The Wall Street Journal - 23.10.2019

THE WALL STREET JOURNAL. Wednesday, October 23, 2019 |A

F

orty-six state attorneys
general have joined Letitia
James, their New York
counterpart, in an anti-
trust investigation of Face-
book. Every presidential candidate in
last week’s Democratic debate
agreed that big tech companies have
grown too powerful and must be
humbled or diminished, if not broken
up entirely. This idea has gained
popularity across the political spec-
trum, with two-thirds of Americans
now saying they would break up Big
Tech. Although still a long shot, the

breakup campaign has spawned doz-
ens of antitrust probes against Ama-
zon, Apple and Google as well as
Facebook. And it has started a long-
overdue debate about Silicon Valley’s
sweeping influence.
But there are dangers in restruc-
turing any U.S. industry. One of the
most serious remains largely unrec-
ognized: national-security risk. De-
spite their faults, tech companies
contribute directly to American mili-
tary and intelligence operations.
Their titanic scale can itself be an
asset. Any responsible antitrust de-
bate must address the national secu-
rity risks of breaking up Big Tech—
and the parallel risks of keeping
these companies intact.

Americans love to hate

companies like Google and

Amazon, but Big Tech

serves strategic interests.

The Antitrust Threat to National Security

Consider cloud computing. The

Defense Department is planning a

massive global cloud called JEDI. Un-

like corporate clouds, the “war

cloud” must support life-or-death

missions on austere battlefields de-

spite virtual or physical onslaughts.

The Pentagon found only two eligible

bidders: Amazon and Microsoft.

Three defense secretaries, a federal

judge and the Government Account-

ability Office have upheld this bid-

ding process.

It is no coincidence the two eligi-

ble bidders have a combined market

value of $1.9 trillion. Vast resources

were needed to fund global networks

of hardened data centers linked by

undersea cables. The U.S. military’s

unique demands required companies

of unique scale. Yet one JEDI bidder

faces a concerted breakup campaign

(Amazon), and the other was nearly

dissolved in 2001 (Microsoft).

Scale also matters in intelligence

collection. The Foreign Intelligence

Surveillance Act compels U.S. com-

panies to hand over data on sus-

pected foreign agents. U.S. intelli-

gence analysts increasingly rely on

FISA to monitor terrorist communi-

cations or warn of cyberattacks.

Tech giants have particular FISA

value because their sheer popularity

attracts users from around the

world, including hostile actors. The

largest tech companies provide some

of the fastest-growing intelligence

streams.

Splitting up Big Tech would re-

duce its intelligence value. First,

smaller companies would lose global

market share to foreign rivals such as

Alibaba or Baidu, which can ignore

FISA. Small U.S. sites can’t leverage

the “network effect,” a gravitational

force that helps large sites stay domi-

nant. Intelligence collected from

small sites would also be less useful.

They see only narrow slices of online

activity, whereas tech giants track

users across sprawling internet eco-

systems. Dismantling these ecosys-

tems would put greater burden on in-

telligence agencies to “connect the

dots” of potential threats.

But national security cuts both

ways in the antitrust debate. Silicon

Valley giants have taken many actions

that contravene U.S. interests, then

relied on their clout to avoid account-

ability. Social-media platforms have

given terrorist groups a new way to

radicalize recruits and enabled for-

eign governments to covertly influ-

ence the general public. These actors

exploit algorithms that make sensa-

tional content go viral—a result of

decisions by Facebook and YouTube

to maximize user engagement.

Granted, defining the bounds of

acceptable content is no easy task.

But tech titans keep failing in basic

ways: auto-generating terrorist

pages, hobbling analysis of influence

campaigns, shunning democratic

scrutiny. Such negligence stems from

unaccountable power.

Big Tech has also contravened

U.S. interests on China. American

companies should exercise great

care to avoid helping Beijing leap-

frog the U.S. military or perfect digi-

tal repression. Glib platitudes—“AI

and its benefits have no borders,” as

one Google executive put it—do not

justify Google’s establishment of a

Chinese research center. Dubious as-

sertions and discredited theories

can’t excuse Apple’s censorship of

Chinese apps. U.S. tech titans often

fall short of the serious due dili-

gence they owe in matters of na-

tional interest.

So we face a dilemma: Big Tech

has both helped and hindered na-

tional security. How can America

protect its military and intelligence

posture while also addressing legiti-

mate antitrust concerns?

