Tag Archive for: Technology

Driverless Money by George Selgin

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Last week I was contemplating a post having to do with driverless cars when, wouldn’t you know it, I received word that the Bank of England had just started a new blog called Bank Underground, and the first substantive post on it had to do with — you guessed it — driverless cars.

As it turned out, I needn’t have worried that Bank Underground had stolen my fire. The post, you see, was written by some employees in the Bank of England’s General Insurance Supervision Division, whose concern was that driverless cars might be bad news for the insurance industry.

The problem, as the Bank of England’s experts see it, is that cars like the ones that Google plans to introduce in 2020 are much better drivers than we humans happen to be — so much better, according to research cited in the post, that “the entire basis of motor insurance, which mainly exists because people crash, could … be upended.”

Driverless cars, therefore, threaten to “wipe out traditional motor insurance.”

It is, of course, a great relief to know that the Bank of England’s experts are keeping a sharp eye out for such threats to the insurance industry. (I suppose they must be working as we speak on some plan for addressing the dire possibility — let us hope it never comes to this — that cancer and other diseases will eventually be eradicated.)

But my own interest in driverless cars is rather different. So far as I’m concerned, the advent of such cars should have us all wondering, not about the future of the insurance industry, but about the future of…the Bank of England, or rather of it and all other central banks.

If driverless cars can upend “the entire basis of motor insurance,” then surely, I should think, an automatic or “driverless” monetary system ought to be capable of upending “the entire basis of monetary policy,” as such policy is presently conducted.

And that, so far as I’m concerned, would be a jolly good thing.

Am I drifting into science fiction? Let’s put matters in perspective. Although experiments involving driverless or “autonomous” cars have been going on for decades, until as recently as one decade ago, the suggestion that such cars would soon be, not only safe enough to replace conventional ones, but far safer, would have struck many people as fantastic.

Consider for a moment the vast array of contingencies such a vehicle must be capable of taking into account in order to avoid accidents and get passengers to some desired destination. Besides having to determine correct routes, follow their many twists and turns, obey traffic signals, and parallel park, they have to be capable of evading all sorts of unpredictable hazards, including other errant vehicles, not to mention jaywalkers and such.

The relevant variables are, in fact, innumerable. Yet using a combination of devices tech wizards have managed to overcome almost every hurdle, and will soon have overcome the few that remain.

All of this would be impressive enough even if human beings were excellent drivers. In fact, they are often very poor drivers indeed, which means that driverless cars are capable, not only of being just as good, but of being far better —  90 percent better, to be precise, since that’s the percentage of all car accidents attributable to human error.

Human beings are bad drivers for all sorts of reasons. They have to perform other tasks that take their mind off the road; their vision is sometimes impaired; they misjudge their own driving capabilities or the workings of their machines; some are sometimes inclined to show off, while others are dangerously timid. Occasionally, instead of relying on their wits, they drive “under the influence.”

Central bankers, being human, suffer from similar human foibles. They are distracted by the back-seat ululations of commercial bankers, exporters, finance ministers, and union leaders, among others. Their vision is at the same time both cloudy and subject to myopia.

Finally, few if any are able to escape altogether the disorienting influence of politics. The history of central banking is, by and large, a history of accidents, if not of tragic accidents, stemming from these and other sorts of human error.

It should not be so difficult, then, to imagine that a “driverless” monetary system might spare humanity such accidents, by guiding monetary policy more responsibly than human beings are capable of doing.

How complicated a challenge is this? Is it really more complicated than that involved in, say, driving from San Francisco to New York? Central bankers themselves like to think so, of course — just as most of us still like to believe that we are better drivers than any computer.

But let’s be reasonable. At bottom central bankers, in their monetary policy deliberations, have to make a decision concerning one thing, and one thing only: should they acquire or sell assets, and how many, or should they do neither?

Unlike a car, which has numerous controls — a steering wheel, signal lights, brakes, and an accelerator — a central bank has basically one, consisting of the instrument with which it adjusts the rate at which assets flow into or out of its balance sheet. Pretty simple.

