Institute of Justice

Tim Lee's been reading some of my posts on inane regulatory barriers and suggests I should get into the Institute for Justice's work. I actually first became aware of the insanity of occupational licensing rules courtesy of the Institute of Justice so I'll gladly give them props. I wouldn't really say this is an organization I support, since they do litigation on behalf of all kinds of libertarian causes I don't endorse like destroying public schools and destroying the environment.

Still, some of this is absolutely vital stuff. Consider Texas' effort to require people who fix computers to obtain private investigator's licenses or to force horse dentists to get expensive and irrelevant veterinarian degrees. These kind of regulations are a substantial barrier to economic mobility for a lot of hard-working people who don't necessarily have the start-up capital necessary to break through arbitrary regulatory barriers.

Comments

The Texas computer law is a perfect example of what happens when legislators (A) don't read the laws that industry lobbyists (in this case, for private investigators) draft for them; and (B) have no clue about the industry they're trying to regulate. Interestingly enough, the law also technically criminalizes such things as marketing research and database analysis, as well as the Republican and Democratic parties' use of donation and demographic data for voter targeting.

Of course, the Lege didn't *want* to put every single technology, marketing, and banking firm in Texas in violation of the law, but there's a vast gulf between bad law and stupid law, and for now the law appears to be stupid. God only knows when the Lege will be able to fix this screwup.

Posted by tWB | July 23, 2008 6:39 PM

Yes, the issue of Texas Equine Dentists is 'vital.' Public schools and climate be damned!

Posted by AJ | July 23, 2008 6:43 PM

Having followed IJ's work and contributed to them financially for many years, I was puzzled to read that they do some kind of environmental work. In fact, the work you link to has nothing to do with environmental regulation and everything to do with stifling price competition. Or do you think their work to break good-old-boy taxi monopolies is also "destroying the environment" because more people might take cabs if they were cheaper? How crazy are you on the subject of internal combustion?

And, btw, it's Institute FOR Justice.

Posted by Virginia Postrel | July 23, 2008 6:44 PM

Whether supporting charter schools and vouchers constitute "destroying the public schools" is a matter people can debate, but how eliminating price controls on gasoline would "destroy the environment" is beyond me. (And, for that matter, reasonable people can debate the wisdom of price controls, but that's a side point.)

At least as described in the link above, the IFJ is seeking to overturn a law that mandates a required markup over wholesale on retail gas sales. My only guess is that this law was enacted to prevent gas stations from driving one another out of business during the Depression. If the IFJ was trying to overturn a gas tax or a carbon tax Matt would have a case, but this is just weird.

Price controls? Dude.

Posted by NAL | July 23, 2008 6:45 PM

Ms. Postrel, you must understand that Matthew is the sort of fellow who takes a jet to Aspen or Austin to talk with people who share his view of the world, and to eat at fine dining establishments which no doubt ship in a great many of their ingrediants (correct me if the duck was locally raised in Aspen, Matthew), and then gets back to Washington in time to single out oil companies for "poisoning the planet". This is a kind of performance art, I think.

Posted by Will Allen | July 23, 2008 7:09 PM

He's not a hypocrite, though. He's written many times that voluntarily reducing carbon consumption won't help; it's only by reducing *other people's* consumption through legislation that we can save the earth.

Back to IJ: I like them because they pretty much only take cases that involve issues where libertarians are right. And they stick up for the little guy. I'm glad Virginia Postrel prompted me to click on the link about "destroying the environment," so I could see that that's a complete lie. It's a case in which they overturned a state law that banned retailers from selling gasoline at less than a 6 percent markup. Just a straight economic liberty case, like the rest of their cases.

Posted by too many steves | July 23, 2008 7:20 PM

And how. And somewhat relatedly I'd like to add that we're not creating enough medical schools, either, while the AMA is out whining about how there are too many doctors driving down salaries. Last time I checked it was next to impossible to get into medical school, so they are clearly full of shit.

Posted by Chris | July 23, 2008 7:27 PM

The Texas computer story is bullshit and you should be ashamed of yourself for being so gullible. The people who are spreading it are right-wing assholes who are trying to take down a Texas public agency whose job is to keep businesses from snooping and abusing your personal confidential information. The idea is, if - for example - your employer wants to have an investigator search your office computer for signs that you're stealing money or secrets, the person doing the search has to be a licensed investigator. Ordinary repair work isn't covered.

