Following a string of data breaches that touched tens of millions of consumers, and revelations of user data exploitation by popular social media platforms, there’s a broad national consensus: It’s time for internet users to have guarantees about privacy and data protection. Legislation is long overdue.
Some states, such as California, have already taken action. One year ago, California passed a sweeping privacy protections law. Other states have expressed an intention to do so, and Congress is expected to consider legislation. What’s the best way forward?
Congress must take its responsibility to protect user privacy and data seriously. At a minimum, any new federal law should provide internet users with the knowledge of which personal information is collected by the websites they visit and how that information is used. They should have a meaningful opportunity to opt out of these collection and use practices.
Congress should also ensure that any user’s sensitive personal identification information — such as a driver’s license, credit card number or Social Security number — can be collected and retained only with that user’s consent. Reasonable rights to access and correct user-provided information should also be afforded.
But it’s important to realize that web services are offered on a national basis and many would be disrupted by a multiplicity of diverse and contradictory state privacy requirements. The compliance costs could be enormous, particularly for small and startup businesses. There may be situations where it’s literally impossible to comply with the conflicting requirements of different states’ laws.
Not only would compliance with various state requirements be exceedingly difficult, consumers would be constantly unsure about which state’s privacy requirements apply. Consider the mobile service provider whose customer lives in one state, travels to another state and accesses an e-commerce site headquartered in a third state. The service provider is headquartered in a fourth state and uses a server data center in a fifth state.
Whose law applies — the state of residence of the customer or internet edge provider? The state of location of the customer or that of the service provider? Or the state where a server sends and receives customer messages?
To avoid this obvious confusion, it’s far better for Congress to adopt one strong, clear national privacy standard that would be applicable across the entire internet ecosystem, from the service provider to content-providing companies. In order to prevent disruption and consumer confusion in the application of an internet privacy law, Congress should pass its own privacy standard that preempts the states from their own regulation.
Such action would certainly not be new. Congress routinely preempts states in instances where a single uniform national standard is called for.
For example, in the Energy Policy and Conservation Act, Congress preempted state (and local) action on the energy efficiency of appliances where a national standard is in place. In the Toxic Substances Control Act, Congress preempted state action in favor of national regulation of chemicals covered by Environmental Protection Agency rules. Congress has also been quite clear that action by the Food and Drug Administration preempts conflicting state standards in the area of approval of new pharmaceuticals and medical devices.
Appliances, chemicals, prescription drugs, medical devices — all of these are goods of major importance to the national economy. So too is e-commerce involving the sale of both physical and digital goods. Federal preemption was right in the areas referenced above and, to avoid harming the internet economy and preventing consumer misunderstanding, is also right for data privacy standards.
It would be a critical mistake for Congress to enact a data privacy law that only provides a base from which the states can add additional requirements. Through the resulting disruption and chaos, harm would come to the internet economy while doing little if anything to advance real privacy for internet users.
A single, strong national data privacy standard would provide clear rules for companies to follow while fostering consumer understanding of the privacy assurances that have been extended to them.
Fortunately, the need for data privacy protection enjoys rare, widespread bipartisan support. It’s now Congress’ turn to act.
This piece was originally published in the San Francisco Chronicle on June 26, 2019, and is reprinted with permission of the author.
In the Biden Versus Trump Contest, It’s Not the Republican Who is Like Lincoln
If one of the two presidential candidates on the debate stage Thursday night was like Abraham Lincoln, it wasn’t the Republican.
Lincoln had a deep abhorrence to hurting others, as Doris Kearns Goodwin writes in her masterful biography “Team of Rivals.” This was born of Lincoln’s character and his empathy, which provides a model to which U.S. citizens should look in the 2020 presidential election.
“He possessed extraordinary empathy — the gift or curse of putting himself in the place of another, to experience what they were feeling, to understand their motives and desires,” Goodwin writes in the 2005 book. Indeed, Lincoln’s tenderheartedness left him open to melancholy but also endowed him with the ability to lead others.
As you consider for whom you will vote for president, I encourage you to summon the empathy of a Lincoln. Put yourself in the shoes of someone with a perspective and background that might be different from your own.
For example, if I were voting based on my experience living in Utah and interacting with a federal government that thinks it knows better than the state of Utah and overreaches to declare 1.3 million acres for Bears Ears National Monument, I might vote for the Republican candidate who appropriately reduced its size to 201,876 acres.
If I were voting solely based upon which candidate promises to do more to support the religious freedom in which I believe deeply, I might be tempted to vote Republican.