And the flow itself? Here, to be sure, things get more complicated. What “target” should the central bank have in mind in determining the flow? Should it consist of a single variable, like the inflation rate, or of two or more variables, like inflation and unemployment? But the apparent complexity is, in my humble opinion, a result of confusion on monetary economists’ part, rather than of any genuine trade-offs central bankers face.

As Scott Sumner has been indefatigably arguing for some years now (and as I myself have long maintained), sound monetary policy isn’t a matter of having either a constant rate of inflation or any particular level of either employment or real output. It’s a matter of securing a stable flow of spending, or Nominal GNP, while leaving it to the marketplace to determine how that flow breaks down into separate real output and inflation-rate components.

Scott would have NGDP grow at an annual rate of 4-5 percent; I would be more comfortable with a rate of 2-3 percent. But this number is far less important to the achievement of macroeconomic stability than a commitment to keeping the rate — whatever it happens to be — stable and, therefore, predictable.

So: one goal, and one control. That’s much simpler than driving from San Francisco to New York. Heck, it’s simpler than managing the twists and turns of San Franscisco’s Lombard Street.

And the technology? In principle, one could program a computer to manage the necessary asset purchases or sales. That idea itself is an old one, Milton Friedman having contemplated it almost forty years ago, when computers were still relatively rare.

What Friedman could not have imagined then was a protocol like the one that controls the supply of bitcoins, which has the distinct advantage of being, not only automatic, but tamper-proof: once set going, no-one can easily alter it. The advantage of a bitcoin-style driverless monetary system is that it is, not only capable of steering itself, but incapable of being hijacked.

The bitcoin protocol itself allows the stock of bitcoins to grow at a predetermined and ever-diminishing rate, so that the stock of bitcoins will cease to grow as it approaches a limit of 21 million coins.

But all sorts of protocols may be possible, including ones that would adjust a currency’s supply growth according to its velocity — that is, the rate at which the currency is being spent — so as to maintain a steady flow of spending, à la Sumner. The growth rate could even be made to depend on market-based indicators of the likely future value of NGDP.

This isn’t to say that there aren’t any challenges yet to be overcome in designing a reliable “driverless money.” For one thing, the monetary system as a whole has to be functioning properly: just as a driverless car won’t work if the steering linkage is broken, a driverless monetary system won’t work if it’s so badly tuned that banks end up just sitting on any fresh reserves that come their way.

My point is rather that there’s no good reason for supposing that such challenges are any more insuperable than those against which the designers of driverless cars have prevailed. If driverless car technology has managed to take on San Francisco’s Lombard Street, I see no reason why driverless money technology couldn’t eventually tackle London’s.

What’s more, there is every reason to believe that driverless money would, if given a chance, prove to be far more beneficial to mankind than driverless cars ever will.

For although bad drivers cause plenty of accidents, none has yet managed to wreck an entire economy, as reckless central bankers have sometimes done. If driverless monetary systems merely served to avoid the worst macroeconomic pileups, that alone would be reason enough to favor them.

But they can surely do much better than that. Who knows: perhaps the day will come when, thanks to improvements in driverless monetary technology, central bankers will find themselves with nothing better to do than worry about the future of the hedge fund industry.

Cross-posted from Alt-M.org and Cato.org.

George Selgin

Why Is Snapchat More Secure than the Federal Government? by Andrea Castillo

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Cyberhawks have seized upon this year’s massive hack of the Office of Personnel Management (OPM) to shove a wolfish surveillance bill in a sheepish cybersecurity bill’s clothing down America’s throat.

But the “Cybersecurity Information Sharing Act of 2015” (CISA) would have done nothing to stop the hack that exposed as many as 14 million federal employees’ personnel records. The pro-NSA crowd’s arguments are obvious nonsense — if anything, the OPM hack clearly demonstrates the danger of trusting incompetent government bureaucracies to manage huge datasets of sensitive personal information.