See the following interview with the Texas official in charge of enforcement:

NPD [an online magazine]: So could you give me a couple of examples as to what would be and what would not be covered under this law?

[Police Captain] Bowie: A basic example would be an individual like a computer repairman who is providing computer repair or support services for a customer; normally that is not a regulated activity. But when an individual is performing work involving the review of computer data for the purpose of investigating criminal or civil matters, then they could fall under the 1701.104, which is considered an investigation company.

NPD: So, maybe I could give you a couple scenarios and you could help - maybe you could explain whether or not it would be covered. For example, let's say there was a network engineer who is trying to find the root cause of a slowdown on the network, and in the course of investigating that, they discover that the root cause is some sort of criminal activity, such as a virus infection, or someone engaging in massive intellectual property violation, in other words "piracy," something like that. Would they then require a private investigation license? Would they have to stop their investigation at that point?

Bowie: Based on the scenario you gave it sounds like they're performing a repair or support service, and they're not - the intent was not to go in and do an investigation, they are just collecting information that they found, and that doesn't, based on that scenario, doesn't rise to that level of an investigation.

NPD: What about a PC repairman who is being asked to check for viruses on a person's computer?

Bowie: That does not rise to that level either.

NPD: What if a parent brought in a computer that they owned, but which is primarily used by a son or daughter, and they wanted to find out, say, the browsing history?

Bowie: That's just considered normal computer repair or support service.

NPD: What wouldn't be considered normal computer repair - can you give me a very specific example where that line is crossed?

Bowie: No, it's - when you read into 1702.104, there is some interpretation there that you have to consider. I can't give you a specific example, I could probably use some type of scenario in the sense of, for example, if an individual is contracted to come in and say, for example, investigate your computer at your company - you have employees there, and you believe identity theft has occurred, that there's been some issues and you want this individual to come in, inspect the computers, you want them to come in, perform an investigation relating to the identity, the habits, the efficiency, movement, affiliations or locations or transactions and acts, or the character of a person, or the location and disposition of lost or stolen property, or some type of damage to the system, then I think you're moving more towards the spirit of the law, and falling into an investigations company.

NPD: Okay, so once you get to that point - this is something that's considered now to be routine is, if a person is suspected of - well, you could say a number of different things. Not just illegal activity but also perhaps, unauthorized use of the network - recreational network use - would that speak to the character of a person if they're browsing YouTube at work, and an investigation is made to determine if someone is browsing YouTube at work?

Bowie: I think what you have to do is take those on a case-by-case basis, and do a thorough investigation into the matter to determine whether a violation of the code has occurred. You just have to keep in mind that every scenario and case is different, and you have to take it on a case-by-case basis, and use the utmost discretion.

NPD: What happens if for, whatever reason, someone is ignorant of the law and they violate the law accidentally - that they perform an investigation, and in their particular case, even though they didn't intend to violate the law, they did? What happens then?

Bowie: Well, then again, it goes back to on a case-by-case basis, it involves good investigative work on behalf of the investigator looking into the matter, and then you have to evaluate what occurred, and what the individual knew, and what happened - and present the case to the court or to the prosecutor, if it even rises to that level.

NPD: Why do you think that this has been so controversial?

Bowie: As for as why it's been so controversial? I believe that there are entities or individuals that just want clarification and to get some understanding in regards to the statute, and it just recently became known to the media in regards to the individuals who raised the question, and of course the law was passed last year, but it has just been brought to media attention here just recently.

NPD: Is there any way you can think of to clarify the law and the interpretation of the law even further, so that instead of having to rely on the case-by-case basis scenario, to really hammer that down, "yes this case would be considered a private investigation, and this case would not."

Bowie: One thing individuals can do is they can definitely log on to our Web site, and when they get to the [Texas] Private Security Bureau Web site, there's a spot on the Web site called Private Security Bureau Opinion Summaries, and you click on that, and it has some definitions and even examples and some clarifications of 1702, and individuals can click on that and it'll definitely provide them with a lot of good information.

NPD: Well, thank you for speaking with us.

http://www.networkperformancedaily.com/2008/07/interview_with_capt_renearl_bo.html

Next time, Matt, do 5 minutes worth of googling before you repeat every stinking piece of right-wing shit that turns up in your in-box.

