” “Tibet,” and “Tiananmen Square” in order to comply with Chinese internet restrictions.

What these search engines have done is perfectly understandable from a business perspective. Through the lens of shareholder profit, forfeiting access to over 100 million potential users would be unwise bordering on financially irresponsible. Even considering the interests of ordinary Chinese people, the argument articulated by both Microsoft and Google – essentially, it is better for us to be there with limited service than to offer Chinese users no service at all – is compelling. If Chinese users truly are like us, the majority are using the internet more for online video games than for fermenting dissent anyway. No need to punish these users by denying them Google – how could we live without Google? – just because they happen to live in a repressive country.

But there is something unsettling about the willingness of these internet companies to bow to the whims of the Chinese government in the interest of market share. By acquiescing to the censorship and investigative demands of the Chinese, Microsoft and Google have become enforcers of what both would admit are unreasonable laws. Two years ago, Yahoo went even further, providing government officials the information necessary to capture and imprison another Chinese journalist. While this is particularly troublesome in repressive China, the real problem is that the underlying urge to comply with local law to gain access to more consumers is not limited to one country. As articulated by Rebecca MacKinnon at the Berkman Center for Internet and Society at Harvard Law School, “Can we be sure they won’t do the same thing in response to potentially illegal demands by an overzealous government agency in our own country?”

This hypothetical seems less hypothetical in the wake of recent charges of warrantless government eavesdropping. To their credit, search engines have thus far consistently refused to turn over personally-identifiable information unless compelled by a valid and narrow warrant or subpoena. Still, AOL alone responds to over a thousand such warrants and subpoenas each month, often without the opportunity to notify users that their info has been divulged.

We are fortunate to live in a country that recognizes the rights to free speech and due process, so we need not worry ourselves as much when Google becomes an agent of the government. Still, the precedent set in China is not a good one. Both a privacy debate and a censorship debate are happening in China, and internet search companies are siding with the government there.

The internet, it appears, does have borders after all.

January 20, 2006

Supreme Court Notebook

When I began this column project, I promised to review interesting court cases to make complex decisions more understandable. When the Supreme Court this week issued its most interesting decision of the John Roberts era, I found my first opportunity.

If you’ve already heard about this case, you probably know it as the case that upheld Oregon’s assisted suicide law. The case, however, was not really about assisted suicide. Instead, the Court confronted whether the Justice Department had the right to unilaterally revoke licenses of doctors who had prescribed lethal doses of medicine under the Oregon law. The case was more about federal power than assisted suicide.

The Facts: In 1994, Oregon voters enacted the Death with Dignity Act, a highly-regulated scheme allowing terminally ill patients to request lethal doses of medication in extremely limited circumstances. After several attempts by the federal government to curtail the law failed to pass in Congress, then-Attorney General John Ashcroft announced in 2001 his intent to revoke the licenses of any doctor proscribing medication used in assisted suicide. Oregon immediately filed this suit.

The Ruling: Noting that Ashcroft had made his decision “without consulting Oregon or apparently anyone outside the Justice Department,” the Court voted 6-3 to prevent the doctors’ licenses from being revoked. Justice Kennedy wrote the majority decision and was apparently disturbed that an Attorney General with no medical expertise had taken it upon himself to determine for the nation what was to be considered a legitimate medical purpose. At his whim, Ashcroft had declared a state-authorized medical procedure to be a federal offense. Justice Kennedy was unwilling to grant the Attorney General such extraordinary authority.

Why It’s Interesting: This case is a gem for a host of reasons. First, the way the justices voted is quite quirky. The more liberal justices, who generally argue for the federal government’s power to regulate, sided with Oregon, while the conservative justices, usually the champions of states’ rights, sided with the federal government. Justice Scalia, who generally abhors any effort by the federal government to usurp the power of the states, wrote a dissent based primarily on his personal conclusion that assisted suicide was not a legitimate medical practice. In other words, he agreed with Ashcroft’s judgment on the issue and voted accordingly. This is a far cry from the usual Scalia argument that Supreme Court decisions should be rooted in strict interpretation of the Constitution, not the opinions of the individual justices. The hypocrisy exhibited by both the liberal and conservative justices in arriving at their preferred result further undermines the ideal of an impartial, apolitical court.

The result is all the more quirky because only seven months ago, the Supreme Court considered a related issue – could the Justice Department prosecute those who grew medical marijuana consistent with California law – and came to the exact opposite conclusion. The sides were less clear cut along liberal-conservative lines, but a 6-3 Court ruled then that the Justice Department did have that power. Justice Thomas, the only justice on the losing side in both cases, wrote that this flip flop was “perplexing to say the least.” (Pay attention because I will not write the following sentence very often) Justice Thomas is right. Taken together, the California and Oregon cases provide little guidance on the reach of the federal government in regulating controversial drug treatments.