But amid all of the hubbub, these self-styled champions of strong cybersecurity — who also just happen to be anti-private encryption and pro-surveillance — have neglected to raise one important question: Why did a goofy picture-sharing app implement basic security measures before the central repository for all federal personnel data did?

This week, Snapchat announced that the private picture messaging service was offering two-factor authentication for its users. This basic measure of security helps to verify that the person logging in is indeed the legitimate owner of their account by sending out a text message with a special access code to the owner’s cell phone.

That way, a hacker must obtain both your password and your mobile phone to access and control your account. It’s simple, but simple security solutions can sometimes mean the difference between a foiled infiltration and a very, very bad day for a Snapchat user.

Of course, it is too much to expect the chief steward of federal employee information to implement such a simple policy. As the beleaguered office’s Inspector General reported last fall, OPM does not require multi-factor authentication to access its information systems.

If a careless OPM employee chose a weak and easy-to-guess password, or emailed it in plain text across an insecure channel, or merely left it on a sticky note on his or her desk (as is common practice in the federal government), than any common hacker could potentially access vast amounts of federal data.

In other words, an application for sharing pictures of wild parties and funny cats has better authentication standards than the federal government’s primary steward of millions of current and former federal employees’ and contractors’ addresses, Social Security numbers, financial information, and health records. Oh, and that of our military leadership and intelligence contacts — several of which are embedded deep undercover in dangerous missions — as well.

Hackers also accessed the feds’ cache of Standard Form 86 files for the aforementioned groups, dragging countless family members, friends, and colleagues into the databreach crossfire.

To call this a huge mess would be the second biggest understatement of the year. The biggest? That OPM’s substantial information security vulnerabilities are entirely unacceptable and directly at fault for the hack.

The OPM’s annual information security reports to Congress have admitted “material weaknesses” and “significant deficiencies” for years. The department lacked an IT team with “professional security experience and certifications”until 2013. Disgruntled employees could have merely walked off with this data if they wanted to, since OPM does not “maintain a comprehensive inventory of servers, databases, and network devices.” Nor did the OPM encrypt any of the data that the hackers stole — they might as well have just invited our forward friends in China to sweep in through the front door!

As Ars Technica’s Sean Gallagher concludes, “Considering the overall condition of OPM’s security, it’s no surprise that an attacker — almost any attacker — could gain a foothold inside the agency’s network. But attackers didn’t just gain a foothold, they had practically a free run of the networks.”

It’s true that Snapchat has hardly been a paragon of good cybersecurity in the past, as previous security vulnerabilities, breaches, misleading marketing, and the infamous “Snappening” testify. However, there is another important difference between Snapchat and the OPM that puts the humble app ahead of the mighty federal office: Snapchat has to learn from its mistakes.

As a private service provider in a hotly-competitive market that must keep its users happy to stay afloat, Snapchat moved quickly to get its security house in order after their big mistakes. They hired the former social network security leader for Google and started to build a “culture of security” within the firm.

They may still have a long way to go, but these investments and cultural prioritization are important first steps that demonstrate a proactive sense of ownership in their platform’s security. And of course, if they keep screwing up, they’ll be sued out the nose and go out of business for good.

We see no such sense of urgency with OPM. The agency received what could have been a saving wakeup call in last year, when it was discovered that Chinese hackers had accessed OPM databases in March of 2014.

OPM had the opportunity to implement simple encryption and authentication measures, tighten up their ship, and increase employee education about good data and security practices. No such luck! The office more or less continued on its merry way.

No one was fired back then and it looks like no one will get fired now. It’s government work, after all.

Unfortunately, OPM is hardly the only sucker on cybersecurity in the federal government, as my research for the Mercatus Center has found. This kind of unbelievably poor cybersecurity posture is the norm rather than the exception.

In fact, it’s hard to pick what is scarier: that the federal government operates under the digital equivalent of leaving all of their doors and windows unlocked and wide open, or that these same federal agencies want more power to manage your personal data through CISA.


Andrea Castillo

Andrea Castillo is the program manager of the Technology Policy Program for the Mercatus Center at George Mason University and is pursuing a PhD in economics at George Mason University.

