CFFP Tournament Updates #1

FCC Neg Updates

solvency

bad for industry

Can’t solve the tech sector advantage: empirics prove the FCC does not work in the favor of corporate interestsMandel (Michael, chief economic strategist at the Progressive Policy Institute in Washington, and specializes in data-driven economy, the impact of regulation on innovation, and policies to improve production, investment and job growth “More Regulatory Overreach at the FCC” April 7, 2011 https://innovationandgrowth.wordpress.com/2011/04/07/more-regulatory-overreach-at-the-fcc/ , cayla_)

Imagine that you had an industry where customer satisfaction was increasing faster than any other part of the economy. Now imagine that the same industry showed rising real investment, even during the worst recession in 75 years. Finally, imagine that industry charged falling prices for both consumers and businesses. But of course, that industry is not imaginary: The telecom industry, and in particular the wireless sector, has outperformed the rest of the economy on key measures such as customer satisfaction, investment, and price. Moreover, at a time when President Obama is calling for more innovation, the wireless industry has produced more genuine new products and services than anyone else. So given the great performance of the industry during this tough period, why the heck does the Federal Communications Commission keep imposing additional regulations on wireless providers? The latest case of regulatory overreach : On April 7, the FCC issued an order forcing the big wireless providers to sign ‘data-roaming’ agreements with smaller carriers. In effect, the smaller carriers can now tell their customers that they could have data service all over the U.S., free-riding on the mammoth investments by the big carriers. In addition, the FCC made it clear that it is willing to set the price for each data roaming agreement if it doesn’t like what the big carriers are offering–effectively reinstituting price regulation for the most dynamic sector of the economy. This aggressive regulatory move by the FCC follow its enactment of confusing ‘net neutrality regulations’ in December 2010, an 87-page order that raises more questions than it resolves. And then coming down the road is the ‘bill shock’ regulation. In order to address the rather rare and fixable problem of a surprisingly high bill, this regulation would force providers to spend scarce investment dollars on revamping their billing system rather than building out their networks. In many ways, enacting this series of regulations is like throwing pebbles in a stream. One pebble doesn’t make much of a difference, but throwing enough pebbles in the stream can dam it up. Frankly, the degree of regulation that the FCC wants to impose is more appropriate to a failing industry rather than one which is demonstrably successful and growing. Let’s just run through the performance of the telecom/wireless industry over the past five years. According to the American Customer Satisfaction Index, satisfaction with wireless service has increased by 14% over the past five years, by far the biggest jump of any industry. Now let’s look at investment. The data on investment is somewhat fuzzier than for satisfaction, since the government’s figures on industry investment only run through 2009, and merges the telecom and broadcasting industries. But here’s what we see: In the telecom/broadcasting industry, real investment in equipment and software is up 30% since 2005, despite the turbulence of the financial crisis. By contrast, overall private sector real investment in equipment and software is down 8% over the same period. And then of course the price of wireless service keeps falling. The latest figures from the Bureau of Labor Statistics say that consumer wireless prices are down 6% since 2011, and business wireless prices are down a lot

more. Right now the FCC has the good fortune to preside over one of the few growing industries in the economy. If the commissioners genuinely want to support innovation and growth, they should stop throwing regulatory pebbles into the stream.

The FCC has a horrible reputation: it’s been charged by Congress and the White House for inefficiencies, lack of guidelines, and no expertiseLarry Downes author of several books on technology and innovation. My new book, "Big Bang Disruption," co-authored with Paul F. Nunes, is now available. My earlier books include the New York Times best-seller, “Unleashing the Killer App" and "The Laws of Disruption." 7/15/2013 @ 9:34AM Reining In A Rogue FCC www.forbes.com/sites/larrydownes/2013/07/15/reining-in-a-rogue-fcc/2/

The fundamental problem for the FCC and other regulators, however, can be easily summed up. As technology disruption accelerates thanks to Moore’s Law and its equivalents in other industries, the ability of regulators

large and small to dictate the structure and operation of markets has become an impossible task. Against what economist Joseph Schumpeter called “the perennial gales of creative destruction,” regulators offer a whimper

and a whine. Even with the best of intentions, the pace of government simply can’t keep up with technology and the markets they create and recreate. Not that the regulators have no impact—just not the ones they expect. Efforts to micromanage the unmanageable and predict the unpredictable are increasingly leading to negative unintended side-effects that no one wants. They now make life more difficult for consumers—the precise opposite of the regulator’s intent, or in any case their charter and governing law. The FCC is tasked with ensuring access, promoting competition, and otherwise protecting the “public interest.” But its ham-fisted interventions often have the opposite effect.

Former FCC Commissioner Robert McDowell, who recently left the agency after seven years of exemplary service, minced

few words, telling the Committee he didn’t think process reform was enough. What’s needed, he said, was to start over, with a new Communications Act written for a post-Internet, all broadband world, where “consumers don’t know – or really care – if their data is transmitted over coaxial cable, fiber optics, copper or wireless platforms.” The hearing focused a great deal on the FCC’s expanding but formless review of mergers and other transfers of radio spectrum between mobile network operators. Under the Communications Act, the FCC cannot and does not approve the transfer of any license on the secondary market unless the parties can prove that the transaction serves the public interest. It isn’t clear what that was ever supposed to mean (the provision

goes back to 1934 and probably earlier), but in the last decade the FCC has given that power an expansive reading. It now conducts its own complete review of the underlying transaction, duplicating the effort of

the Department of Justice and the Federal Trade Commission, which must also sign off on mergers and acquisitions in the

communications industry. Except that the FCC , as all the witnesses at last week’s hearing agreed, has no expertise in antitrust, no guidelines, and no formal processes to conduct such reviews . They drag on for months or even years , giving competitors and their lobbyists the opportunity to attach pet projects and conditions aimed at hobbling competitors. In the end, between conditions imposed by the FCC and “voluntary” commitments forced out of the parties (often for promises the FCC could not legally impose on its own, because doing so would violate its governing law or the Constitution, or both), orders approving license transfers looks like a Christmas list. In the case of Comcast’s merger with NBC Universal, for example, there were over a hundred conditions, including requirements of what commercials the cable operator

needed to run, and on which channels and at what times. For a period of five years. The review of Sirius’s merger with XM took the FCC a year and a half, despite the fact that the two satellite radio providers together controlled only 5% of the audio market. The Department of Justice disposed of its review in only a few pages, noting that even if there were competitive problems, the growth of Internet services would provide more than adequate counterweights. As it clearly has. The only monopoly SiriusXM has is for Howard Stern. And it seems unlikely the FCC has any interest in seeing its long-time foe get any more airtime than he already has. The transaction review problems are epidemic, in part because there have been over a dozen significant license transfer deals just in the last few years. The irony here—one of many, really–is that the reason there are so many license

transfers going on in the mobile ecosystem is that the FCC has so badly botched its management of public radio spectrum in the first place. The spectrum map, as I’ve written in earlier posts, reflects 75 years of bad decisions, many of which can’t be undone without the FCC’s cooperation. For the first time in U.S. history, there is no significant available inventory of unassigned, usable spectrum, precipitating what the agency itself has called a “spectrum crisis.” With the closing of the spectrum frontier and exploding demand for mobile services, the only option network operators have is to look to secondary markets for more capacity. (They could also build more towers and attach more antennae to existing utility poles, but that

requires overcoming even more regulatory hurdles.) The FCC and the Department of Commerce have been charged by Congress and the White House, respectively, with solving the spectrum crisis. In 2010, the FCC was given new authority to try prying loose underutilized spectrum from over-the-air television broadcasters and then auctioning it to mobile carriers. The Department of Commerce has been tasked in two Presidential Memorandum with getting federal agencies, notably the Department of Defense, to give up some of the vast stockpiles of often unused spectrum it clings to, also for auction. Neither effort has made any real progress, and there are growing signs that the FCC auctions have run aground before they’ve even been designed. Federal license holders, meanwhile, have proven adept at changing the subject, promising to “share” its spectrum but then making clear that sharing can’t work. So it is the government itself that has created the problems that can only be solved—

poorly—by more mergers and spectrum transfers. The FCC compounds its sins by holding up the transactions, and then saddling them with unrelated and illegal conditions that last years beyond the time when the market will evolve beyond recognizable dimensions.

