Politics

Here's what you probably don't know: A 1986 law, the Electronic Communications Privacy Act (ECPA), governs much of the electronic privacy activities of the government. And here's the weird thing--it provides protections for electronic data that is LESS than 180 days old, but not for data that is OLDER than 180 days.

Why did policy makers think that distinction made sense? I don't know, but it's one example of how a law written 30 years ago is completely out-of-date and incapable of governing the current data storage practices in the Internet Age. And especially in the age of cloud storage.

I've just received a copy of the lawsuit from the State of Tennessee against the Federal Communications Commission (FCC) for the FCC's order that attempts to overturn laws passed in states regulating municipal broadband networks in those states.

The argument is pretty clear and straightforward, as indeed I think it is. This is a most blatant violation of federalism. There is no constitutional grounds for a federal regulator to think it can overturn laws passed by the duly elected legislatures of the states.

In the Order, the FCC preempts Tennessee law pertaining to the operation of municipal electric plants, including the Electric Power Board of Chattanooga, an instrumentality of the City of Chattanooga, created and controlled by the State of Tennessee. In doing so, the FCC has unlawfully inserted itself between the State of Tennessee and the State's own political subdivisions. The State of Tennessee, as a sovereign and a party to the proceeding below, is aggrieved and seeks relief on the grounds that the Order 1) is contrary to the United States Constitution; 2) is in excess of the Commission's authority; 3) is arbitary, capricious and an abuse of discretion within the meaning of the Administrative Procedures Act; and 4) is otherwise contrary to law. . . . Accordingly, the State of Tennessee respectfully requests that this Court hold unlawful, vacate, enjoin, and set aside the Order, and provide such additional relief as may be appropriate.

Amen.

I'm delighted that the Texas Legislature is considering legislation designed to address a concern I described in an op/ed in the Dallas Morning News a few weeks ago: That of municipalities taking away rights and protections of their citizens by majority vote on referenda.

My favorite line from my op/ed:

If I may be permitted a bit of hyperbole, tyranny isn’t OK just because it is approved by a majority of your fellow townsfolk.

Very interesting and well-researched piece today suggesting that the evidence is piling up about U.S. anti-fracking campaigns being funded (in part at least) by Russian interests.

Read the whole thing. Very detailed. But here's an excerpt:

A shadowy Bermudan company that has funneled tens of millions of dollars to anti-fracking environmentalist groups in the United States is run by executives with deep ties to Russian oil interests and offshore money laundering schemes involving members of President Vladimir Putin’s inner circle.

One of those executives, Nicholas Hoskins, is a director at a hedge fund management firm that has invested heavily in Russian oil and gas. He is also senior counsel at the Bermudan law firm Wakefield Quin and the vice president of a London-based investment firm whose president until recently chaired the board of the state-owned Russian oil company Rosneft.

So Secretary of State John Kerry's idea of diplomacy is to take James Taylor to France and have him sing to the French people "You've Got a Friend?!"

Unfortunately, those of us who support responsible use of innovative energy technologies such as fracking were unable to break through the FUD (fear, uncertainty and doubt) spread by those who were pushing the Denton fracking ban. For various reasons insufficient effort went into addressing the health and environmental concerns of those who are normally in favor of energy production, but who have become fearful from the junk science being peddled by environmental extremists. And so, in Act I, the ban passed by a substantial margin.

Act II begins now, with several lawsuits filed already the day after the election. These lawsuits are not indicators of greed but rather of the very significant legal problems inherent in the ban. Contrary to what some ban proponents have stated, the simple fact that the ban was placed on the ballot does not indicate legal soundness. In fact, the ban is almost certain to be found illegal on multiple fronts—the only question is which set of legal perils prevails first.

Most reasonable people would probably agree that, ideally, drilling for oil and natural gas should take place on relatively large tracts of rural land, well away from residences and public places.  But here’s the poorly understood irony facing Denton voters on November 4: That’s the only kind of drilling that will be stopped if the proposed ban passes.

That’s right: It’s only out-of-the-way, inoffensive drilling on large tracts that will be affected under the ban.

Here’s why: While Denton had a weak drilling ordinance and issued some unwise drilling permits, that ordinance has now been significantly strengthened. Indeed, today’s Denton drilling ordinance has stricter requirements and larger setbacks than that of many other cities in north Texas. Anyone obtaining permits and drilling new wells today has to operate under the newly strengthened ordinance, including 1,200 foot setbacks. Fort Worth’s setback, for example, is only 600 feet.

Only wells on relatively large tracts of land and well away from property lines meet the test of the new ordinance and are thus even candidates to be banned.

Proponents of the ban are still seething over wells that were drilled close to residences and property lines under the old ordinance, or indeed that were drilled on unincorporated land. But the city’s hands are tied over those previously drilled wells.