Posted by bloix | July 23, 2008 7:48 PM

The Urban Justice Center [in NYC] might be more in line with your ideological leanings but their focus on securing individual rights as they relate to commerce are limited at this point to small scale street vending. You could start a new 'Sensible Zoning Project' at UJC and go on to be the Robert Moses of horse dentistry and having a beer at the movies.

Note: The history of "first amendment" vending in NYC [and all across the US] is fascinating. In a nutshell, the first amendment should in theory secure the right of all Americans to sell "speech" [books, art, performance] in any space where they are allowed to assemble. However it rarely works this way most locales place numerous restrictions of dubious Constitutional legitimacy.

Posted by joejoejoe | July 23, 2008 7:48 PM

The Texas computer story is bullshit and you should be ashamed of yourself for being so gullible. The people who are spreading it are right-wing assholes who are trying to take down a Texas public agency whose job is to keep businesses from snooping and abusing your personal confidential information. The idea is, if - for example - your employer wants to have an investigator search your office computer for signs that you're stealing money or secrets, the person doing the search has to be a licensed investigator. Ordinary repair work isn't covered.

See the following interview with the Texas official in charge of enforcement:

NPD [an online magazine]: So could you give me a couple of examples as to what would be and what would not be covered under this law?

[Police Captain] Bowie: A basic example would be an individual like a computer repairman who is providing computer repair or support services for a customer; normally that is not a regulated activity. But when an individual is performing work involving the review of computer data for the purpose of investigating criminal or civil matters, then they could fall under the 1701.104, which is considered an investigation company.

NPD: So, maybe I could give you a couple scenarios and you could help - maybe you could explain whether or not it would be covered. For example, let's say there was a network engineer who is trying to find the root cause of a slowdown on the network, and in the course of investigating that, they discover that the root cause is some sort of criminal activity, such as a virus infection, or someone engaging in massive intellectual property violation, in other words "piracy," something like that. Would they then require a private investigation license? Would they have to stop their investigation at that point?

Bowie: Based on the scenario you gave it sounds like they're performing a repair or support service, and they're not - the intent was not to go in and do an investigation, they are just collecting information that they found, and that doesn't, based on that scenario, doesn't rise to that level of an investigation.

NPD: What about a PC repairman who is being asked to check for viruses on a person's computer?

Bowie: That does not rise to that level either.

NPD: What if a parent brought in a computer that they owned, but which is primarily used by a son or daughter, and they wanted to find out, say, the browsing history?

Bowie: That's just considered normal computer repair or support service.

NPD: What wouldn't be considered normal computer repair - can you give me a very specific example where that line is crossed?

Bowie: No, it's - when you read into 1702.104, there is some interpretation there that you have to consider. I can't give you a specific example, I could probably use some type of scenario in the sense of, for example, if an individual is contracted to come in and say, for example, investigate your computer at your company - you have employees there, and you believe identity theft has occurred, that there's been some issues and you want this individual to come in, inspect the computers, you want them to come in, perform an investigation relating to the identity, the habits, the efficiency, movement, affiliations or locations or transactions and acts, or the character of a person, or the location and disposition of lost or stolen property, or some type of damage to the system, then I think you're moving more towards the spirit of the law, and falling into an investigations company.

NPD: Okay, so once you get to that point - this is something that's considered now to be routine is, if a person is suspected of - well, you could say a number of different things. Not just illegal activity but also perhaps, unauthorized use of the network - recreational network use - would that speak to the character of a person if they're browsing YouTube at work, and an investigation is made to determine if someone is browsing YouTube at work?

Bowie: I think what you have to do is take those on a case-by-case basis, and do a thorough investigation into the matter to determine whether a violation of the code has occurred. You just have to keep in mind that every scenario and case is different, and you have to take it on a case-by-case basis, and use the utmost discretion.

NPD: What happens if for, whatever reason, someone is ignorant of the law and they violate the law accidentally - that they perform an investigation, and in their particular case, even though they didn't intend to violate the law, they did? What happens then?

Bowie: Well, then again, it goes back to on a case-by-case basis, it involves good investigative work on behalf of the investigator looking into the matter, and then you have to evaluate what occurred, and what the individual knew, and what happened - and present the case to the court or to the prosecutor, if it even rises to that level.

NPD: Why do you think that this has been so controversial?