Corruption

Political operations of the FCC are marked by bribery and corruption often at the expense of public interests SkyVision Solutions 6/27 (raising public awareness and finding solutions for smart grid concerns related to invasions of privacy, data security, cyber threats, health and societal impacts “FCC: 'Prime Example of Institutional Corruption'” June 27, 2015 smartgridawareness.org/2015/06/27/fcc-prime-example-of-institutional-corruption/ , cayla_)

In a new publication just released from Harvard University, Norm Alster examines how the Federal Communications Commission (FCC) is dominated by the industries it presumably regulates. What follows are selected quotations which are organized in a way to effectively create a synopsis version of the original 59-page document. [1] “Consumer safety, health, and privacy, along with consumer wallets, have all been overlooked, sacrificed, or raided due to unchecked industry influence. ” [2] “The Federal Communications Commission sits at the heart of a bipartisan Washington web of institutional corruption that has for many years championed corporate interests, typically at public expense. Echoing industry, the FCC has ignored the growing evidence that wireless technologies pose serious health risks.” [3] “A troubling body of evidence suggests exposure to even low emission levels at typical cellular frequencies between 300 MHz and 3 GHz can have a wide range of negative effects.” “Just months ago, a German scientist who had been outspoken in denouncing the view that cell phones pose health risks reversed course. In an April 2015 publication, Alexander Lerchl reported results confirming previous research on the tumor-promoting effects of electromagnetic fields well below human exposure limits for mobile phones. ‘Our findings may help to understand the repeatedly reported increased incidences of brain tumors in heavy users of mobile phones,’ the Lerchl team concluded. And in May 2015, more than 200 scientists boasting over 2,000 publications on wireless effects called on global institutions to address the health risks posed by this technology.” [4] Industry Control of the Federal Communications Commission (FCC) [5] “ Industry controls the FCC through a soup-to-nuts stranglehold that extends from its well-placed campaign spending in Congress through its control of the FCC‘s Congressional oversight committees to its persistent agency lobbying . ‘If you‘re on a committee that regulates industry you‘ll be a major target for industry,’ said Twaun Samuel, chief of staff for Congresswoman Maxine Waters. Samuel several years ago helped write a bill aimed at slowing the revolving door. But with Congress getting its marching orders from industry, the bill never gained any traction. “Industry control, in the case of wireless health issues, extends beyond Congress and regulators to basic scientific research. And in an obvious echo of the hardball tactics of the tobacco industry, the wireless industry has backed up its economic and political power by stonewalling on public relations and bullying potential threats into submission with its huge standing army of lawyers.” Corruption at the Federal Communications Commission (FCC) [6] “As a captured agency, the FCC is a prime example of institutional corruption. Officials in such institutions do not need to receive envelopes bulging with cash. But even their most well-intentioned efforts are often overwhelmed by a system that favors powerful private influences, typically at the expense of public interest.” Note: “Captured agencies are essentially controlled by the industries they are supposed to

regulate.” “Perhaps the best example of how the FCC is tangled in a chain of corruption is the cell tower and antenna infrastructure that lies at the heart of the phenomenally successful wireless industry. It all begins with passage of the Telecommunications Act of 1996, legislation once described by South Dakota Republican senator Larry Pressler as “the most lobbied bill in history.’ … Specifically, [local governments] cannot cite health concerns about the effects of tower radiation to deny tower licenses so long as the towers comply with FCC regulations.” Captured Agency. Caption “The FCC‘s network of corruption doesn‘t just shield industry from needed scrutiny and regulation on matters of public health and safety. Sometimes it just puts its hand directly into the public pocket and redistributes that cash to industry supplicants.” “The General Accounting Office (GAO) has issued several reports citing fraud, waste and mismanagement, along with inadequate FCC oversight of the subsidy program. Bribery, kickbacks and false documentation can perhaps be expected in a handout program mandated by Congress and only indirectly supervised by the FCC. But the scope of fraud has been impressive. The most striking corruption has marred the E-Rate program, which subsidizes Internet hardware, software and service for schools and libraries, and the Lifeline cell phone subsidies.” “Where there is institutional corruption, there are often underlying dependencies that undermine the autonomy and integrity of that institution. Such is the case with the FCC and its broader network of institutional corruption.” “Temptation is everywhere in Washington, where moneyed lobbyists and industry representatives throw the best parties and dinners. Money also allows industry to control other important factors, like the research agenda. All of this works together to industry‘s advantage because — as with other instances of institutional corruption — there are compromising dependencies. Policy makers, political candidates and legislators, as well as scientific researchers are all compromised by their dependence on industry money.”

The FCC has empirically hindered the profit-driven industry: it’s ties with the executive has been unpopular with Republicans and Capitol HillForbes 3/24 (Trefis Team, American business magazine that features original articles on finance, industry, investing, and marketing topics “Republicans Question FCC's Net Neutrality Rules” 3/24/2015 www.forbes.com/sites/greatspeculations/2015/03/24/republicans-question-fccs-net-neutrality-law/ , cayla_)

FCC chairman Tom Wheeler is currently in the midst of a two week period during which he will testify on the net neutrality regulations in as many as five hearings on Capitol Hill. However, the republicans have launched a staunch opposition to these regulations. The Net neutrality vote within the FCC went 3-2 along party lines with Republican Commissioners Ajit Pai and Michael O’Rielly voting against it. The dissenting commissioners have led a month long campaign against the ruling with Pai commenting, “The Internet has become a powerful force for freedom, both at home and abroad. So it is sad to witness the FCC’s unprecedented attempt to replace that freedom with government control.” Other GOP representatives have also condemned the regulation as a significant overreach. Many believe that this order could potentially destroy market competition and bog down investment in Internet infrastructure. South Dakota Republican Senator John Thune has also been a vocal critic and he proposed a bill in January that would prohibit service providers from throttling Internet speeds or establishing prioritized fast lanes without reclassifying Internet as a public utility, checking the FCC overreach. The biggest concern of the critics is that the FCC now has the ability to control prices and limit business offerings according what it deems reasonable. Even though the FCC has promised to refrain from heavy handed tactics such as directly regulating prices, the

opposition believes that such a provision risks hurting the industry as a future commission might not share the current one’s approach . There are also allegations that the FCC was unduly and illegally swayed by political interference from the White House following President Obama’s call for the strictest regulation. This theory is lent credence by the fact that the rules were originally not so stringent but were tightened after Obama said he preferred tougher rules. The FCC chairman even acknowledged during a recent hearing that Obama’s statement was one of his influences during the rule-setting process. High speed Internet has remained the leading growth factor for companies such as Comcast and Time Warner Cable for quite some time now. There is a boom in demand for broadband in the U.S., due to a growing need for speed and connectivity. The use of multiple devices and the higher penetration of smartphones are also boosting the overall demand. On the other hand, pay-TV business has been on the decline for quite some time, continuously bleeding customers year after year as it concedes ground to alternative platforms such as Netflix and Hulu. In such a scenario, the companies have consistently raised subscription fees for their Internet services in order to compensate for the loss of revenue from the pay-TV business. If the FCC’s decision to regulate the Internet like a utility ultimately leads to the commission deciding the tariffs charged to the end user, the companies will lose their pricing power and will not be able to raise subscription fees. As the pay-TV revenues are already declining, a potential stagnation in the Internet revenues will be immensely damaging. This is the reason the Internet service providers support efforts in congress to dilute the rules and reign in the FCC.

In issues regarding the Internet and broadband program, the FCC has empirically maintained close ties with the White HouseHatch 11 (David, reporter for the Government Executive, a magazine distributed to senior executives in federal, state and local governments “Issa probes FCC's close ties to White House” March 25, 2011 www.govexec.com/federal-news/2011/03/issa-probes-fccs-close-ties-to-white-house/33615/ , cayla_)

House Oversight and Government Reform Committee Chairman Rep. Darrell Issa, R-Calif., wants to know if the White House is pulling the strings at the Federal Communications Commission, a supposedly independent agency. In a March 24 letter to FCC Chairman Julius Genachowski, Issa demands the details about frequent visits by agency brass to 1600 Pennsylvania Ave. The congressman is particularly concerned that the White House may be quietly playing a significant role in shaping Genachowski's controversial agenda -- which includes tough, new network-neutrality rules for the Internet. The agency's three Democrats approved the Internet regulations in December over the objections of the two GOP commissioners, Republican lawmakers, and some broadband companies. Genachowski visited the White House 81 times between January 2009 and November 2010, according to White House logs, Issa writes. This equals the number of visits by the secretaries of five other agencies during the same time period, he adds. But some of the visits occurred before Genachowski arrived at the FCC. He was nominated in March 2009 and sworn into office three months later. Eddie Lazarus, Genachowski's chief of staff, made roughly 60 trips to the White House during that period, Issa notes. Genachowski is a Harvard Law School buddy of President Obama, and served as a technology adviser for his presidential campaign. In his missive, Issa demands that the FCC provide a log of all meetings with the White House and

furnish any documents, including e-mails, that the agency shared with the White House on net-neutrality. The congressman also complains that Genachowski failed to adequately reply to his previous letters seeking details about the agency's close connections to the White House. A senior FCC official said in a written response that many of the meetings were related to the agency's creation of the nation's first National Broadband Plan, a ten-year technology blueprint released in March 2010.

financeLack of financial enforcement mechanisms hinder the FCC’s effectivenessHazlett 11 (Thomas W. Professor of Economics in the John E. Walker Department of Economics at Clemson University where he also directs the Information Economy Project “Economic Analysis at the Federal Communications Commission” DISCUSSION PAPER May 2011 RFF DP 11-23 Thomas W. Hazlett April 7, 2011 www.rff.org/RFF/Documents/RFF-DP-11-23.pdf , cayla_)

The Federal Communications Commission goes further, providing no location anywhere in the organizational structure devoted primarily to economic analysis. This includes 10 offices and 7 bureaus. While the Office of Strategic Plans and Policy Analysis (OSP) includes economists, it is primarily staffed by non-economists, has been traditionally headed by a noneconomist, and has been reshuffled (and renamed) by recent FCC Chairmen. There is a Chief Economist (CE) at the FCC, an academic visitor who serves a short-term (one-year or two-year) appointment made by the Commission Chair. This position does allow the FCC to receive professional economic advice, but of a very limited sort. Personnel can be assigned to assist the CE on an ad hoc basis, but there is no professional staff dedicated to serve under the direction of the CE. This, and the short duration of appointments, mitigate against long-term influence in rule makings that typically take many years to evolve. The second major driver of serious economic analysis in the antitrust agencies is found in the manner in which the institutional home for economists is well-integrated within the agency‘s administrative decision-making. Were an economists‘ office to be isolated, it would not only lose persuasiveness it would be likely to pursue research topics of little interest or importance to agency officials. An equilibrium might be reached in which economists pursued ―blue sky‖ inquiries, publishable in technical journals, while lawyers and other regulatory professionals supplied their own ―back of the envelope‖ economics when churning out agency rules. Only by actively participating in rule makings or litigation will agency economists learn about the analytical challenges confronting policymakers, meaning that the autonomy of economists cannot – for such an office to be effective – be complete. ―In 1973, when the Antitrust Division created the Economic Policy Office, they chose a functional form to give economists an independent voice, but tried to tie the Office more closely to [the] enforcement mission of the Antitrust Division, the CE. This, and the short duration of appointments, mitigate against long-term influence in rule makings that typically take many years to evolve.