AMC’s “Halt and Catch Fire” Is Capitalism’s Finest Hour by Keith Farrell

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AMC’s Halt and Catch Fire is a brilliant achievement. The show is a vibrant look at the emerging personal computer industry in the early 1980s. But more than that, the show is about capitalism, creative destruction, and innovation.

While we all know the PC industry changed the world, the visionaries and creators who brought us into the information age faced uncertainty over what their efforts would yield. They risked everything to build new machines and to create shaky start-ups. Often they failed and lost all they had.

HCF has four main characters: Joe, a visionary and salesman; Cameron, an eccentric programming geek; Gordon, a misunderstood engineering genius; and Gordon’s wife, Donna, a brilliant but unappreciated housewife and engineer.

The show pits programmers, hardware engineers, investors, big businesses, corporate lawyers, venture capitalists, and competing start-ups against each other and, at times, shows them having to cooperate to overcome mutual problems. The result is innovation.

Lee Pace gives an award-worthy performance as Joe MacMillan. The son of a never-present IBM tycoon and a negligent, drug addicted mother, Joe struggles with a host of mental and emotional problems. He’s a man with a brilliant mind and an amazing vision — but he has no computer knowledge or capabilities.

The series begins with his leaving a sales job at IBM in the hope of hijacking Cardiff Electric, a small Texas-based computer company, and launching it into the personal computing game.

As part of his scheme, he gets a low-level job at Cardiff where he recruits Gordon Clark, played by the equally talented Scoot McNairy. Enamored with Gordon’s prior writings on the potential for widespread personal computer use, Joe pleads with Gordon to reverse engineer an IBM-PC with him. The plot delves into the ethical ambiguities of intellectual property law as the two spend days reverse engineering the IBM BIOS.

While the show is fiction, it is inspired in part by the real-life events of Rod Canion, co-founder of Compaq. His book, Open: How Compaq Ended IBM’s PC Domination and Helped Invent Modern Computing serves as a basis for many of the events in the show’s first season.

In 1981, when Canion and his cohorts set out to make a portable PC, the market was dominated by IBM. Because IBM had rushed their IBM-PC to market, the system was made up entirely of off-the-shelf components and other companies’ software.

As a result, it was possible to buy those same components and software and build what was known as an IBM “clone.” But these clones were only mostlycompatible with IBM. While they could run DOS, they may or may not have run other programs written for IBM-PCs.

Because IBM dominated the market, all the best software was being written for IBMs. Canion wanted to build a computer that was 100 percent IBM compatible but cheaper — and portable enough to move from desk to desk.

Canion said in an interview on the Internet History Podcast, “We didn’t want to copy their computer! We wanted to have access to the software that was written for their computer by other people.”

But in order to do that, he and his team had to reverse-engineer the IBM BIOS. They couldn’t just steal or copy the code because it was proprietary technology, but they could figure out what function the code executed and then write their own code to handle the same task.

Canion explains:

What our lawyers told us was that not only can you not use [the copyrighted code], anybody that’s even looked at it — glanced at it — could taint the whole project. … We had two software people. One guy read the code and generated the functional specifications.

So it was like reading hieroglyphics. Figuring out what it does, then writing the specification for what it does. Then once he’s got that specification completed, he sort of hands it through a doorway or a window to another person who’s never seen IBM’s code, and he takes that spec and starts from scratch and writes our own code to be able to do the exact same function.

In Halt and Catch Fire, Joe uses this idea to push Cardiff into making their own PC by intentionally leaking to IBM that he and Gordon had indeed reversed engineered the BIOS. They recruit a young punk-rock programmer named Cameron Howe to write their own BIOS.

While Gordon, Cameron, and Joe all believe that they are the central piece of the plan, the truth is that they all need each other. They also need to get the bosses and investors at Cardiff on their side in order to succeed, which is hard to do after infuriating them. The show demonstrates that for an enterprise to succeed you need to have cooperation between people of varying skill sets and knowledge bases — and between capital and labor.