Bowie: As for as why it's been so controversial? I believe that there are entities or individuals that just want clarification and to get some understanding in regards to the statute, and it just recently became known to the media in regards to the individuals who raised the question, and of course the law was passed last year, but it has just been brought to media attention here just recently.

NPD: Is there any way you can think of to clarify the law and the interpretation of the law even further, so that instead of having to rely on the case-by-case basis scenario, to really hammer that down, "yes this case would be considered a private investigation, and this case would not."

Bowie: One thing individuals can do is they can definitely log on to our Web site, and when they get to the [Texas] Private Security Bureau Web site, there's a spot on the Web site called Private Security Bureau Opinion Summaries, and you click on that, and it has some definitions and even examples and some clarifications of 1702, and individuals can click on that and it'll definitely provide them with a lot of good information.

NPD: Well, thank you for speaking with us.

http://www.networkperformancedaily.com/2008/07/interview_with_capt_renearl_bo.html

Next time, Matt, do 5 minutes worth of googling before you repeat every stinking piece of right-wing shit that turns up in your in-box.

Posted by bloix | July 23, 2008 7:51 PM

My apologies for the double posting of such a long comment- this site is so slow to post that sometimes I think it's kicked me off when it hasn't -

Posted by Bloix | July 23, 2008 7:55 PM

If bloix is right, this post was a really sloppy display of ignorance. Come on Matt, live up to Marc Ambinder's singling out of you as the most skeptical person he knows!

Posted by Chris O. | July 23, 2008 8:00 PM

Ms Postrel, you have to understand that your friend Will Allen is a sociopath whose love of death is his reason for posting. The sort of idiot libertarian who suggests that slaughtering Iraqis is good for them. The kind of moron who thinks that anyone who ever takes a jet plane for any reason is obviously anti-environment - even though Will himself supports the use of massive amounts of air traffic in the form of bombers dropping hundreds of thousands of pounds of killing force on innocents below.

His posts are a kind of idiot performance art - see his exegesis on why Reagan's support of the murderous Khmer Rouge is of no import but McGovern's opposition to the dictatorship of Cambodia is a crime against humanity. That is to say: Will Allen is an idiot.

Posted by Not as stupid as Will Allen | July 23, 2008 8:01 PM

About a week ago on The Kojo Nnamdi Show, they did a discussion of municipal broadband. Some caller started ranting about how awful deregulation is, how deregulation is responsible for Enron, the subprime crisis, and so on. He more or less suggested that everything should be regulated as much as possible.

Which made my head hurt.

Posted by The Pop View | July 23, 2008 8:07 PM

And, btw, it's Institute FOR Justice.

Not on Matt's blog.

Posted by blah | July 23, 2008 8:11 PM

It looks like the Texas legislature was trying to pass a law to regulate the forensic examination of computers to investigators and the Institute of Justice jumped on the language to say that any computer tech that checks your hard drive is conducting a forensic examination. My half assed analysis suggests IoJ's claims are a stretch but they are right to focus on possible abuses due to sloppy legislative language.

There's a neutral news story in my signature and below is a link to the actual law.
http://www.legis.state.tx.us/tlodocs/80R/billtext/html/HB02833F.htm

Posted by joejoejoe | July 23, 2008 8:12 PM

Yep...the reason I give the IJ a few hundred bucks per annum is because I want to help them DESTROY THE ENVIRONMENT.

What a putz.

Posted by Stewie | July 23, 2008 8:14 PM

Joejoejoe - the story you link to is NOT neutral. The only sources cited are either employed by or clients of the "Institute for Justice," a right-wing non-profit founded by Clint Bolick and funded by Olin, Scaife, Bradley, and other charter members of the VRWC. No neutral observers and no government representatives are quoted.

see http://www.pfaw.org/pfaw/general/default.aspx?oid=7645

Posted by Bloix | July 23, 2008 8:31 PM

Only trust fund scumbags can afford to break into horse dentistry in Texas.

Posted by Aleks | July 23, 2008 8:31 PM

Consider Texas' effort to require people who fix computers to obtain private investigator's licenses

Having been paid money many times to repair computers, I was all like, huh? After much digging, it seems that the IJ has sorta overplayed the significance. The story you actually want to read is this one or this one. (Or even the slashdot thread.)

Now the law is an example of how things can go wrong in the legislative sausage-making process; it's really awesomely badly written even for civil law, even for the Texas Lege, as you can see right here.