no congressional powerThe Supreme Court’s Chevron decision under-limits the scope of FCC power, leading to lack of organization and transparency between Congress and the FCCCleland 1/2 (Scott, former Deputy U.S. Coordinator for International Communications & Information Policy, President of Precursor LLC, a research consultancy for Fortune 500 companies “Will FCC Grant Congress Legislative Deference?” 01/02/2015 dailycaller.com/2015/01/02/will-fcc-grant-congress-legislative-deference/ , cayla_)

Isn’t Congress due the same deference from the FCC that the FCC expects from the courts? Will the FCC defer to the new Congress for a reasonable period of time so it can pass consensus on net neutrality legislation? For the last year, ISPs have respected the FCC’s net neutrality rules, despite the FCC’s 2010 Open Internet Order being overturned by an appeals court last January. What irreparable harm would occur if the FCC deferred to Congress, the source of all its existing and future legal authority, for a reasonable period of time in order to resolve this issue most legitimately? A U.S. Supreme Court precedent called “Chevron Deference” is central to the FCC’s legal calculus of whether it can reclassify the Internet as a Title II telecommunications service for the implicit purpose of imposing a permanent zero-price on downstream Internet traffic. “Chevron” is the Supreme Court precedent that grants administrative agencies like the FCC deference in interpreting the law if “the intent of Congress is clear” and the “agency’s answer is based on a permissible construction of the statute.” Per a recent press report, Congress is working on introducing legislation to provide the FCC with the legal authority that the FCC says it needs to enforce net neutrality “rules of the road.” Apparently the proposal would be a straightforward compromise to settle this protracted and unnecessary controversy. Congress would create a new “Title X” that would put into law the net neutrality protections that President Obama publicly called for in November, and grant the FCC the authority to prevent ISP blocking of content, throttling of traffic, and “paid prioritization.” With this modern direct legal authority to preserve the open Internet, the FCC then would have no need to apply 1934 Title II, common carrier law to the Internet. Why is FCC legislative deference to Congress so important? The whole purpose of the Chevron Deference precedent is to ensure that both the courts and independent agencies like the FCC defer to the clear intent and language of Congress’ statutes. Chevron is all about enforcing the actual direct authority granted by Congress in law, and not having courts, or an independent agency like the FCC, try and effectively create new law absent Congress. The reality is that “net neutrality,” Internet “blocking,” “throttling” or “paid prioritization” are terms and concepts not found in archaic communications law. That is the core reason why the FCC’s attempts to effectively legislate new law and policy absent Congress were overturned by the courts in Comcast v. FCC and in Verizon v. FCC. Someday, the FCC will need Congress to update its authority for the Internet age. Why shouldn’t the FCC start working cooperatively with Congress now? The bottom line here is that everything that the FCC is and does ultimately comes from Congress. The FCC is an agency that is “independent” from the executive branch, but not independent of the legislative branch, its constitutional master, or the courts, its constitutional check and balance.

Currently there is a lack of oversight of the FCC which allows them to define the scope of its control at the expense of Congressional regulationsLyons 11 (Daniel A. associate professor at Boston College Law School who specializes in the areas of property, telecommunications and administrative law “Tethering the Administrative State: The Case against Chevron Deference for FCC Jurisdictional Claims” Reregulation & the Business Firm Symposium: Telecommunications 36 J. Corp. L. 825 (2010-2011) Page 823-825 http://heinonline.org/HOL/Page?handle=hein.journals/jcorl36&div=35&g_sent=1&collection=journals , cayla_)

The Federal Communications Commission (FCC) has seen a similar sea change in its regulation of the telecommunications industry. Since Julius Genachowski assumed the chairmanship in 2009, the number of open dockets at the Commission has ballooned to over three thousand. Among other innovations, the Commission has released an ambitious roadmap to reallocate the electromagnetic spectrum and has begun regulating services traditionally considered to be at the periphery of its authority, such as wireless data transmission. Perhaps most notably, it has fired the opening salvos in the battle for net neutrality, a high-profile, high-stakes rulemaking proceeding that would extend the Commission’s jurisdiction over broadband internet transmission. But unlike its counterparts at the SEC or Health and Human Services, the FCC has begun reregulating telecommunications without a clear congressional mandate. This distinction is important because the telecommunications world has changed dramatically since Congress last overhauled the Communications Act in 1996—an overhaul that was largely deregulatory in focus and intent. The Act provides little support for (and is arguably hostile to) the agency’s efforts to enact comprehensive regulation beyond its traditional core of broadcasting, cable, and telephone communication. Yet undaunted by this lack of a legislative rudder, the Commission has begun expanding its jurisdiction to develop the next generation of American telecommunications law. The Commission’s tendency toward aggrandizement is familiar to the old war horses of past telecommunications policy battles. When cable television emerged in the 1950s, the Commission recognized that it lacked authority to regulate this new technology under the Communications Act. But as this new technology flourished, the Commission used its ancillary authority to build a complex lattice of regulations governing the new industry, until the Supreme Court struck down certain regulations as beyond the agency’s statutory authority in 1979. Similarly, when the Commission determined that that the statutory framework governing telephones was unsuited to the competitive landscape of the late 1980s, it began to rewrite the Communications Act and guide the industry toward deregulation—only to see the Court strike down its aspirations as ultra vires. In each instance, the Court curbed the Commission’s attempts to adopt a complex regulatory scheme without a clear legislative mandate, which in turn prompted Congress to provide the agency with more explicit authority to meet the industry’s regulatory needs. Thus far, it appears that the Commission’s efforts to regulate broadband will meet a similar fate. This history, and the Commission’s current push toward reregulation, highlight an important but often ignored tension in modern administrative law. The Chevron doctrine generally requires courts to defer to an agency’s interpretation of ambiguous language in a statute that the agency administers. Chevron is premised on the assumption that agencies, not courts, should “fill any gap left . . . by Congress” in the agency’s organic statue. But agencies should not receive this deference regarding questions about the scope of the agency’s jurisdiction . In these cases, the agency is not merely filling a gap within a statutory

framework, but is instead defining the outer limits of that framework. There is a difference in kind between the policy question “what rules should govern broadband?” and the legal question “does the Communications Act allow the Commission to make rules governing broadband?” Court appropriately defer broadly to agency expertise when answering the former question, but should reserve the latter question for “the province . . . of the judicial department.”

Given status quo unclear jurisdiction of the FCC, the government can’t defer to the FCC for interpretationsAdler 12 (Jonathan H. American legal commentator and law professor at the Case Western Reserve University School of Law “City of Arlington v. FCC: Questioning an Agency's Authority to Determine Its Own Jurisdiction” Perspectives from FSF Scholars November 26, 2012 Vol. 7, No. 33 scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1623&context=faculty_publications , cayla_)

The primary reason courts should not confer Chevron deference to agency interpretations of statutes that define or limit an agency’s jurisdiction is implicit in the Chevron doctrine itself. The conferral of Chevron deference is premised upon the existence of agency jurisdiction. If there is no jurisdiction, there is no deference. So before a court can even consider whether an agency should receive deference for its statutory interpretation, it must first assure itself that agency jurisdiction exists. Put another way, the question of whether Congress has delegated authority to a federal agency – authority that may include the power to construe ambiguous statutory provisions – is prior to the question of whether a given agency interpretation may be due Chevron deference. One reason Congress delegates agencies the authority to interpret ambiguous statutory provisions is because federal agencies often have a degree of field-specific knowledge and expertise that Congress lacks. Officials at the Federal Communications Commission, for example, presumably know more about the details of communications policy than does the average member of Congress. The FCC employs economic and technical experts who specialize in the sorts of questions the FCC is tasked to address. Whatever comparative advantage federal agencies may have in addressing technical or policy questions within their bailiwick of expertise, agencies have no such comparative advantage on matters of jurisdiction. Courts, by contrast, are called upon to address jurisdictional questions all the time. Courts, not agencies, have the comparative advantage in resolving matters of jurisdiction. Whether Congress conferred jurisdiction to a given agency to address a particular concern is a matter of statutory interpretation of the sort courts are regularly required to address. Indeed, the Administrative Procedure Act itself tasks federal courts with the responsibility to decide “all relevant questions of law” and set aside those agency actions courts find to be “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.17 Granting Chevron deference to agency interpretations of their own jurisdiction also creates the risk of agency self-aggrandizement. As Cass Sunstein has observed, “In Anglo-American law, those limited by law are generally not empowered to decide on the meaning of the limitation.”18 The concern is that if an agency is entrusted with the authority to determine the scope of its own jurisdiction it may extend its authority beyond the limits Congress envisioned.19 Not only is it unlikely that Congress will delegate authority to an agency to determine the scope of its own authority without making such an intention

clear, the grant of such authority poses distinct risks given that agencies only exercise that authority which they have been delegated in the first place. Whether local land-use and zoning regulations unduly inhibit the placement of mobile service facilities may well be a question about which the FCC has substantial expertise. Yet whether Congress delegated the FCC authority to address this question is not. Questions of agency jurisdiction are legally and analytically antecedent to the question of whether a given agency interpretation is one to which Chevron deference is due. In City of Arlington the Supreme Court has the opportunity to clarify this point. There are good reasons for it to make clear that agencies should only receive Chevron deference when they are exercising that authority Congress has delegated, and they should not receive deference when facing the question of whether the agency has authority at all.