The series is an exploration of the chaos and creative destruction that goes into the process of innovation. The beginning of the first episode explains the show’s title:

HALT AND CATCH FIRE (HCF): An early computer command that sent the machine into a race condition, forcing all instructions to compete for superiority at once. Control of the computer could be regained.

The show takes this theme of racing for superiority to several levels: the characters, the industry, and finally the economy and the world as a whole.

As Gordon himself declares of the cut-throat environment in which computer innovation occurs, “It’s capitalism at its finest!” HFC depicts Randian heroes: businessmen, entrepreneurs, and creators fight against all odds in a race to change the world.

Now into its second season, the show is exploring the beginnings of the internet, and Cameron is running her own start-up company, Mutiny. I could go on about the outstanding production quality, but the real novelty here is a show where capitalists, entrepreneurs, and titans of industry are regarded as heroic.

Halt and Catch Fire is a brilliant show, but it isn’t wildly popular. I fear it may soon be canceled, so be sure to check it out while it’s still around.


Keith Farrell

Keith Farrell is a freelance writer and political commentator.

Bed Bugs Are the New Plague by Jeffrey A. Tucker

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It must have been pretty rotten to sleep in, say, the 12th century Europe. Your floor was dirt. Your mattress was made from hay or bean husks. The biggest drag of all must have been the bed bug problem. It’s not so fabulous to lie there asleep while thousands of ghastly critters gnaw on your flesh. You wake with rashes all over your body.

They heal gradually in the course of the day, but, at night, it starts all over again.

No, they don’t kill you. But they surely make life desperate and miserable. They know where you are. They sense the carbon dioxide. They are after your blood, so they can stay alive. No wonder some people have been driven to suicide.

It stands to reason that among the earliest priorities of civilized life was the total eradication of bed bugs. And we did it! Thanks to modern pesticides, most especially DDT, generations knew not the bed bug.

That is, at least in capitalist countries. I have a friend from Russia whose mother explained the difference between capitalism and socialism as summed up in bed bugs. In the 1950s, capitalist countries had eliminated them. The socialist world, by contrast, faced an epidemic.

But you know what? They are back with an amazing ferocity, right here in 21st century America.

There is a new book getting rave reviews and high sales: Infested: How the Bed Bug Infiltrated Our Bedrooms and Took Over the World.

You can attend Bed Bug University, which is “an intensive four day course that covers bed bug biology and behavior, treatment protocols and explores the unique legal challenges and business opportunities of bed bugs.”

You can browse the Bed Bug Registry, with dozens of reports coming in from around the country. You can call a local company that specializes in keeping them at bay.

Welcome to the post-DDT world in which fear of pesticides displaced fear of the thing that pesticides took away. Oh, how glorious it is to embrace nature and all its ways — until nature begins to feed on you in your sleep.

The various restrictions and bans from the 1970s have gradually brought back the nightmares that wonderful, effective, killer chemicals took away. Some people claim that today not even DDT works because the new strain of bed bug is stronger than ever.

Forget innovating with new pesticides: the restrictions are just too tight. There is not a single product at your local big box hardware store that can deal with these blood suckers. And the products that more-or-less work that are available online, such as Malathion, are not approved for indoor use — and I know for sure that everyone obeys such rules!

In our current greeny ethos, people are suggesting “natural” methods such as: “take all of your laundry and bedding to the Laundromat and wash and dry it at high temperatures.”

Why not do it at home? Well, thanks to federal regulations, your hot water heater is shipped with a high temperature of 110 degrees, which is something like a luxurious bath for the bed bug. Add your detergent — which, by government decree, no longer has phosphates — and your wash turns into Mr. Bubble happy time for Mr. Bed Bug.

So you could stand over gigantic pots of boiling water in your kitchen, fishing beddings in and out, beating your mattresses outside with sticks, and otherwise sleeping in plastic bags, like they do in the new season of “Orange Is the New Black.” You know, like in prison. Or like in the 12th century.