At any rate, it seems to be intended to require people who contract to do forensics work (that is, looking for evidence of criminal wrong-doing) on computers for the police and other groups to have a PI license. Givent hate everyone else in that game has to have a licence this is probably no bad thing in and of itself.

It also appears that computer repair, key-cutting (but not locksmithing), installing burglar alarms and the like are exempted under this:

SECTION 16. Section 1702.324, Occupations Code, as amended by Chapters 518, 728, 1102, and 1155, Acts of the 79th Legislature, Regular Session, 2005, is amended by reenacting and amending Subsection (b) and adding Subsection (c) to read as follows:

(b) This chapter does not apply to:

(1) a manufacturer or a manufacturer's authorized distributor while selling [who sells] equipment intended for resale [and does not perform any other service that requires a license under this chapter];

(2) a person engaged exclusively in the business of obtaining and providing information to:
(A) determine creditworthiness;
(B) collect debts; or
(C) ascertain the reliability of information provided by an applicant for property, life, or disability insurance or an indemnity or surety bond;

(3) a person engaged exclusively in the business of repossessing property that is secured by a mortgage or other security interest;

(4) a person who[:
[(A)] is engaged in the business of psychological testing or other testing and interviewing services, including services to determine attitudes, honesty, intelligence, personality, and skills, for preemployment purposes[; and
[(B) does not perform any other service that requires a license under this chapter];

(5) a person who:
(A) is engaged in obtaining information that is a public record under Chapter 552, Government Code, regardless of whether the person receives compensation;
(B) is not a full-time employee, as defined by Section 61.001, Labor Code, of a person licensed under this chapter; and
(C) does not perform any other act that requires a license under this chapter;

(6) a licensed engineer practicing engineering or directly supervising engineering practice under Chapter 1001, including forensic analysis, burglar alarm system engineering, and necessary data collection;

(7) an employee of a cattle association who inspects livestock brands under the authority granted to the cattle association by the Grain Inspection, Packers and Stockyards Administration of the United States Department of Agriculture;

(8) a landman performing activities in the course and scope of the landman's business;

(9) an attorney while engaged in the practice of law;

(10) a person who obtains a document for use in litigation under an authorization or subpoena issued for a written or oral deposition;

(11) an admitted insurer, insurance adjuster, agent, or insurance broker licensed by the state, performing duties in connection with insurance transacted by that person;

(12) a person who on the person's own property or on property owned or managed by the person's employer:
(A) installs, changes, or repairs a mechanical security device;
(B) repairs an electronic security device; or
(C) cuts or makes a key for a security device;

(13) security personnel, including security contract personnel, working at a commercial nuclear power plant licensed by the United States Nuclear Regulatory Commission;

(14) a person or firm licensed as an accountant or accounting firm under Chapter 901, an owner of an accounting firm, or an employee of an accountant or accounting firm while performing services regulated under Chapter 901; or

(15) a retailer, wholesaler, or other person who sells mechanical security devices, including locks and deadbolts, but who does not:
(A) service mechanical security devices for the
public outside of the person's premises; or
(B) claim to act as a locksmith.

(c) The exemptions provided by Subsection (b) apply only to a person described in that subsection while the person is performing services directly related to and dependent on the provision of the exempted service that does not otherwise require licensing under this chapter. The exemptions do not apply to activities or services that are independent of the service or profession that is the basis for the exemption.

Anyways: it could be better written, but requiring a licence to perform computer repair under this section would appear to be an accident, if that is the way it would be actually be interpreted by the courts.

Which isn't to say they shouldn't sue to at least help clarify what the hell is going on, but the PR associated appears to be flat-out wrong or deceptive.

max
['I think you got suckered, Matthew.']

Posted by max | July 23, 2008 8:42 PM

The IJ prosecuted Kelo v. New London, the nearly-successful attempt to eliminate all takings of private property in the country by cherry-picking a case that they knew would pluck at the Supreme Court's heartstrings.

Somehow the irony of the Supreme Court imposing a baseline regulation on every zoning and development board in the country was lost on them, I suppose.

They're a sneaky, manipulative libertarian spin machine. That's all.