overreachThe FCC’s overreach and lack of expertise means they won’t work in the market’s interest—AT&T and T-Mobile merger provesNet Competition 5/4 (A forum with members including AT&T, The MD Chamber of Commerce, California Broadcasters Association, Cellular Telecommunications Association, Time Warner Cable, Comcast, US Telecom Association, Verizon Wireless, National Cable and Telecommunications Association, and Verizon, “The FCC’s Visible Hand Picked Job Losers in Blocking AT&T – T-Mobile” May 4th 2015www.netcompetition.org/antitrust/the-fccs-visible-hand-picked-job-losers-in-blocking-att-t-mobile , cayla_)

T-Mobile’s announcement of 1,900 job layoffs is an unfortunate real world consequence of the FCC overreaching its authority, breaking precedent, and disregarding FCC procedure in releasing an unapproved and biased staff report, in order to politically block the AT&T-T-Mobile merger just a few months ago. A pillar of the FCC’s political justification for blocking the AT&T-T-Mobile merger was that FCC staff did not believe the companies’ analysis of the effect on jobs with and without approval of the merger. The FCC rejected AT&T’s commitment to bring 5,000 call center jobs back to the U.S., if the merger was approved. In rejecting the merger and its job creating commitments and analysis, the FCC helped cause these particular 1,900 call center jobs to be lost at T-Mobile. That’s because the FCC staff, (who admit to not having no expertise in this area) claim to know better than an employer of over a quarter of a million people how new jobs are created in today’s marketplace. This sad example is emblematic of the FCC’s overreach in authority and expertise in order to try and pick winners and losers in the marketplace. Many at the FCC view the FCC’s public interest authority as a blank check grant of Government power — i.e. whatever three votes at the FCC say “the public interest” is at any given time — which is the gold standard in arbitrariness and capriciousness. This particular example could be the penultimate in arbitrary and capricious FCC behavior in that the so called “public interest test” effectively was applied by staff without any procedural authority or official authorization of a majority vote of the FCC. The FCC effectively blocked a $39b merger in part because FCC staff said the burden of proof was on the companies to prove the case on jobs. The FCC’s burden of proof standard is central to the FCC’s ability to abuse its power and act arbitrarily and capriciously. Under the U.S. Constitution and under all antitrust law at the DOJ and FTC, the burden of proof is on the government to prove a market transaction is harmful under due process that one is innocent until proven guilty. Not at the FCC under its public interest standard. This obsolete FCC public interest standard assumes a monopoly marketplace and that technology and businesses will harm consumers unless the FCC determines otherwise — in advance. In the FCC’s trampling of due process in handling the AT&T-T-Mobile merger, the FCC staff in effect assumed AT&T guilty until it proved itself innocent, and denied AT&T and T-Mobile its day in court. The FCC’s abuse of its political public interest standard spotlights that the FCC’s exercise of 80 year-old, pre-competition policy-era, public interest authority is obsolete. The notion that communications markets are monopolies where consumers have no competitive choice and the FCC must assert an all-powerful Federal command and control role over communications, and must adopt a “Mother-May-I?” stance in effectively duplicating the DOJ antitrust authority without any statutory to do so, is obsolete as well. In sum, if the FCC’s job analysis here was this off-base, what about the FCC staff’s other core public interest assumptions? The FCC continues to self-servingly misinterpret what promoting competition is all about. It is not

about ignoring the “invisible hand’ of market forces and asserting the all-knowing FCC “visible hand” to pick market winners and losers. Market competition is driven ultimately by economics, profit, and return on investment. Competition can’t flourish when the FCC applies uneconomic assumptions, discourages private investment, and creates market uncertainty with unnecessary arbitrary and capricious regulatory behavior.

Both parties are skeptical of FCC’s overreaching regulationsNagesh 14 (Gautham, covers the FCC and tech policy from the Washington, D.C. Bureau of The Wall Street Journal “House Republicans Say FCC Net Neutrality Laws Are Unnecessary, Overreach” June 20, 2014 www.wsj.com/articles/house-republicans-say-fcc-net-neutrality-laws-are-unnecessary-overreach-1403293782 , cayla_)

The government should rely on existing antitrust laws rather than imposing new regulations on how broadband companies treat traffic on their networks, House Republicans said Friday at a hearing on the Federal Communications Commission's proposed net neutrality rules. Many Republicans have been skeptical of the FCC plan to enforce net neutrality—the principle that broadband providers should treat all content and services traveling over their networks equally—saying it is a solution in search of a problem. FCC Chairman Tom Wheeler is seeking input on the proposed rules, which leave the door open for broadband providers to charge content companies for preferential access to consumers. Democrats have argued that such deals would inherently put smaller companies and startups that can't afford to pay at a disadvantage. The rules would rely on regulatory enforcement by the FCC to determine whether such deals are "commercially reasonable." The FCC wrote the new rules after a federal court struck down the FCC's previous rules for the second time in January. Republicans argue that such regulations are an overreach, and unnecessary to boot. House Judiciary Committee Chairman Bob Goodlatte (R., Va.) said he is deeply skeptical of the notion that new rules are needed to protect online innovation, and believes "vigorous application of the antitrust laws can prevent dominant Internet service providers from discriminating against competitors' content or engaging in anticompetitive pricing practices." "In my experience, regulation generally stifles rather than facilitates competition and innovation. In fact, it is my belief that the Internet has flourished precisely because it is a deregulated market," Mr. Goodlatte said at the hearing, convened by the Judiciary Subcommittee on Antitrust.

Past attempts to extend FCC’s oversight of the internet was met with congressional backlashKasperowicz (Pete, senior editor at the Washinton Examiner who reports on Congress and the White House for TheBlaze and The Hill and spent a decade covering international trade at Inside U.S. Trade as a reporter and editor “GOP bill would block FCC’s effort to regulate the Internet” Mar. 4, 2015 www.theblaze.com/blog/2015/03/04/gop-bill-would-block-fccs-effort-to-regulate-the-internet/# , cayla_)

Less than a week after the Federal Communications Commission voted to regulate the Internet, 20 House Republicans have proposed a bill to block the FCC rule. Rep. Marsha Blackburn (R-Tenn.) proposed the legislation, which would explicitly ban the FCC from reclassifying Internet serve as a telecommunications service that can be regulated, and also block the FCC from imposing rules on Internet service providers. Blackburn was among the many GOP members who opposed the FCC’s “net neutrality” rule, which supporters say will prevent providers from prioritizing some Internet pages over others. Most Republicans say the rule would only add government shackles to an Internet that has clearly flourished without any significant government regulation, and could lead to political decisions about content. Many Republicans also complained that the rule had not been seen by the public before the FCC vote, which led many to say Democrats were selling the huge, unseen rule the way they sold Obamacare. “Once the federal government establishes a foothold into managing how Internet service providers run their networks they will essentially be deciding which content goes first, second, third, or not at all,” she said Wednesday. “My legislation will put the brakes on this FCC overreach and protect our innovators from these job-killing regulations.” Blackburn’s bill has a good chance of being considered, as key House and Senate leaders vowed last week that Congress would have a say over the FCC’s decision. “[L]ike Obamacare, the Obama administration’s plan for the Internet may not work, but it will create years of uncertainty and lead to expensive legal fights,” House Speaker John Boehner (R-Ohio) said last week. More mandates and regulations on American innovation and entrepreneurship are not the answer, and that’s why Republicans will continue our efforts to stop this misguided scheme.”

The FCC is already facing stiff legal challenges in its current programsSzoka and Hurwitz 7/01 (Berin and Gus, President of TechFreedom and previously the Senior Fellow an d the Director of the Center for Internet Freedom at The Progress & Freedom Foundation ; professor of law at the University of Nebraska—Lincoln “Supreme Court checks agency overreach, signaling trouble for FCC” July 01, 2015 thehill.com/blogs/congress-blog/technology/246587-supreme-court-checks-agency-overreach-signaling-trouble-for , cayla_)