In relation to the debate over whether and how the U.S. should hand over control of the root zone (IANA) functions of the Internet to an independent, multistakeholder organization like ICANN, the Obama administration (and many others) have been adamant that they "are not turning the Internet over to the United Nations!" We absolutely will not allow that to happen, they insist.

And I give them credit for wisely and uncharacteristically (for this administration) understanding the problem with turning Internet governance over to the United Nations.

The long-term problem, as I have argued previously, is that independent multistakeholder organizations set up to do technical functions that are of interest to the global community have a habit of getting absorbed into the United Nations system.

Here is a list of such organizations that have ended up as "specialized agencies" in the UN system, despite the fact that there was no compelling reason why that function needed to be subject to the rules and governance of a UN organization. Tourism, really?

There’s a bit of a brouhaha the last couple of days about the discovery of a closed Google group that Left-leaning journalists and activists use to coordinate their messaging.

Which really is of no interest to me whatsoever. I assume many such sorts of coordination and communication among political activists and journalists, which is why I wasn’t at all overwrought a few years ago over the JournoList saga.

But buried in the story is something that I DO find interesting. The progressive Left has this funny habit of denouncing and bashing the institutions of the center-right while at the same time, copying them.

In an op/ed published Wednesday in the Dallas Morning News I argue that Republicans should let the Export-Import Bank expire instead of reauthorizing it.

In the piece, I mention a charge that the Export-Import Bank may have loaned money to Mexican drug cartels.

Of course, you can't put hyperlinks or footnotes in op/eds. So here's the source of that little factoid from 2007, compliments of the Wayback Machine.

DALLAS - A News 8 investigation has found that a little known government agency may have unwittingly wasted taxpayers money on top of using the funds to support criminal activity.

The probe originally revealed that small business loans sponsored by the Export-Import Bank of the United States were made to non-existing companies for equipment that wasn't even real.

Now, New 8 has discovered that some of the people who got the Ex-Im Bank loans may have drug connections. The $243 million worth of bad loans were originally made to help trade with Mexico.

The loans have been linked to the Juarez drug cartel, which is known for its brutal murders. The cartel killed one dozen people and buried them in a suburban backyard across the border fro El Paso.

Another loan was linked to the Sinaloa drug cartel, whose business is smuggling heroin into the United States.

The federally funded Ex-Im Bank apparently backed loans to people affiliated with both cartels and the Mexican drug trade.

Under the Freedom of Information Act, News 8 asked for all documentation related to defaulted small business loans made to Mexico from 2002 to 2005. Although there were nearly 200 bad loans, so far, information on only 34 cases has been turned over.

But the bank did give a list of the defaulted loans and the names and addresses of the people who got them in Mexico.

"They have drug connections, which is very disheartening to think that the U.S. government is lending money to documented traffickers in the drug trade that are tied into the cartels in Mexico," said Phil Jordan, the former head of the El Paso Intelligence Center for the DEA and Border Patrol in El Paso.

Jordan ran background checks of the borrowers with two federal sources and found borrowers from Juarez and Sinaloa with criminal ties to money laundering, organized crime or drugs in Mexico. Jordan said he was surprised to find that the Ex-Im Bank didn't do similar checks before guaranteeing the loans.

I was honored to speak at a panel discussion on Friday sponsored by the Congressional Internet Caucus Advisory Committee on whether transferring control of the Internet root zone functions from the U.S. Dept. of Commerce to some yet-to-be-determined multistakeholder organization is a good thing.

The briefing was televised on CSPAN, and the archive video can be seen here.

House Speaker John Boehner has pretty much said that immigration reform is dead, and the main reason seems to be that the Republican Conference has no confidence that the President would faithfully execute the law that resulted from whatever legislative compromise that might arise in Congress.

Congress might require certain border security tests to be met, for instance, before allowing immigrants with legal status to begin applying for citizenship, for example. But the President might just blow off the border security requirements, as he has blown off any number of legal requirements during his term.

So here's where we are: Our President only selectively upholds the laws passed by the Congress. The normal response in our system to such an abrogation of the office of the Presidency would be impeachment, but since there is no will in the Congress for impeachment, we have reached the point where Congress cannot legislate because it doesn't have confidence that the President will faithfully execute the laws it passes.

This is a sad state of affairs.

All legislation is the result of trade offs and compromises. But if we know in advance that the President will pick and choose elements of the law to enforce or ignore, compromise becomes impossible.

The other normal response in our system would be for Congress to simply refuse to fund the Executive Branch until it begins to comply with the laws Congress passes. But there is no will in Congress to do that, either.

Much of this is the fault of letting the Executive Branch grow too large and have too much power. In a limited government as envisioned by our Founders, you could defund the Executive Branch for 3 months and people would hardly notice. But when you've given the Executive Branch such extensive control over the economy, defunding it means virtually shutting down the government.