No matter how modernized we become, no matter how many smartphones and tablets we acquire, we still have to deal with the whole problem of nature trying to eat us — in particular, its most wicked part, the man-eating insect. There is no app for that.

Google around on how many people die from mosquitos, and you are immediately struck by the ghastly reality: These things are even more deadly than government. And that’s really saying something.

But somehow, starting in the late 1960s, we began to forget this. Capitalism achieved a wonderful thing, and we took it for granted. We banned the chemicals that saved us, and gradually came to prohibit the creation of more. We feared a “Silent Spring” but instead created a nation in which the noise we hear at night is of an army of bugs sinking their teeth into our flesh.

A little silence would be welcome.

So here we are: mystified, afraid to lie down and sleep, afraid to buy a sofa from Craigslist, boiling our sheets, living in fear of things we can’t see. It’s the Dark Ages again. It gets worse each year, especially during summer when the bed bugs leave their winter hibernation and gather en masse to become our true and living nightmare.

How bad does it have to get before we again unleash the creative forces of science and capitalism to restore a world that is livable for human beings?


Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World.

The Feds vs. Reason.com Commenters by Ryan Radia

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Our friends over at the Reason Foundation, a venerable libertarian think tank and publisher of Reason magazine, recently received a grand jury subpoena from a federal prosecutor in New York, reports Ken White at Popehat.

The subpoena demands that Reason disclose “all identifying information” it has regarding six pseudonymous users who posted comments about the death and afterlife of a federal judge on Reason’s Hit & Run blog.

These comments came in response to a May 31 post by Nick Gillespie about the trial and sentencing of Ross Ulbricht, who was convicted in February of running an Internet-based narcotics and money laundering platform known as Silk Road.

In late May, Judge Katherine Forrest, who sits on the US District Court for the Southern District of New York, sentenced Ulbricht to life in prison. This sentence was met with mixed reactions, with many commentators criticizing Judge Forrest for handing down what they perceived as an exceedingly harsh sentence.

A few Reason users, some of whom may have followed Reason’s extensive coverage of the fascinating trial, apparently found Ulbricht’s sentence especially infuriating.

One commenter argued that “judges like these … should be taken out back and shot.” Another user, purporting to correct the preceding comment, wrote that “it’s judges like these that will be taken out back and shot.” A follow-up comment suggested the use of a “wood chipper,” so as not to “waste ammunition.” And a user expressed hope that “there is a special place in hell reserved for that horrible woman.”

Within hours, the office of Preet Bharara, the US Attorney for the Southern District of New York, sent Reason a subpoena for these commenters’ identifying information “in connection with an official criminal investigation of a suspected felony being conducted by a federal grand jury.”

This doesn’t mean a grand jury actually asked about the commenters; instead, in federal criminal investigations, it’s typically up to the US Attorney to decide when to issue a subpoena “on behalf” of a grand jury.

The subpoena demands from Reason information about the six users, including their email and Internet Protocol (IP) addresses — which, if disclosed, could enable the government to uncover the true identities of the commenters, perhaps after another round of subpoenas are sent to the users’ respective Internet Service Providers.

Popehat’s Ken White is quite troubled by the government’s decision to issue this subpoena. Ilya Somin, writing at The Volokh Conspiracy, also objects to the subpoena. So do the Cato Institute’s Tim Lynch and Techdirt’s Mike Masnick, among many others.

I too find it quite concerning. Even if this subpoena is valid under current law — more on that angle in a bit — the government made a serious mistake in seeking to force Reason to hand over information that could uncover the six commenters’ identities.

Unless the Department of Justice is investigating a credible threat to Judge Forrest with some plausible connection to the Reason comments at issue, this subpoena will serve only to chill hyperbolic — but nonetheless protected — political speech by anonymous Internet commenters.

And if Reason decides to stand up for its users’ rights, the resulting court battle will amount to a waste of federal law enforcement resources that could instead help bring actual criminals to justice, as Tim Lynch reminds us.