Posted by Adam | July 23, 2008 9:08 PM

I'm very curious as to your throwaway comment on school choice; please elaborate or point to previous posts on the topic. I have the very strong impression that most people who are anti-school choice either have a vested interest in maintaining existing funding patterns (ie, unions) or are not affected either way (ie, live in wealthy public school districts or send their kids to private schools). I would have thought that any advocate of better education for the poor would have generally favored school choice, or at least not equated it with destroying public schools.

Posted by Amitav | July 23, 2008 9:40 PM

Institute of Justice vs. The Evil League of Evil: whood win?

Posted by DonBoy | July 23, 2008 9:41 PM

I'm very curious as to your throwaway comment on school choice; please elaborate or point to previous posts on the topic. I have the very strong impression that most people who are anti-school choice either have a vested interest in maintaining existing funding patterns (ie, unions) or are not affected either way (ie, live in wealthy public school districts or send their kids to private schools). I would have thought that any advocate of better education for the poor would have generally favored school choice, or at least not equated it with destroying public schools.

Posted by Amitav | July 23, 2008 9:44 PM

If Postrel's for them, they're a pack of shites. Shorthand is useful sometimes.

There is a tendency of young folk, often smart overeducated young folk, to think libertarians have a point. They don't.

Happy to discuss regulations and their costs and benefits. But default ideological assholes are a cost, not a benefit, to the discussion.

Posted by david | July 23, 2008 9:52 PM

Is this the same Justice dillio with Aquaman? I say they are a front for Big Icthology.

Posted by joejoejoe | July 23, 2008 10:12 PM

Max: the statute isn't badly written. Yes, it's it's difficult to understand, but it's not written to be easy to understand. It's written to be hard to misunderstand, which is a very different thing. People who criticize legal drafting (of statutes and contracts) don't get this - we lawyers write to eliminate the sort of ambiguity that everyone tolerates in ordinary speech, where you assume that the speaker and hearer really do want to understand each other. We assume that the hearer wants to twist our words and so we write to allow only one possible meaning, and ease of understanding be damned.

In this case, there is no doubt at all that routine repair doesn't require a license. Why? Because sec 1(a) tells us that you need a license only if you are in the business of obtaining information relating to crimes or frauds, or information about the identity and personal habits of a person, or recovery of stolen property, or the cause of an accident, fire, or injury. So if you're in the business of computer repair, IT DOESN'T APPLY.

Why does the "Institute for Justice" say otherwise? Because they're ratfuckers, that's why. They are trying to stir up animosity to government in general, and in particular, they are funded by people who want to spy on you without having to hire state-regulated investigators (who know the laws of privacy and have to be bonded). So if they convince enough computer techs that the law hurts them, maybe they can get the law overturned and your employer will be able to hire whoever they want to read your emails.

Posted by Bloix | July 23, 2008 10:40 PM

There was a recent comment about Batman that he manged to be both libertarian and fascist. The author thought this was odd.

He must not have much experience with online "libertarians." The kind of fascists who will stomp on the faces of brown people forever (or at least as long as they sit on top of resources the "libertarians" want), but insist that they are bringing "freedom" and that those who oppose this "freedom" are obviously in the business of supporting dictators.

That this is an childish dichotomy never strikes them. That an occasional flight, even as one is opposed to excess greenhouse gasses, does not constitute some kind of hypocrisy is far beyond these simpletons' binary thinking. It's the "Al Gore must not be serious because he doesn't walk to his overseas speaking engagements" idiocy.

It's a wonder that any of these morons are gainfully employed.

Posted by Not as stupid as Will Allen | July 23, 2008 11:55 PM

The IJ prosecuted Kelo v. New London, the nearly-successful attempt to eliminate all takings of private property in the country by cherry-picking a case that they knew would pluck at the Supreme Court's heartstrings.

I think you mean all takings where the government takes property to give to developers on the theory that it will promote "economic development" of an area the government declares "blighted". Takings for actual public uses like roads and schools would have been unaffected. As a lefty lawyer, I support the result in Kelo but you're completely misrepresenting it.

And all impact litigators pick sympathetic plaintiffs when they can. That's why groups suing for marriage equality sue on behalf of a pediatrician and a police officer who have been in a committed, monogamous relationship for the past 30 years, not on behalf of two guys who have been shacking up in an "open" relationship for the past year and want to get married for the tax benefits. The NAACP did the same thing when they were litigating "separate but equal" cases in 30's and 40's, and after that when they were trying to get Brown enforced against "massive resistance." It's not like this is some unusual, nefarious strategy on behalf of IJ.