Perhaps the most significant take home point from this case, however, is what it says about the likely future of the Supreme Court. Chief Justice Roberts joined Justice Scalia’s dissent, setting off alarms for liberals who hoped he would prove more moderate than Scalia. With the apparently imminent addition of Samuel Alito to the Court, should Roberts regularly side with Scalia, Scalia may have a solid block of four votes for the foreseeable future. In addition, Alito’s addition and Justice O’Connor’s departure mean that Justice Kennedy, the author of this opinion will become the Court’s all-important swing vote. Thus, this decision could be a preview of the Court to come. Those concerned that Kennedy will prove less moderate than O’Connor may be comforted by the fact that Scalia’s dissent was characteristically condescending and dismissive of Kennedy’s balance-striking opinion. Such tactics pushed O’Connor away from the arch-conservative camp. Whether they will do the same with Justice Kennedy, the new swing vote, remains to be seen.

January 13, 2006

In the Words of Dr. King

As we embark on this 3-day weekend, I find it appropriate to honor the man for whom this holiday is celebrated. Much has been written, said and thought about Martin Luther King, but no person could more eloquently and effectively capture what Dr. King stood for than Dr. King himself. Below are some of my favorite portions of Dr. King’s “Letter from a Birmingham Jail.” They are as applicable to the quest for social change today as they were when they were written in 1963. If you are interested, click here for the entire letter.

In response to the contention that Dr. King, an outsider, had no interest in the fate of Birmingham: “Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.”

On the timing of his activities: “We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was "well timed" in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word "Wait!" It rings in the ear of every Negro with piercing familiarity. This "Wait" has almost always meant 'Never." We must come to see, with one of our distinguished jurists, that "justice too long delayed is justice denied."… Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait."… When you know forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience.”

On white moderates: “I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season." Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.”

On his willingness to break laws: “You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may won ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."… One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

January 06, 2006

Truths About Guantanamo

The Adminstration this week unveiled its latest attempt to avoid all legal oversight of its activities at the military prison at Guantanamo Bay, Cuba. The Justice Department declared that it was seeking to have all suits brought by Guantanamo detainees dismissed from the federal courts. The federal courts should reject the Justice Department’s action and remind the Administration that it is not beyond the bounds of law.

Those detained at Guantanamo were swept up in broad raids in Afghanistan and Pakistan. There are some very bad guys there. But there are also some guys imprisoned by mistake. There are even some who remain imprisoned although the military has conclusively cleared them as non-combatants. The federal court challenges the Administration seeks to dismiss have been an effective way of separating those who should be imprisoned from those who should not. These suits, it should be noted, do not demand release of the prisoners. Instead, they ask the Administration to charge the detainees with offenses rather than imprison them indefinitely without ever explaining why. Over half of the current detainees have challenged their imprisonment in this way, though if the Adminsitration gets its wish, each of these cases will be thrown out.

Attempts to avoid legal review at Guantanamo began at the very inception of the facility, when, in 2002, Guantanamo Bay was transformed from a naval base to a sprawling military prison for individuals captured in the war on terror. The idea was that because Guantanamo was not American soil, the Administration need not obey American detention laws for those detained there. The Supreme Court rejected this conclusion, declaring that Guantanamo inmates could use the federal courts to challenge their indefinite detentions without charge.

Having lost the initial fight at the Supreme Court, the Administration renewed its attempts to shake off pesky legal oversight with its action this week. In seeking to have the cases dismissed, the Justice Department is relying on a vague provision in a military bill passed late last year that allegedly eliminates federal court jurisdiction over Guantanamo cases. It is far from clear, however, that is what Congress intended.

Senator Carl Levin, a co-sponsor of the provision, claims that the provision was meant to limit only future Guantanamo challenges without affecting cases currently pending. Levin said he rebuffed at least three administration attempts to make the law retroactive while the legislation was being written. “The Administration is now seeking to end-run the legislative process and achieve a result through the courts that it was unable to obtain in Congress,” Levin asserted.

The Administration’s action is simply the latest in a consistent stream of attempts to enlarge executive power and avoid oversight of executive actions – at Guantanamo and elsewhere. Whether it be domestic wiretapping or the Geneva conventions, this Administration has consistently considered itself above the law. Earlier this week, the President declared as he signed the recently-passed ban on torture by American intelligence personnel that he would interpret those restrictions in the context of his broader constitutional powers as commander in chief. In other words, President Bush will enforce the ban so long as he wants to. If the President can simply declare what a law means, then what is the point of writing and debating the law in the first place?

The Administration’s brazen attitude toward review of its activities reminds me of another famous, though fictional, Guantanamo character. In the film “A Few Good Men,” Jack Nicholson plays the above-the-law colonel in command of the Guantanamo naval base. When pressed for a description of his involvement in a hazing incident that led to a soldier’s accidental death, Nicholson feels no need to explain himself. Pressed by a pesky Navy lawyer, Tom Cruise, for the truth, Nicholson famously belts, “You can’t handle the truth!” So it is with this Administration. The Bush Administration feels no need to explain the prolonged detention without charge of hundreds of individuals at Guantanamo Bay. That, my friends, is something we truly can’t handle.