While gay marriage and ObamaCare are drawing public attention at the end of this Supreme Court term, a less-noticed decision may prove to be just as important for the power of regulators. The court’s opinion in Michigan v. EPA brings major regulatory decisions under new scrutiny. Among the first on the cutting board will likely be the Federal Communications Commission’s attempt to regulate the Internet in the name of net neutrality. On Monday, the court struck down a rule governing power plant emissions because the Environmental Protection Agency ignored the costs and benefits of the rule — even its own estimates showed direct costs far outweighing direct benefits. Congress had ordered the EPA to regulate only when “appropriate and necessary,” which the EPA argued didn’t require cost-benefit analysis. The five conservatives on the high court disagreed, finding that “read fairly and in context… the term [appropriate and necessary] plainly subsumes consideration of cost.” In so doing the court was careful to distinguish regulatory decisions made under any standard “that on its face does not include cost.” But when Congress uses broad language, Michigan requires regulators to weigh the cost of regulation. Failure to do so is reason to strike down an agency’s decisions. This should fundamentally change the operations of the FCC. Its statute repeatedly requires the FCC to act in the “public interest, convenience, and necessity.” Historically, the agency has

received broad deference as to what this term means, and so hasn’t had to offer much justification for its decisions. (Its frequent losses in court are usually on procedural, not substantive, grounds.) In practice, the “public interest” has meant whatever three FCC commissioners say it means. But it’s hard to see how, after Monday’s decision, the FCC can make decisions without weighing the costs of the decision against other options — including the alternative of doing nothing. Regulatory humility, in short, will now be more than a slogan. The FCC is already facing a stiff legal challenge to the Open Internet Order it issued in March. Broadband providers are focusing their legal challenge on the FCC’s decision to “reclassify” them under traditional telephone regulations (“Title II” of the 1934 Communications Act). But the Michigan decision suggests the FCC would have a hard time just defending net neutrality rules themselves. The decade-long debate over “net neutrality” has turned largely on the costs of translating that feel-good abstraction into regulations. Yet in both 2010 and 2014, the FCC’s chairman refused calls from the senior Republican commissioner for independent cost-benefit analysis by economists. This is unsurprising: There’s overwhelming evidence that a lack of such regulation has had positive economic impact — and plenty of evidence that imposing rules now will be harmful. Rather than analyzing these trade-offs, the order includes only two paragraphs of cursory discussion of the new rules’ potential costs — a far cry from what Michigan seems to require. To the extent it addresses costs, the order simply insists they’re eliminated by its grant of broad “forbearance” from most of Title II. But the statute only authorizes forbearance from sections of the Communications Act “not necessary” to protect consumers and when forbearance is in the “public interest.” On both counts, Michigan would seem to require meaningful cost-benefit analysis. More generally, Michigan also signals that court is trying to check regulators’ discretion under the Supreme Court’s 1984 Chevron decision. At the outset, the court reiterates that “agencies must operate within the bounds of reasonable interpretation,” quoting from its decision last year in UARG v. EPA. There, the court blocked the EPA’s effort to “modernize” the Clean Air Act, explaining that “the need to rewrite clear provisions of the statute should have alerted EPA that it had taken a wrong interpretive turn.” The underlying concern in both Supreme Court decisions is, as Justice Clarence Thomas writes in his concurrence, that the agency is claiming “the power to decide — without any particular fidelity to the text — which policy goals [it] wishes to pursue.” That same concern lies at the heart of challenges to the Open Internet Order. Should the Supreme Court hear the case, it will likely rule that the FCC’s need to ignore regulatory costs and to rely on forbearance to “tailor” away the otherwise unreasonable burdens of Title II should have alerted the agency that its interpretation of the statute lies was unreasonable.

GAO CP

AT: Expertise (Solvency Deficit)

FCC Politics Links

Congress Hates FCCPlan causes congressional backlashRearden 15 (Marguerite Reardon is a CNET News reporter covering cell phone services, broadband, citywide Wi-Fi, the Net neutrality debate, “Republican FCC commissioners: Net neutrality plan misleads the American people,” 2/10/15, Date Accessed:

7/26/15, http://www.cnet.com/news/republican-fcc-commissioners-net-neutrality-plan-misleads-the-american-people/, sabz)

Republicans aren't happy with the Federal Communications Commission's plan to regulate the Internet like telephone service, and they're going out of their way to make sure people know it. The latest broadside comes from within the FCC itself, with Republican commissioner Ajit Pai using a press conference Tuesday to lay into Chairman Tom Wheeler's proposal on Net neutrality, or the idea that all Internet traffic should be treated equally. Pai argues that the proposed new regulations

would give the government too much power over the Internet. "The American people are being misled about President Obama's plan to regulate the Internet," Pai said, suggesting that the White House exerted undue influence over the agency. Michael O'Rielly, the only other Republican commissioner on the five-member FCC, echoed Pai's statement, adding that the information the FCC has offered publicly about its Net neutrality proposal is not the full truth. The comments by Pai and O'Rielly are part of an increasingly vocal attack on the FCC's proposal, an attack that includes questions about whether President Barack Obama pushed his own beliefs onto the independent agency. The opposition stems from the fear that added regulation will result in higher broadband prices for consumers and strip incentives for broadband companies to invest in upgrading their networks. The moves signify a last-ditch effort by Republicans to stop the FCC from adopting Net neutrality rules.

While nearly everyone agrees that some rules are needed to protect the Internet, they don't agree on the legal basis for making these rules. At the crux of the current debate is Title II, a provision that reclassifies broadband as a telecommunications service that falls under telephone-like regulations. Obama, most Democrats and Wheeler favor Title II, while Republicans and broadband providers like Comcast and Verizon are vehemently

against it. It's highly likely that the proposal will make it through the FCC. Republicans on the commission and in Congress will continue making noise until the FCC's final vote on February 26.

But Wheeler, a Democrat appointed by Obama, has the three Democratic votes needed to pass the measure. Congress could push through new legislation it has been working on as an alternative, but Obama could veto the law.

Congress dislikes the plan – Obama will have to use PC to push planFung and Scola 14 (Brian Fung covers technology for The Washington Post, focusing on telecommunications and the Internet and Nancy Scola is a reporter who covers the intersections of technology and public policy, politics, and governance, “Obama’s call for an open Internet puts him at odds with regulators,” 11/11/14, Date Accessed: 7/26/15,

https://www.washingtonpost.com/blogs/the-switch/wp/2014/11/11/the-fcc-weighs-breaking-with-obama-over-the-future-of-the-internet/, sabz)

Obama also saw a more immediate opportunity to retake the political high ground from Republicans, according to a Democratic congressional aide. Should GOP lawmakers vote to overturn any protections enacted by the FCC, a presidential veto would put Obama on the side of millions of consumers who have called on the FCC to adopt strong regulations. “I see him almost salivating over a congressional fight, or a fight with the carriers, over this issue,” said the aide, who spoke on the condition of anonymity because he is not authorized to talk on the record. “This is a populist issue he thinks he can win on.” The president’s statement galvanized supporters of net neutrality. Sens. Elizabeth Warren (D-Mass.), Tom Udall (D-N.M.) and John D. Rockefeller IV (D-W.Va.) quickly issued statements calling on the FCC to move quickly to implement the president’s plan. “The president set a solid target out there,” said Evan Engstrom, policy director for Engine Advocacy, which represents tech start-ups. But the move puts Wheeler in an uncomfortable position. Wheeler worries that the president’s more drastic approach is too simplistic, according to people familiar with his thinking. With his long experience in the telecommunications industry, Wheeler is well aware of concerns that ill-considered regulations could stifle innovation and slow the growth of the country’s broadband infrastructure, those people said. And he worries that the White House is being naive about the ripple effects of changing how a major piece of national infrastructure is governed. One telecom industry lobbyist was sympathetic to Wheeler’s position: “I don’t

think anybody goes into the FCC saying, ‘I want to be at the center of drama.’ But they seem to find themselves there frequently.” Behind closed doors, Wheeler has fretted about how Republicans on Capitol Hill would react to far-reaching net neutrality rules, according to people familiar with his deliberations. Already on Monday, the Senate Republican leadership dismissed Obama’s plan

as “last century’s rules.” Obama would probably veto an attempt by Republicans to roll back any FCC rules. But Congress could hamstring the FCC by withholding funding on other, lower-profile issues, and it could put Wheeler in the hot seat during congressional hearings or as the target of lengthy investigations.

Obama Supports NSAObama supports NSA mass surveillance

Johnson 13 (Luke Johnson is a Politics Reporter in Washington, D.C., “Obama Defends NSA Programs, Says Congress Knew About Surveillance,” 6/7/13, Date Accessed: 7/28/15, http://www.huffingtonpost.com/2013/06/07/obama-nsa_n_3403389.html, sabz)

WASHINGTON -- President Barack Obama on Friday forcefully defended revelations that the National Security

Agency is collecting phone records and electronic communications, saying that Congress was fully briefed and the programs are limited in scope. "The programs are secret in the sense that they are classified. They are not secret, in that every member of Congress has been briefed," he said during a speech in San Jose,

Calif. "These are programs that have been authored by large bipartisan majorities repeatedly since 2006." "Your duly elected representatives have consistently been informed," he said. News outlets revealed this week that

vast spying programs began under President George W. Bush and have continued under Obama. The Guardian reported Wednesday that the National Security Agency had obtained a court order to collect phone records from Verizon Wireless customers, while The Washington Post reported Thursday of the existence of a program launched in 2007 called PRISM, which tracks information from nine leading U.S. Internet companies: Microsoft, Yahoo, Google, Facebook, AOL,

YouTube, Apple, PalTalk and Skype. In response to a question after his speech, Obama defended the programs as essential to combating terrorist threats. "They may identify potential leads with respect to folks who might engage in terrorism," he said. He also argued that some have overstated the impact of the programs. "Some of the hype we've been hearing over the past day or so -- nobody has listened to the content of people's phone calls," he said. "I welcome this debate and I think it's healthy for our democracy," he continued. "I think it's a sign of maturity, because probably five years ago,

six years ago, we might not have been having this debate." Obama portrayed the programs as a trade-off between security and civil liberties. "I think it's important to recognize that you can't have 100 percent security, and also then have 100 percent privacy and zero inconvenience. We're going to have to make some choices as a society," he said.