But how should I vote if my ancestors came to America as refugees fleeing violence and political instability? The number of refugees resettled in America has dropped from 89,500 in 2016 to 6,600 in 2020.
Under our current president, America has retreated from being “the shining city upon a hill” of which President Ronald Reagan spoke. Through restrictions on refugees and on legal immigration, through barbaric family separations at the border and the throttling of asylum claims, the Trump administration treats migrant detainees worse than it does prisoners of war.
Of, if I were a Black American, how would I feel in the presence of our current president? Of all the many appeals court judges he has appointed, not one is Black. He has encouraged and refused to denounce the most extreme white nationalist groups. The Voting Rights Act of 1965 preserves the ability of Blacks to vote, but Trump promises a retreat to a racially divided America, with white supporters watching over voting in mostly Black areas.
In 2016, I could not support either presidential campaign of the two major parties because neither possessed the character necessary to lead our nation.
But 2020 is different. I have no connection to any political campaign this year. This year only one of the two major party candidates — Joe Biden — speaks with civility and will act with empathy for and understanding of others.
As Biden said in his Democratic Party acceptance speech, “As God’s children, each of us have a purpose in our lives.” Can you imagine our current president saying this?
Central to Abraham Lincoln’s success as a political leader was his ability to understand and speak to those different from him.
Donald Trump approaches politics as being something of “style and confidence and flair,” as he said in his Republican Party acceptance speech. You may think that you are part of his political coalition when he praised “these pioneers” who “picked up their Bibles, packed up their belongings, climbed into their covered wagons and set out West for the next adventure.”
But does the current president speak for anyone outside of his narrow white and religious political base? His actions and words show that he lacks concern for others, and acts against the public interest of Americans as a whole.
“We can choose a path of becoming angrier, less hopeful, more divided, a path of shadow and suspicion,” Joe Biden said in his acceptance speech. “Or we can choose a different path, and together take this chance to heal, to reform, to unite.”
Will you vote as a partisan or one with a favored interest? Look outside of yourself in your voting as in your everyday life and support a candidate whom you can see others supporting, too.
This OpEd originally appeared in the Salt Lake Tribune on October 25, 2020. The author is a former opinion editor of the Deseret News. An attorney licensed in Utah and Illinois, he also runs Broadband Breakfast, a Washington-based media company focused on politics and technology. Reach him at email@example.com.
Trump Administration and Its Enablers Attempt to Smear Civil Servants, Not Political Holdovers
After two weeks of hearings which revealed President Donald Trump’s attempt to force Ukraine’s government to announce sham investigations into conspiracy theories meant to exonerate Russia from having interfered in the 2016 election and former Vice President Joe Biden’s family, it’s now a foregone conclusion that Democrats will eventually vote to approve articles of impeachment against a president for only the third time in American history.
When the House reconvenes in December, the task of crafting those articles will fall to House Judiciary Chairman Jerrold Nadler and his staff. They will have a lot of material to work with, mostly testimonial evidence from career foreign service officers, civil servants, foreign policy experts, and even an active duty Army officer, Lieutenant Colonel Alexander Vindman.
But rather than accept the testimony of these largely nonpartisan public servants, Republicans have endeavored to shoot the messengers.
Lt. Col. Vindman, who emigrated here as a child from the Soviet Union and who has literally bled for his adopted homeland (earning a Purple Heart in the process), was recently branded as “Vindictive Vindman” by first-term Sen. Marsha Blackburn, R-Tenn.
Other witnesses, like Deputy Assistant Secretary of State George Kent and former Ambassador to Ukraine Marie Yovanovitch, have been branded as “Never Trumpers” by the president himself. And the Intelligence Community whistleblower whose complaint touched off the entire impeachment inquiry has been labeled — without evidence — a “Democrat operative” by Trump defenders such as Rep. Devin Nunes, R-Calif., the Intelligence Committee’s ranking member.
Some observers may see the constant counterpunching and impugning of witnesses’ motives as just another part of Republicans’ strategy to defend President Trump. But it’s not.
It’s much more frightening than that.
The attempt to smear these nonpartisan civil servants is part of a long-running attempt by Trump and his allies to delegitimize the entire concept of a non-partisan civil service.
It’s a project that stems both from Trump’s obsession with loyalty combined with his misguided belief that federal employees work for him, and from his administration’s goal to “deconstruct the administrative state.”
It began shortly after Trump was sworn in on January 20, 2017, when his allies in conservative media began complaining about “Obama holdovers” serving on the staff of the National Security Council, and in places like the Defense Department, State Department, and pretty much every other executive branch agency.