To be sure, I have no problem with the feds seeking to locate and prosecute people who actually threaten to commit murder — which, if transmitted in interstate commerce, is a federal crime under Title 18 USC. § 875.

Threatening to kill a federal judge is especially problematic; assassinations of federal judges do happen from time to time. As such, it’s only natural that law enforcement takes such threats seriously.

Yet, while the comments identified in the subpoena are undeniably vile, they’re also protected by the First Amendment, and rightly so. Hyperbolic political statements have a long history in the United States.

For instance, Ken Shultz notes that Martin Luther King, Jr., once said that “the hottest place in Hell is reserved for those who remain neutral in times of great moral conflict.” Sound familiar?

As for the comments about shooting a federal judge, consider the Vietnam War-era prosecution of Robert Watts for “knowingly and willfully threatening the President.”

At age eighteen, Watts said that if he were forced to join the military and “carry a rifle,” then the “first man I want to get in my sights is L.B.J.” The Supreme Court reversed his conviction, finding that Watts had merely “indulged” in a “kind of political hyperbole.” Id. at 708.

Although these statements, like the Reason comments quoted above, are understandably offensive to many listeners, causing offense alone is no basis for outlawing speech. To the contrary, “a function of free speech under our system of government is to invite dispute,” as the Supreme Court has noted. Indeed, speech can sometimes “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

As for the hyperbolic comments posted on Reason about Judge Forrest, they are plainly not “true threats,” but mere “angry bluster,” as Ken White explains in detail.

The remarks, he notes, were not directed to the Judge, or reasonably calculated to reach her; instead, they appeared on a libertarian political blog notorious for its trash-talking commentariat. The comments lacked any specifics about a specific person’s plans to actually carry out an act of violence; instead, they merely expressed a general desire that a particular person be killed.

And while courts have held on occasion that hoping for someone’s death without evincing a desire to personally kill them can be a true threat, this requires some “causal connection” between the statement and the desired outcome. Again, the Reason comments don’t come close to meeting this threshold.

In short, even if the six Reason users are indicted on federal criminal charges, the First Amendment means the government is all but guaranteed to lose (barring the unlikely scenario the US Attorney’s office is sitting on some damning evidence it hasn’t disclosed).

If the commenters didn’t break the law, then, why can the government use its subpoena power to force Reason to hand over whatever personal information it’s collected about them? Because, as Ken White frets, the US Attorney’s power to issue grand jury subpoenas is so broad that, in most cases, they can be quashed only “when they are irrationally burdensome … or for an improper purpose.”

Moreover, a grand jury — which, again, is typically just another word for “federal prosecutor” — is afforded “wide latitude” in investigating potential crimes, and the “law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.”

And when a grand jury subpoena is “challenged on relevancy grounds the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.”

What about a grand jury subpoena that implicates First Amendment interests?

In theory, “where values of expression are potentially implicated,” a district court should act with “special sensitivity” to “prevent the chilling effect” of “prosecutorial abuse,” in the words of the Fourth Circuit.

In practice, however, courts are extremely reluctant to quash a federal grand jury subpoena on First Amendment grounds. For instance, the District Court for the District of Columbia held in 2011 that “merely issuing a subpoena to uncover the identity of the speaker so that the police can ascertain whether a threat is valid cannot be deemed a Constitutional violation.”

Where does all of this leave us? Reason could move to quash the subpoena — or at least petition the court to limit its scope to identifying information about the more threatening commenters — on the basis that, absent additional evidence that its commenters’ identities are related in any way to some criminally actionable threat, enforcing the subpoena would undermine Reason commenters’ constitutional interest in anonymity while generating information of “negligible value to the government.”

However, because Reason probably could not show the US Attorney is acting in bad faith, or that complying with the subpoena would be unduly burdensome, Reason’s chances of prevailing if it chooses to fight back are not good. That’s a problem for all of us.

This piece first appeared at CEI.org.


Ryan Radia

Ryan Radia is an Associate Director of Technology Studies at the Competitive Enterprise Institute. He focuses on adapting law and public policy to the unique challenges of the information age.