Rights Bad Updates

Rights Malthus

Suveillance Key

Transition to authoritarianism coming now due to surveillance – its critical to limit rights that contribute to energy use and pollution

Rappaport 14(Jon Rappoport ,Jon was a candidate for a US Congressional seat in the 29th District of California. Nominated for a Pulitzer Prize, he has worked as an investigative reporter for 30 years, writing articles on politics, medicine, and health for CBS Healthwatch, LA Weekly, Jon has delivered lectures and seminars on global politics, health, logic, and creative power to audiences around the world, “Final Goal of the Surveillance State,” 3/11, pg online @ http://governamerica.com/news/9939-final-goal-of-the-surveillance-state)

Surveillance is coming at us from all angles. Chips, drones, TSA checkpoints, smart meters, back-doored electronic products, video cameras, spying home appliances; our phone calls and emails and keystrokes and product purchases are recorded. The government and its allied corporations will know whatever they want to know about us. What then? What happens

when all nations are blanketed from stem to stern with surveillance? Public utilities, acting on government orders, will be able to allot electricity in amounts and at times it wishes to. This is leading to an overarching plan for energy distribution to the entire population. Claiming shortages and limited options, governments will essentially be redistributing wealth, in the form of energy , under a collectivist model.

Authoritarianism coming now – resisting surveillance and Obama’s exercise of executive power key

Turley 12(Jonathan, is the Shapiro professor of public interest law at George Washington University.“10 Reasons The U.S. Is No Longer The Land Of The Free,” pg online @ http://jonathanturley.org/2012/01/15/10-reasons-the-u-s-is-no-longer-the-land-of-the-free/ //um-ef)

Below is today’s column in the Sunday Washington Post. The column addresses how the continued rollbacks on civil liberties in the United States conflicts with the view of the country as the land of the free. If we are going to adopt Chinese legal principles, we should at least have the integrity to adopt one Chinese proverb: “The beginning of wisdom is to call things by their right names.” We seem as a country to be in denial as to the implications of these laws and policies. Whether we are viewed as a free country with authoritarian inclinations or an authoritarian nation with free aspirations (or some other hybrid definition), we are clearly not what we once were. [Update: in addition to the column below, a later column in the Washington Post explores more closely the loss of free speech rights in the West]. Every year, the State Department issues reports on individual rights in other countries, monitoring the passage of restrictive laws and regulations around the world. Iran, for example, has been criticized for

denying fair public trials and limiting privacy, while Russia has been taken to task for undermining due process. Other countries have been condemned for the use of secret evidence and torture. Even as we pass judgment on countries we consider unfree, Americans remain confident that any definition of a free nation must include their own — the land of free. Yet, the laws and practices of the land should shake that confidence. In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state. The most recent example of this was the National Defense Authorization Act, signed Dec. 31, which allows for the indefinite detention of citizens. At what point does the reduction of individual rights in our country change how we define ourselves? While each new national security power Washington has embraced was controversial when enacted, they are often discussed in isolation. But they don’t operate in isolation. They form a mosaic of powers under which our country could be considered, at least in part, authoritarian. Americans often proclaim our nation as a symbol of freedom to the world while dismissing nations such as Cuba and China as categorically unfree. Yet, objectively, we may be only half right. Those countries do lack basic individual rights such as due process, placing them outside any reasonable definition of “free,” but the United States now has much more in common with such regimes than anyone may like to admit.

These countries also have constitutions that purport to guarantee freedoms and rights. But their governments have broad discretion in denying those rights and few real avenues for challenges by citizens — precisely the problem with the new laws in this country.

The list of powers acquired by the U.S. government since 9/11 puts us in rather troubling company. Assassination of U.S. citizens President Obama has claimed, as President George W. Bush did before him, the right to order the killing of any citizen considered a terrorist or an abettor of terrorism. Last year, he approved the killing of U.S. citizen Anwar al-Awlaqi and another citizen under this claimed inherent authority. Last month, administration officials affirmed that power, stating that the president can order the assassination of any citizen whom he considers allied with terrorists. (Nations such as Nigeria, Iran and Syria have been routinely criticized for extrajudicial killings of enemies of the state.) Indefinite detention Under the law signed last month, terrorism suspects are to be held by the military; the president also has the authority to indefinitely detain citizens accused of terrorism. While Sen. Carl Levin insisted the bill followed existing law “whatever the law is,” the Senate specifically rejected an amendment that would exempt citizens and the Administration has opposed efforts to challenge such authority in federal court. The Administration continues to claim the right to strip citizens of legal protections based on its sole discretion. (China recently codified a more limited detention law for its citizens, while countries such as Cambodia have been singled out by the United States for “prolonged detention.”) Arbitrary justice The president now decides whether a person will receive a trial in the federal courts or in a military tribunal, a system that has been ridiculed around the world for lacking basic due process protections. Bush claimed this authority in 2001, and Obama has continued the practice. (Egypt and China have been denounced for maintaining separate military justice systems for selected defendants, including civilians.) Warrantless searches The president may now order warrantless surveillance, including a new capability to force companies and organizations to turn over information on citizens’ finances, communications and associations. Bush acquired this sweeping power under the Patriot Act in 2001, and in 2011, Obama extended the power, including searches of everything from business documents to library records. The government can use “national security letters” to demand, without probable cause, that organizations turn over information on citizens — and order them not to reveal the disclosure to the affected party. (Saudi Arabia and Pakistan operate under laws that allow the government to engage in widespread discretionary surveillance.) Secret evidence The government now routinely uses secret evidence to detain individuals and employs secret evidence in federal and military courts. It also forces the dismissal of cases against the United States by simply filing declarations that the cases would make the government reveal classified information that would harm national security — a claim made in a variety of privacy lawsuits and largely accepted by federal judges without question. Even legal opinions, cited as the basis for the government’s actions under the Bush and Obama administrations, have been classified. This allows the government to claim secret legal arguments to support secret proceedings using secret evidence. In addition, some cases never make it to court at all. The federal courts routinely deny constitutional challenges to policies and programs under a narrow definition of standing to bring a case. War crimes The world clamored for prosecutions of those responsible for waterboarding terrorism suspects during the Bush administration, but the Obama administration said in 2009 that it would not allow CIA employees to be investigated or prosecuted for such actions. This gutted not just treaty obligations but the Nuremberg principles of international law. When courts in countries such as Spain moved to investigate Bush officials for war crimes, the Obama administration reportedly urged foreign officials not to allow such cases to proceed, despite the fact that the United States has long claimed the same authority with regard to alleged war criminals in other countries. (Various nations have resisted investigations of officials accused of war crimes and torture. Some, such as Serbia and Chile, eventually relented to comply with international law; countries that have denied independent investigations include Iran, Syria and China.) Secret court The government has increased its use of the secret Foreign Intelligence Surveillance Court, which has expanded its secret warrants to include individuals deemed to be aiding or abetting hostile foreign governments or organizations. In 2011, Obama renewed these powers, including allowing secret searches of individuals who are not part of an identifiable terrorist group. The administration has asserted the right to ignore congressional limits on such surveillance. (Pakistan places national security surveillance under the unchecked powers of the military or intelligence services.) Immunity from judicial review Like the Bush administration, the Obama administration has successfully pushed for immunity for companies that assist in warrantless surveillance of citizens, blocking the ability of citizens to challenge the violation of privacy. (Similarly,

China has maintained sweeping immunity claims both inside and outside the country and routinely blocks lawsuits against private companies.) Continual monitoring of citizens The Obama administration has successfully defended its claim that it can use GPS devices to monitor every move of targeted citizens without securing any court order or review. It is not defending the power before the Supreme Court — a

power described by Justice Anthony Kennedy as “Orwellian.” (Saudi Arabia has installed massive public surveillance systems, while Cuba is notorious for active monitoring of selected citizens.) Extraordinary renditions The government now has the ability to transfer both citizens and noncitizens to another country under a system known as extraordinary rendition, which has been denounced as using other countries, such as Syria, Saudi Arabia, Egypt and Pakistan, to torture suspects. The Obama administration says it is not continuing the abuses of this practice under Bush, but it insists on the unfettered right to order such transfers — including the possible transfer of U.S. citizens. These new laws have come with an infusion of money into an expanded security system on the state and federal levels, including more public surveillance

cameras, tens of thousands of security personnel and a massive expansion of a terrorist-chasing bureaucracy. Some politicians shrug and say these increased powers are merely a response to the times we live in. Thus, Sen. Lindsey Graham (R-S.C.) could declare in an interview last spring without objection that “free speech is a great idea, but we’re in a war.” Of course, terrorism will never “surrender” and end this particular “war.” Other politicians rationalize that, while such powers may exist, it really comes down to how they are used. This is a common response by liberals who cannot bring themselves to denounce Obama as they did Bush. Sen. Carl Levin (D-Mich.), for instance, has insisted that Congress is not

making any decision on indefinite detention: “That is a decision which we leave where it belongs — in the executive branch.” And in a signing statement with the defense authorization bill, Obama said he does not intend to use the latest power to indefinitely imprison citizens. Yet, he still accepted the power as a sort of regretful autocrat. An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will. The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.” Benjamin Franklin was more direct. In 1787, a Mrs. Powel confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got — a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.” Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely. The indefinite-detention provision in the defense authorization bill seemed to many civil libertarians like a betrayal by Obama. While the president had promised to veto the law over that provision, Levin, a sponsor of the bill, disclosed on the Senate floor that it was in fact the White House that

approved the removal of any exception for citizens from indefinite detention. Dishonesty from politicians is nothing new for Americans. The real question is whether we are lying to ourselves when we call this country the land of the free.