Posted by tennisfan | July 24, 2008 12:29 AM

Meathead, your obsessive/compulsive disorder is flaring up again. Of course, you are lying again as well. Of course I never said that anyone who takes a flight is anti-environment. I said a person who purchases the products that oil companies sell, to fly to Aspen or Austin to gab with other people, and then singles out oil companies for poisoning the planet, is engaged in performance art. I should have added that it is very silly performance art.

Sort of like how you work hard to keep dictators in power until the end of time, because you don't think brown people can govern themselves, you want what the dictator is stealing from the brown people, and because you like to feel good about yourself.

Posted by Will Allen | July 24, 2008 12:37 AM

Will Allen's 12:37 comment contains so many disconnected, contradictory ideas and strawmen that it has opened a black hole in the internet and sucked in the entire series of tubes. Rarely has ideological masturbation been so cybernetically destructive.

Posted by Reality Man | July 24, 2008 2:04 AM

I think you mean all takings where the government takes property to give to developers on the theory that it will promote "economic development" of an area the government declares "blighted". Takings for actual public uses like roads and schools would have been unaffected. As a lefty lawyer, I support the result in Kelo but you're completely misrepresenting it.

No, that's actually a relatively reasonable result, though as a fellow lefty law student one that I more or less disagree with. The absurd thing about Kelo is precisely that that was not what the IJ argued. They tried to prevent all takings, period.

The trick -- though not a very well-concealed one -- was arguing that if the potential outcome of a development plan was to transfer land claimed in a takings to a private entity, that taking would be presumptively unconstitutional, even if it took place under the aegis of a development plan of the sort that's been standard practice for the better part of a century. The Court rightly declined to second-guess the motives of every local planning board in the nation by adopting that test as a baseline.

Consider what you're saying -- does the government generally claim land for public use and then manage it internally? No. Never has.

Taking land for a school via the eminent domain power still involves building the school, so there's a huge potential benefit to contractors that under the test the IJ proposed for Kelo would class the taking as a private benefit.

Under that logic, the government couldn't claim land to build a railroad unless you actually want the government to run the railroad, which strikes me as a somewhat un-libertarian policy.

It's not like this is some unusual, nefarious strategy on behalf of IJ.

Not saying it was. It almost worked. But the difference between, say, O'Connor's opinion for the unanimous court in Midkiff and her opinion for the dissenters years later in Kelo is strikingly dissonant, and the facts aren't distinct. At all. It shouldn't have been 5-4, and the fact that it was speaks well of IJ as litigators, but that doesn't mean it's not worrisome that it was that close.

Posted by Adam | July 24, 2008 2:43 AM

Based on the interview with the individual above, it seems clear that the law is intended to regulate computer forensics practitioners whose primary job function is just that - computer forensics in cases of civil or criminal computer abuse.

It's not even clear the it covers "computer security" people in general as that could easily overlap with "computer support" people. Almost every "computer support" person does "computer security" work, even it's nothing more than installing anti-malware software and locking down system services on a machine. But this law appears to be specific to those people who are contracted to do specific computer forensics work involving civil or criminal computer abuse.

While that may overlap with "computer support" people to some degree, as long as the idiots involved in enforcing the law don't interpret it that way, it's probably not a bad law.

Of course, the problem always is "the idiots involved in enforcing the law" because it's to their career advantage to over-enforce so they can explain that they're "doing their job." An example would be the prosecution of Winona Ryder for shoplifting in LA. The DA who elected to prosecute as a felony on weak evidence was elected based on his "get tough with celebrities" policy resulting from the Robert Downey drug case fallout. He was also the son of an FBI agent - relevant because Ryder wears "Free Leonard Peltier" lapel buttons to public events. That case was a clear frameup for political gain.

Posted by Richard Steven Hack | July 24, 2008 6:36 AM

I find the Institute for Justice iffy, to say the least, but there clearly are state laws that are more in the interest of commercial/professional organizations. One I've run up against is Georgia's
law requiring an eye exam if you want to replace glasses more than 24 months old. My old prescription was fine, but the law says I needed an exam. The exam, natch, showed that my prescriptin would be virtually unchanged.
The rational was that it would increase early diagnosis of eye disease. The reality is that if increase medical costs, and profits for optometrists.
In general, I'm guessing that what amounts to a medical monopoly helps (though is hardly the most important cause) in keeping health care costs high.

