On Thursday, I had the privilege to argue a case in front of the Third Circuit Court of Appeals in Philadelphia. I spent the afternoon visiting the historic sites surrounding the courthouse – Independence Hall and the Liberty Bell – and a museum on the Constitution. It was fitting that our case was argued in the heart of democracy and our Constitution.
The case was about Internet privacy – in particular, the biggest Internet hacking and tracking scheme in history. I was there as part of a group defending your (and every American’s) right to privacy on the Internet, in particular, your right to be free from computer hacking if you choose a web-browser that is specifically designed to block companies like Google from spying on you.
Just this summer, the Supreme Court ruled in a case called Riley v. California that Americans have a Fourth Amendment right to privacy in the data contained on a personal computing device, and went out of its way to explain the importance of keeping Internet search and browsing history private. You also have statutory rights to privacy under the Electronic Communications Privacy Act which, in many cases, are even stronger than your rights under the Constitution.
The Defendants in the case are Google and a handful of other data-tracking companies who hacked their way around the privacy settings of the Apple Safari and Microsoft Internet Explorer web-browsers. Of course they brought a phalanx of lawyers. This too was fitting. It is in America more than anywhere else that citizens enjoy equality before the law. And it is in our courts where this is most true.
Outside that courtroom, the Defendants include one of the most powerful companies in history. Inside the courtroom, the law and the facts are what drive the case. There’s nowhere else in American government where the average American would have an equal voice to defend their rights to privacy against hacking schemes concocted by companies like Google. In the legislative or executive branches, Google would secure meetings with top officials to persuade them to ignore the privacy interests of ordinary Americans. In the judicial branch, Google cannot plead their case without informing the other side of their arguments.
Unequal bargaining power between powerful interests and ordinary Americans is nothing new. Since the beginning of our Republic, the legislative and executive branches of the federal and state governments have been the target of financially and politically powerful groups and companies. These groups aren’t always the wealthy. It seems today that Washington is rigged in favor of both the poor and the powerful, and that it is the middle-class American who is ignored.
While there’s nothing new about this, I believe there’s a general feeling that it’s getting worse – particularly in state government. Also this week, on Monday, I chaired a committee that called on Attorney General Chris Koster to explain his actions in a series of cases detailed in the New York Times where his office either decided to take no action or to take lesser action after some interactions with companies that were the targets of civil investigations. We did not vote, but I believe it’s fair to say the committee agreed that Koster likely made the correct legal decisions. (All but two members of the committee were lawyers.) General Koster admitted that his office made a mistake in one case in not filing a case in time, but that it was not a purposeful error and they later attempted to make up for it the best they could.
The other prominent case involved 5 Hour Energy. A small group of states had started an investigation into the company for allegedly deceptive marketing. An attorney in Missouri’s AG’s office had apparently had some conversations with this group. An attorney for 5 Hour Energy sought General Koster out at a conference of the Democratic Attorney General’s Association at a swank hotel in California. After that conversation, Missouri’s investigation was soon dropped. The lawyer was neither a registered lobbyist in Missouri nor, to my knowledge, a Missouri licensed attorney.
General Koster presented our committee with a courtroom-style blowup of the allegedly deceptive advertising. He argued that it was not the type of matter with which an attorney general’s office should engage because it was not deceptive and very likely would not have even survived a motion to dismiss under Missouri law. I think he was right. But neither I, nor the committee, will endorse the process that led to that decision.
Like grade school math, it’s not always enough to reach the right result. Process matters. In this case, there was a deeply flawed process. Hotels in California after conversations with people who are not registered lobbyists or lawyers licensed in Missouri are not the appropriate places for policy or legal decisions to be made. And where you have a flawed decision-making process, you’ll eventually make bad decisions.
To his credit, General Koster reported to the committee that he has since changed the process for high-profile civil investigations in his office. There’s a team of experienced lawyers who meet before engaging a high-profile case, and before there’s any decision to settle or exit one. That is an improvement.
To be fair to General Koster, he is not alone. Every governor and attorney general in the country is feted and bombarded by special interests at events hosted by groups similar to the DAGA. There’s the Republican and Democratic Governor’s Associations, and there’s a Republican Attorney General’s Association. For big-time corporations, events hosted by these groups are like shooting fish in a barrel. They can make their pitch to leaders in dozens of states in just a few days. And can do so in an upscale atmosphere.
There’s also a legislative equivalent in the American Legislative Exchange Council. ALEC is a little different in that legislators are not “deciders” in the same way that governors or attorney generals are. Depending on the issue, a lobbyist who seeks particular action from a governor or attorney general does not need to rely on anyone other than the governor or AG to make it happen. Legislators must convince a majority of their colleagues to pass the bill (and sometimes a super-majority) which is oft easier said than done.
As the world has become more connected over the past 15 years, these various groups have grown in influence. There is little we can do in Missouri to change that. But I believe there are two things. First, we can pass legislation requiring more immediate reporting of out-of-state travel and perhaps reporting on lobbying at such events. At the very least the public should have a way to determine with whom their elected officials are meeting when they attend out-of-state conferences. Second, we can vote for candidates who best embody our views and who are not likely to have the opinions molded from lobbying in such rarified air.