H/Rights Promo D.A.

Russia Link

And, changes in U.S. counter-terror policies that undermine HR cred has a DIRECT EFFECT on U.S. Russia policy – re-building credibility allows Obama to push Putin and hurts his popularity

Mendelson 9

(Sarah, Senior Fellow in the Russia and Eurasia Program – Center for Strategic and International Studies, “U.S.-Russia Relations and the Democracy and Rule of Law Deficit”, pg online @ http://www.tcf.org/assets/downloads/tcf-russiarelations.pdf //um-ef)

In fact, coping with authoritarian trends in Russia (and elsewhere) will involve changes in U.S. policies that have, on the surface, nothing to do with Russia . Bush administration counterterrorism policies

that authorized torture, indefinite detention of terrorist suspects, and the rendering of detainees to secret prisons and Guantánamo have had numerous negative unintended consequences for U.S. national security, including serving as a recruitment tool for al Qaeda and insurgents in Iraq.4

Less often recognized, these policies also have undercut whatever leverage the United States had , as

well as limited the effectiveness of American decision-makers, to push back on authoritarian policies adopted by, among

others, the Putin administration. At its worst, American departures from the rule of law may have enabled abuse inside Russia. These departures certainly left human rights defenders isolated.5

Repairing the damage to U.S. soft power and reversing the departure from human rights norms that characterized the Bush administration’s counterterrorism policies will provide the Obama administration strategic and moral authority and improve the ability of the United States to work with allies. It also can have positive c onsequences for Obama’s Russia policy . The changes that need to be made in U.S. counterterrorism policies, however politically

sensitive, are somewhat more straightforward than the adjustments that must be made to respond to the complex issues concerning Russia. The Obama administration must determine how best to engage Russian leaders and the population on issues of importance to the United States, given

Russia’s poor governance structures, the stark drop in oil prices, Russia’s continued aspirations for great power status , and the rather serious resentment by Russians concerning American dominance and prior policies. The policy puzzle, therefore, is how to do all this without, at the same time, sacrificing our values and undercutting (yet again) U.S. soft power. This report assesses the political dynamics that have shaped Russia’s authoritarian drift, briefly addresses a few of the ways in which they matter for U.S. policy, and suggests several organizing principles to help the Obama administration manage this critical relationship. Possible approaches include working closely with Europe on a joint approach to Russia, accurately anticipating the unintended consequences of U.S. policy in one realm (such as Kosovo) for Russia policy, and embracing the rights of states to choose their own security alliances. A final important principle relates to U.S. engagement with Russians beyond the Kremlin. President Obama should speak directly to the Russian people, engaging in a manner that respects their interests and desires, but also reflects the core values of the Obama administration; that is, “reject[s] as false the choice between our safety and our ideals.”6 The Obama administration also should endorse a platform and a process for a renewed dialogue between U.S. and Russian civil society. The View from the Kremlin Two interactive dynamics over the past several years have shaped the dominant approach by the Russian government to the outside world: the United States declined as a world power, and at the same time, the Russian state accumulated massive wealth from high gas and oil prices. Following what many in the Russian elite view as the “humiliation” of the 1990s, by 2008, Russia was no longer a status quo power. Instead, revisionist in nature, Russian authorities focused on the restoration of great power status.7 Fueled by petrodollars, the government tackled this project in numerous ways, including military exercises around the globe, soft power projects such as a twenty-four-hour-a-day English language cable news station, “think tanks” in New York and Paris, and perhaps most important, gas and oil distribution systems meant to make Russia a central player in energy security for decades to come.8 This restoration project undoubtedly will be slowed by the current financial crisis and drop in oil revenues, but the building blocks remain in place. As the restoration project evolved, the Putin administration increasingly challenged aspects of the post–World War II and post–cold war legal, security, and economic architecture, and suggested the need for new arrangements. Many in the Russian elite seemed to view the changes that have occurred in Europe over the past twenty years, such as the enlargement of the North Atlantic Treaty Organization (NATO) and the European Union (EU), as illegitimate, driven not by the choices of local

governments or populations, but by the will of Washington. Nostalgia for the Soviet era, a related sentiment, is widely shared, and is an important source of former president and now Prime Minister Vladimir Putin’s popularity.9 Some experts even suggest that many in Russia’s governing structures believe that Europe whole and free—that is, post–cold war Europe—is not in the security interest of Russia. The Carnegie Moscow Center’s Lilya Shevtsova has labeled this view “great power nationalism” and observes that the “Putin-Medvedev-Lavrov doctrine” derives from the premise that Russia seeks to contain the West—while the West is busy trying not to offend Russia.10 Some other studies suggest that Russian policymakers have attempted, in fact, to divide the United States from Europe, and generally have preferred bilateral to multilateral engagement.11 At the United Nations, Russia, together with China, repeatedly has challenged international responses to gross human rights violations in Burma, Darfur, and Zimbabwe, and it has engaged in systematic efforts to undermine the Organization for Security and Co-operation in Europe’s (OSCE) election monitoring efforts and the Council of Europe’s human rights monitoring.12 Meanwhile, Russian leaders seem to believe the current European security arrangements are soft commitments, ripe for renegotiation and restructuring. President Dmitri Medvedev has, in fact, called for a new “collective security

arrangement,” at the same time reintroducing the concept of spheres of influence.13 All of these actions taken together, along with the decline in U.S. soft power, have looked at times as if some in the Russian government were trying to reset the table on human rights and international law, exporting its democracy and rule of law deficit abroad. How best can the United States, together with Europe, respond to this situation? Two additional dynamics are relevant: Russian internal weaknesses, both political and economic, but also the degree to which the Russian authorities’ assessment of the condition of the international system is correct. For example, in August 2008, Russian government officials fecklessly deployed human rights and international law rhetoric to justify the Russian use of force in South Ossetia—was that just a murky reflection of the current deeply

inconsistent international order?14 Will that calculation be challenged by the Obama administration? How can it do so effectively? Will we see a new era of more robust international organizations, underpinned by respect for human rights and international law? If not, will we be in for a period of serious instability in Europe, along Russia’s borders?

Plan = HR PromoSchulz 8

(William F., Senior Fellow – Center for American Progress, Adjunct Professor of International Relations – The New School, Former Executive Direction – Amnesty International, “Introduction,” The Future of Human Rights: U.S. Policy for a New Era, p. 11-14)

Respect for human rights and the processes by which they are fashioned is one of the best ways to win global friends and influence the passions of people. And whether we think the source of human rights is God, natural law, or

consensualism, an international imprimatur lends legitimacy to our pursuit of them. As a study by the Princeton Project on National Security noted recently, "Liberty under law within nations is inextricably linked with a stable system of liberty under law among them. " 40 Surely even Condoleezza Rice who, during the 2000 presidential campaign, wrote that "foreign policy in a Republican administration ... will proceed from the firm ground of the national interest, not the interests of an illusory international community [emphasis

added] " 41 has come to rue the day she thought the world community no more than a chimera. Repairing the Damage The damaging effect of

neoconservative policies on human rights goes well beyond reinforcement of the suspicion that American advocacy of human rights is a mere cover for an imperialist agenda.

Those policies have undermined the notion that spreading human rights and democracy around the globe are viable goals of U.S. foreign policy. They have weakened international institutions upon which human rights depend . And they have increased a certain natural reticence on the part of the American

people to commit U.S. troops to humanitarian and peace keeping missions, even when they are justified, as they are, for example, in Darfur. Coupled with America's human rights practices as part of its prosecution of the war on terror-secret incommunicado detentions,

denial of habeas corpus, winking acceptance of torture-the nation's ability to hold others to account for their own abuses has been severely weakened. A new administration will certainly have its hands full repairing this damage. It will need to find a variety of ways to signal renewed US. support for the international system. RatifYing one or more international human rights treaties would help do that. Perhaps the Convention on the Rights of the Child, which all countries except the United States and Somalia have ratified, would be a place to start now that the U.S. Supreme Court has removed one of the major objections to the treaty by declaring the execution of juveniles unconstitutional. Or closing Guantanamo Bay. Or removing the reservations to various human rights treaties that declare them nonenforceable in domestic law. Or standing for election to the UN Human Rights Council, flawed though it is, and using that forum to articulate a renewed commitment to a comprehensive human rights agenda. Or revisiting U.S. concerns about the International Criminal Court with an eye toward eventually ratifYing the Rome statutes establishing the court, or at least suspending the penalties we have leveraged against those countries that have refused to immunize Americans from prosecution by the court. If Iraq has taught us anything, it ought to have demonstrated that finding ways to deal with tyrants short of military force is to the advantage of all parties. It will need to adopt a more sophisticated, less ham-handed approach to the promotion of democracy around the globe. It ought to go without saying that human rights are served by an increase in the number of stable democracies in the world. But the key word is "stable," since we know that newly formed, unstable democratic states lacking robust civil societies and strong democratic institutions are especially prone to be breeding grounds for all sorts of mischief, not least the production of terrorists. The tragedy of the Iraq War will only be compounded if the lesson drawn from it is that, because force- . feeding democracy proved so destructive, the only alternative is quiescence. While democracy is no magic bullet, tyranny guarantees bullets aplenty. Not every nation is ready to leap into full-blown democracy on a moment's notice. But if, indeed, as worldwide surveys have found, more than 90 percent of Muslims endorse democ- Introduction 13 racy as the best form of government, what is required of us is neither perfectionism nor passivity.42 What is required of us is patience. It will need to codify the positive obligations of the United States under the newly minted doctrine of the "responsibility to protect. "Just as the Iraq War ought not sour us on promoting democracy, so we must not allow it to impose an unfitting shyness upon us about using military power for humanitarian ends. In 2005 the UN General Assembly endorsed the worldwide responsibility to protect civilian populations at risk from mass atrocities.43 That does not imply that the United States will have to be the proverbial "world's policeman," committing its troops willy-nilly to the far corners of the globe. But it does mean that the United States will need to take mass atrocities seriously, adopting an early warning system for populations in danger, shoring up weak and failing states, and providing leadership and support for intervention when necessary, even when it itself stays far away from battle. The American people can distinguish between unwise military posturing and morally justified humanitarian interventions. In January 2007, after more than three years and 3,000 U.S. deaths in Iraq, 63 percent of Americans, quite understandably, said that the world has grown more afraid of U.S. military force and that such fear undermines U.S. security by prompting other nations to seek means to protect themselves.44 Yet, even so, in a poll taken six months later, a plurality of Americans favored deploying U.S. troops as part of a multinational force in Darfur.45 If the American people can tell the difference between legitimate and illegitimate use of force, the American government ought to be able to also.