Posted by MR Bill | July 24, 2008 9:03 AM

Because sec 1(a) tells us that you need a license only if you are in the business of obtaining information relating to crimes or frauds, or information about the identity and personal habits of a person, or recovery of stolen property, or the cause of an accident, fire, or injury.

It may not apply to standard computer repair, but it most certainly applies to tasks that many systems admins have had to do in their career. When I worked for a small ISP, we were regularly asked by police to "[obtain] information relating to crimes or frauds" from our systems. Or is a systems admin really supposed to tell his boss, when asked to stop someone who's broken into the company servers, "sorry, I'm not a licensed PI, I guess we have to call one up and hope we can get them on the job before the intruder steals our customers' credit card numbers."

"Computer forensics" is often part of the work done by systems admins of the course of their jobs, and that appears to be covered. I'm a techie, not a lawyer, so I certainly admit I might be missing something, but based on how you describe the law, it sure sounds like a bad one to me.

Posted by Phaedrus | July 24, 2008 10:08 AM

I had a similar post to Tim's on my blog a couple days ago. Face it, Matt: you're sort of a libertarian.

But branding the IJ's work to repeal a very non-transparent mechanism that keeps gas prices artificially high as somehow "destroying the environment" is a total cheap shot. If high gas prices are good for the environment (which they probably are), then surely there are more transparent ways (a gas tax) of keeping gas prices high. Requiring all gas stations to mark up gas by a minimum of 9% just plain smacks of central planning and government intervention into the economy which, were it for something like affordable housing or parking mandates, I'm sure you'd be against.

Posted by Christopher Monnier | July 24, 2008 10:46 AM

Doug Kendall of the Community Rights Counsel (now the Center for Constitutional Accountability) convincingly argued that various takings campaigns by libertarian groups were ultimately aimed at establishing a Lochneresque legal order preventing regulation, including environmental regulation. Search for "Takings Project." You can find some backing for this theory by looking at post-Kelo referendum campaigns in various states -- several of these tied eminent domain reform to bans on something called "regulatory takings."

Posted by Other Ezra | July 24, 2008 1:49 PM

Phaedrus: I suspect the law applies only to those conducting a business in those tasks - not those whose job is for a company which is in another sort of business. The law clearly wouldn't apply to sysadmins, and I think any attempt to apply it that way would be thrown out of court very quickly.

Posted by Richard Steven Hack | July 24, 2008 6:23 PM

As the attorney representing the computer repair shops and their customers, I wanted to quickly clarify some misinformation that's out there about this lawsuit. This lawsuit is not about hardware repairs. It is about data analysis – specifically data analysis that implicates the actions of a third party.

In an August 21, 2007 opinion, the Private Security Board states that anyone who produces a report that “describes the computer related activities of an employee” must possess a private investigator’s license (http://www.txdps.state.tx.us/psb/docs/psb_opin_sum.pdf). If you need a license to describe how an employee used a computer, presumably you also need one to describe how a spouse, child, or any other third party used it.

In a letter to a network security firm (which we have provided to the media), the Board states that tracing the identity of a network intruder also requires a private investigator’s license. Again, if you need a license to discover the identity of a network intruder, then you need one to discover the identity of a kid’s online chat buddy, too.

Finally, in a cease and desist letter the Board sent to the Best Buy Geek Squad in Houston (which we have also provided to the media), the Board says that a license is required to investigate “potential [not just actual] criminal or civil matters.” The letter was sent after an anonymous source ratted out the Geek Squad to the PSB.

The state has clearly and repeatedly said that the law applies to data analysis involving the actions of third parties. It has never said that the restriction is limited to pending litigation. The letters to the network security firm and to the Geek Squad did not involve pending lawsuits. Computer repair shops are constantly performing tasks that run afoul of the PSB's interpretation of the law, and so do many other members of the technology industry.

The PSB has been saying these threatening things -- through its rulemaking authority -- for months. The fact that employees of the PSB are now telling reporters something different only proves how bad the law is. Computer repair shops have good reason to be concerned.

Posted by M Miller | July 25, 2008 12:38 PM

Looks like "M Miller" settled it. If the state is targeting the Geek Squad guys, then the state employee quoted by bloix above is full of shit.

Posted by too many steves | July 25, 2008 12:48 PM