These “holdovers,” Trump allies said, were to blame for many of the president’s failures, and were part of a Democratic “deep state” working to frustrate Trump’s goals.
The problem with that, of course, is that there is no such thing as a “holdover” — at least not the way Trump and his allies mean.
It is possible for an agency official to be a holdover from a previous administration. When President Obama was preparing to take office in January 2009, he asked then-Bush Defense Secretary Robert Gates to remain in his position.
Gates, a political appointee, was literally held over from the previous administration.
But that’s not what the term means to Trump and his allies.
To them, “holdovers” are the career civil servants and subject matter experts who keep the government running. Such people been a fixture in American government since 1883, when then-President Chester Arthur signed the Pendleton Civil Service Reform Act, which created a competitive exam process for selecting government employees and made it illegal to fire them for political reasons.
Arthur was an unlikely booster for the idea of a professional civil service. He was a “stalwart,” part of a faction of the Republican Party that supported the “spoils” system, which gave the president — and the party controlling the White House — complete control of federal hiring. He was elected as James Garfield’s running mate to placate those Republicans who were concerned about Garfield’s potential for turning off the spoils system’s spigot of graft.
But the abundance of patronage jobs — and the president’s control over them — ended up costing Garfield his life in September 1881, months after he’d been shot twice by Charles Guiteau, a mentally ill man who’d attacked Garfield in a Washington, D.C. train station because he’d been denied the job of consul to Vienna or Paris.
The horror of Garfield’s assassination galvanized public support for a civil service bill, and Arthur — who’d been the subject of unfounded suspicions after his name was invoked by Garfield’s assassin — signed it.
Since then, nonpartisan civil servants have been a fact of life for presidents.
Most have understood that the career professionals who staff the executive branch departments have a vital function.
But not Trump.
For Trump, having served in government during Barack Obama’s presidency is enough to cast suspicion on any federal employee, and his suspicion of career professionals has extended throughout the executive branch.
At agencies large and small, policy planning meetings are routinely restricted to political appointees, and some policies — like the proposed (and dead-in-the-water) merger between the Office of Personnel Management and the General Services Administration — have been designed to give the White House more control over hiring.
Many of those policies have not come to fruition, but the goal of getting rid of “disloyal” employees has now become an article of faith for Trump defenders.
A Senate trial will give Republicans yet more reasons to attack career professionals as disloyal.
The next election will determine whether punishment for “disloyalty” will become more than a conservative pipe dream.
Thirty Years After the Berlin Wall Fell, We Are Part of History, But No Longer in History
Thirty years ago this past weekend, on November 9, the Berlin Wall came down. Both as a symbol and as a reality, the fall of the wall opened the door to political freedom in that part of the world dominated by communism. It was a time of stunning optimism and hope, or so it seemed.
But the fall of the wall did much more than that, too: It announced the end of the ideological conflict between market capitalism and communism. That was the end of the major world-historical struggle.
It’s fashionable now to say that all of this celebration was premature: Communism has been replaced as a world-historical ideology by religious fanaticism of the sort the crashed airplanes into the Twin Towers.
Alternatively, say those who are au courant: Border walls live on in the form of poisonous nationalism that has spread to the heart of liberal democracies, even in the United States.
But I dissent. Political history really did reach a breaking point in 1989, much as it did in 1806 (or thereabouts), the year in which the philosopher Georg Wilhelm Friedrich Hegel proclaimed the “end of history” in his Phenomenology of Spirit.
In fact, I celebrate the essential truth of “The End of History” thesis first articulated by Francis Fukuyama in his essay in the summer of 1989, published in the National Interest. Re-reading the piece this weekend, I was struck by how well it has stood up to the test of time.
Experiencing the ‘end of history’ for myself in South Africa
I was living in South Africa and working as a journalist when Fukuyama’s essay was published. Somehow, the buzz about the piece traveled all the way across the Atlantic, and all the way from the northern to the southern hemisphere. I vividly remember that my sister (visiting me in South Africa as we traveled) and I took turns reading the essay to one other, out loud, as we drove the Garden Route from Cape Town to Johannesburg, where I lived.
Fukayama’s piece appears to have been written sometime before the Tiananmen Square massacre on June 4, 1989, in that it goes on at length and speaks positively about the “reform movement” in China. But my reading of the piece certainly came after (and not before) hundreds or more protesters in China were killed and martial law imposed.
Roll back 30 years and remember, however, that China had a much smaller mind-share of world-consciousness. This is, of course, because of subsequent post-Tiananmen developments. China lurched back on the capitalist path toward market-oriented reform in subsequent years. Material benefits have flowed to billions of individuals around the world on the strength of the idea-force that market activity serves human welfare.