It will need to conform US. practices to international standards on fundamental human rights issues. The U nited S tates will never reclaim its reputation for human rights leadership as long as its own policies on such issues as due process for prisoners taken into custody in the

course of the war on terror remain at such radical odds with international law and practice. There is considerable room for debate as to how cases of terror suspects should be adjudicated, especially when highly classified intelligence is involved-whether, for example, the United States

should establish special national security courts or integrate such defendants into the regular criminal justice system46- but what is beyond doubt is that the current system in which suspects are cast into legal netherworlds of secret detentions and coercive interrogations

cannot continue. And in a broader sense, the United States would do well in the eyes of the world to be less defensive about its own domestic practices that may fall short of international standards. Our credibility in criticizing others waxes and wanes in direct proportion to our willingness to acknowledge our own shortcomings. We should, for example, welcome to this country any UN special rapporteur who seeks an invitation to investigate; we should encourage the solicitor general of the United States to draw upon international law to buttress the government's arguments before the Supreme Court, thereby lending encouragement to those members of the court who are beginning to look to such law to inform their opinions;47 and we should issue an annual report on U.S. human rights practices to complement the State Department's reports on other countries. Mter all, since the Chinese publish such a report on us each year, it could not hurt to publish a more accurate version of our own.

AT: N/U: Same Sex Marriage

And, Obama leadership on Gay rights is irrelevant – his position on counter-terrorism human rights issues are the defining factor

Nossel 12

(Suzanne, Executive Director – Amnesty International, “Time for a Reset on Human Rights,” Foreign Policy, 11-7, http://www.foreignpolicy.com/articles/2012/11/07/time_for_a_reset_on_human_rights?page=0,0)

Although Obama faced truculent political opposition in his first term, his weak record on human rights cannot be explained away by economic exigencies or even congressional defiance. Obama now openly embraces the concept of a global "war on terror" as grounds to override international human rights norms and reinterpret the Constitution. Osama Bin Laden's killing was not only the chief talking point of his campaign but a synecdoche for his approach to the terrorist threat, one in which the administration writes its own rules. Although preventing attacks on U.S. soil

represents an important human rights victory, this should not overshadow the worrisome direction of U.S. human rights policy and its long-term consequences. If the president's legacy is to include reclaiming U.S. human rights credibility , he needs to face up to his troubling record, and fix it . The

Obama administration has led in some areas of human rights policy; examples include advancing gay and lesbian rights, bolstering U.N. human rights mechanisms, and promoting Internet freedom. But where human rights norms are pitted against counterterrorism tactics, it has fallen down . Blocked by

Congress, Obama broke his first-term promise to close Guantánamo. Four years later, that failure barely seems to register as a disappointment; 167 men languish in the prison, including 55 who are cleared for release but have not been transferred.

And, domestic surveillance is key – it’s a hallmark of Obama policy

Greenwald 12

(Glenn, Political Commentator – Guardian, “Collapsing U.S. Credibility,” Salon, 6-25, http://www.salon.com/2012/06/25/collapsing_u_s_credibility/)

One can reasonably object to Carter’s Op-Ed on the ground that it romanticizes a non-existent American past

(systematic human rights abuses are hardly a new development in the post-9/11 world), but what cannot be reasonably disputed

is the trend he denounces. Note that the most egregious examples he cites — assassinating U.S. citizens without due process, civilian-killing drone attacks, the indefinite detention provisions of the NDAA — had some genesis under Bush but are hallmarks of Obama policy (his other example, the rapid erosion of

constraints o n government domestic surveillance, took place under both, with the full support of Obama ). It’s a remarkably scathing denunciation of the record of his own political party and its current leader.

Surveillance key

And, actions on domestic surveillance send a Unique Signal abroad – next two years are essential to re-build U.S. credibility

Simon 14http://www.cjr.org/criticism/barack_obamas_press_freedom_legacy.php

With less than two years remaining in his administration, there are still actions the president can take to strengthen transparency at home and increase US influence abroad, particularly advocacy on behalf of journalists facing persecution and violence as a result of their reporting. According to the CPJ report, the Obama administration’s policies have undermined the role of the press in three fundamental ways. First, the government’s war on leaks has not only intimidated whistleblowers, it has ensnared journalists. To designate providing classified information to the media as espionage alone sends an intimidating message, but journalists and news organizations have also been subpoenaed and surveilled in the course of these investigations. Second, the Obama administration has undermined transparency by fighting against the release of essential information, such as the Justice Department’s “drone memo,” which provided legal justification for attacks carried out around the world, including the targeting of American citizens. The administration has failed to address the issue of over-classification of government documents; it has allowed the proposed reform of Freedom of the Information practices to languish; and it has stymied contact between reporters and officials. Finally, revelations about the scope of the NSA surveillance program have had a global chilling effect, undermining the confidence of journalists and inhibiting their ability to communicate with their sources. The perception that the US government routinely monitors electronic communications has limited contact between journalists and officials, according to a joint ACLU-HRW report entitled With Liberty to Monitor All, published last summer. It is worth noting that US journalists enjoy some legal protections against NSA surveillance; journalists outside the United States do not. The Obama administration has taken some positive steps in recent months. In January, the Justice Department decided not to call New York Times reporter James Risen to testify in the trial of former CIA officer Jeffrey Sterling, who was subsequently convicted of leaking classified information. Risen, who had been subpoenaed in the case, vowed not to reveal his sources. Later in January, the Justice Department adopted new guidelines limiting the circumstances in which journalists can be subpoenaed and compelled to testify about their reporting. These actions, while limited, are important and pave the way for additional steps. For example, Obama should accelerate the process with which FOIA requests are answered and approved in the spirit of the January 2009 FOIA memorandum, which called on all government agencies to “adopt a presumption in favor of disclosure.” He should support stalled legislation to codify this standard in law. According to a recent AP report, the Obama administration last year set a record for denying and censoring requests for government information. This is why the president must urgently implement recommendations from the Public Interest Declassification Board’s 2012 and 2014 reports to reduce the over-classification of information. Second, the president should repeal the “Insider Threat” program that requires federal employees to help prevent unauthorized disclosures of information by monitoring the behavior of their colleagues. The prohibition on unauthorized contact with the media has bled into other agencies dealing with

sensitive but non-classified information, like the FDA and the EPA. Obama can also unilaterally loosen restrictions for all government agencies to allow officials to speak more freely with reporters. Finally, the administration must disclose information regarding current federal policy on the warrantless surveillance of journalists’ communications. Obama should issue a presidential directive limiting the ability of national intelligence and law enforcement agencies to surveil the communications of journalists in the US and around the world. There must be formal procedures to ensure that all requests to surveil journalists require high-level approval. This was a key demand of CPJ’s Right to Report Campaign, which gathered more than 10,000 signatures. The issue was also raised by a CPJ delegation that met with senior official at the White House last December. Taking these actions will also strengthen US foreign policy goals. The president’s latest National Security Strategy document, which outlines the administration’s vision of its leadership role around the world and its strategy for protecting US interests, notes, “our ability to promote our values abroad is directly tied to our willingness to abide by them at home. In recent years, questions about America’s post-9/11 security policies have often been exploited by our adversaries, while testing our commitment to civil liberties and the rule of law at home. For the sake of our security and our leadership in the world, it is essential we hold ourselves to the highest possible standard, even as we do what is necessary to secure our people.” On World Press Freedom Day, May 3, US officials, including perhaps President Obama, will make public statements in support of persecuted journalists around the world. Such statements don’t have much visibility in the United States, but they have enormous resonance in places around the world where journalists are at risk. For example last year, US official highlighted the case of imprisoned Vietnamese blogger Nguyen Van Hai. He was subsequently released from prison and allowed to travel to the US, where he currently resides. Likewise, the failure to uphold high standards opens the door for repressive leaders to justify their actions by citing the US example. Last year, Egyptian officials claimed that the country’s crackdown on the local press and the imprisonment of three Al-Jazeera English journalists was “not so different from the Obama administration’s crackdown on leakers in national security cases,” according to The New York Times. Journalists facing persecution and repression depend on the support of the US government, now more than ever. That is the most compelling reason why President Obama must use his remaining time in office to increase transparency at home and reinforce the country’s influence abroad. It’s not too late for the president to make this his press freedom legacy.