What I remembered from reading Fukuyama’s essay is this: Hegel’s view that ideas are more powerful than the material wealth that drives the materialist philosophers’ views.
From the essay:
- For Hegel, all human behavior in the material world, and hence all human history, is rooted in a prior state of consciousness – an idea similar to the one expressed by John Maynard Keynes when he said that the views of men of affairs were usually derived from defunct economists and academic scribblers of earlier generations. This consciousness may not be explicit and self-aware, as are modern political doctrines, but may rather take the form of religion or simple cultural or moral habits. And yet this realm of consciousness in the long run necessarily becomes manifest in the material world, indeed creates the material world in its own image. Consciousness is cause and not effect, and can develop autonomously from the material world; hence the real subtext underlying the apparent jumble of current events is the history of ideology.
Just the blink of an eye
Looking back on the progress and regress of the past three decades, the significance of the Berlin Wall’s collapse still shines brightly.
From the perspective of a single human life, progress comes very slowly. From example, the women who gathered at the Seneca Falls Convention in New York State in July 1848 – the first organized effort to secure women’s suffrage – had a vision to secure the universal vote. Yet it took until August 1920, or 72 years later, before the ratification of the 19th Amendment to the U.S. Constitution secured women’s right to vote.
Historically speaking, a hundred years is still just the blink of an eye. Or, as Fukuyama, age 67, was quoted last week as saying: “In 100 years, people will still mark 1989 as a really important turning point where Europe reunited and the grip of communism really ended, including, two years later, that with the collapse of the Soviet Union itself.”
Fukuyama is right about the enduring significance of November 9, 1989. And his article – written, of course, before the fall of the wall, yet without directly predicting it – highlighted the truth then emerging in the world’s consciousness: Communism is no match for liberal, democratic, market-oriented economies and societies.
From my perch as a journalist writing about the Group Areas Act and other forms of “petit apartheid” in South Africa, I personally witnessed how the truth about the end of history played out in one nation. The white Afrikaner minority that had dominated a black-majority South Africa for years took this comfort from the end of the Cold War: Democratic change was not quite so scary once the ideological influence of the Soviet Union was out of the picture. That enabled reform-minded Afrikaners, including President Frederik Willem de Klerk, to take a bold step and release Nelson Mandela from prison in February 1990. They began negotiating the political future of South Africa.
Of history, but no longer in history
Fukuyama’s provocative and much-discussed thesis – the “end of history,” really? — was of course parodied and, later criticized. But upon re-reading, the article acquits itself quite well.
What Fukuyama was defending was Hegel’s view that – by Hegel’s own eyewitness of Napoleon’s defeat of the Prussian monarchy at the Battle of Jena in 1806 – the ideals of the American and French Revolutions had already become actualized within the vanguard of humanity.
Certainly, more work remained to be done, between 1806 and 1989, in the culmination of liberal democracy. Among these were the end of slavery, the beginning of civil rights, and the universalization of the franchise.
But for Fukuyama and other defenders of Hegel, these refinements in society only underscored that the liberal democratic state – dominant in the wake of World War II, triumphant after the fall of the Berlin Wall – was and is in fact the culmination of world history.
Fukuyama’s piece explicated the twin challenges to liberal democracy: Fascism defeated in World War II, and communism defeated in the Cold War. He even previewed the “contradictions” potentially unresolvable by liberalism: Nationalism and Islamic theocratism. Certainly, both of these have emerged as flash points both “between states still in history, and between those states and those at the end of history,” as he put it at the time.
The truth remain that we cannot on earth improve upon the liberal democratic ideals of the Enlightenment. That is why it is disconcerting to see our country’s two main political parties each flirting with illiberal ideologies in the form of progressive socialism on the one hand, and nativist nationalism on the other.
The passions aroused by government doing “big things” is, as Fukuyama frankly acknowledged, perhaps the greatest challenge to the end of history. We all want to be a part of history. That will remain true even if we can no longer be “in history.” As he noted:
- The end of history will be a very sad time. The struggle for recognition, the willingness to risk one’s life for a purely abstract goal, the worldwide ideological struggle that called forth daring, courage, imagination, and idealism, will be replaced by economic calculation, the endless solving of technical problems, environmental concerns, and the satisfaction of sophisticated consumer demands.
It’s time for someone to stand up and give thanks that history in fact ended in 1989 (or 1806), and I also give thanks for the “post-history” that my children inherit today.
And in acknowledging history’s imperfections that are gradually being made right, we should look back upon the past 200 years as it really was and as it really is: Just two blinks of an eye.