First, broad concerns about “big-

ness” should be distinguished from

specific claims of anticompetitive

conduct. Abusing market position to

suppress rivals is illegal and unac-

ceptable. Bigness itself is more com-

plicated. Any remedy for unlawful

behavior—especially breakups—

should be tailored to protect na-

tional security.

Second, federal authorities should

remain firmly in charge of Big Tech

antitrust cases. State governments

can offer investigative support, but

they should ultimately defer to

Washington—which is better

equipped to evaluate national-secu-

rity consequences.

Third, Congress should invite na-

tional-security experts to testify on

possible fallout from breaking up

tech giants. Lawmakers might also

create formal channels for the mili-

tary and intelligence community to

communicate with antitrust enforc-

ers, with safeguards against politi-

cizing law enforcement.

No Big Tech breakup plan should

be taken seriously if it ignores na-

tional security. Likewise, no tech

company should distract us from ir-

responsible behavior by simply

waving the flag. Big Tech presents

problems, to be sure, but the an-

swer isn’t simply to turn it into

Small Tech.

Mr. Bateman is a fellow at the

Carnegie Endowment for Interna-

tional Peace.

By Jon Bateman

ASSOCIATED PRESS

New York Attorney General Letitia James is investigating Facebook.

OPINION

The Picket Line Makes a Comeback

President Trump
has been mostly
quiet about the
standoff between
General Motors and
the United Auto
Workers. Since he’s
known for building
hotels and not con-
sensus, that’s prob-
ably a good thing.
But these labor dis-
putes aren’t going away. Work stop-
pages have risen sharply in recent
years and the number of workers
who have been idled is approaching
levels not seen since the 1980s.
The U.S. Labor Department re-
ports that there were 20 major
strikes in 2018, the most since 2007,
and they are growing in size as well
as frequency. Some 485,000 people
were involved in labor strikes last
year, the highest number in 32
years. The walkouts haven’t been
limited to a certain industry or re-
gion. They’ve involved hospital
workers, educators and hotel staff
and have taken place in states as di-
verse as California, Oklahoma and
Vermont. While public-sector unions
have led the way, their private-sec-
tor counterparts have been agitat-

ing, too, as GM can attest.

On one level, this isn’t surpris-

ing. We’re in the 10th year of an

economic expansion and unemploy-

ment is at a 50-year low. When la-

bor markets are this tight, employ-

ees gain more leverage. Labor

unions gamble that management

will have a tougher time finding re-

placement workers in such an envi-

ronment if their demands aren’t

met. But something else may be go-

ing on here. In all of 2017 there

were just seven major work stop-

pages in the U.S., the second-lowest

number since 1947. Through Sep-

tember of this year, there had al-

ready been 20.

Part of this phenomenon can be

traced to the 2018 midterm elec-

tions. In addition to gaining control

of the House, Democrats flipped

more than 300 state legislative

seats and won gubernatorial races

in key states that Mr. Trump had

carried in 2016, such as Wisconsin

and Michigan. These Democratic

victories bolstered Big Labor’s al-

ready considerable political clout

and mobilized union leaders every-

where.

The other major development

was last year’s Supreme Court rul-

ing in Janus v. Afscme , which held

that government employees who

don’t want to join a union can’t be

forced to contribute money to it

anyway. Public-sector unions be-

came a major force in politics pri-

marily because of laws and wrong-

headed court decisions that allowed

them to coerce dues from workers.

The Janus ruling was a body blow,

and labor leaders responded with

work stoppages, expanded recruit-

ment efforts and earnest attempts

to frame their activism as a boon

for society, not just themselves.

Randi Weingarten of the Ameri-

can Federation of Teachers said last

year that her political agenda now

extends well beyond the interests of

educators. It’s also about “stoking a

movement for social justice, for

workers’ rights, for women’s rights,

for civil rights,” among other causes.

The AFT and its sister organization,

the National Education Association,

have millions of members and thou-

sands of state and local affiliates.

Since 2018 they have orchestrated

walkouts in at least 10 states and

dozens of school districts. When

teachers in Los Angeles walked off

the job in January of this year, sanc-

tuary protections for illegal immi-

grants were part of the collective-

bargaining negotiations.

These new tactics are currently

on display in Chicago, where teach-

ers in the nation’s third-largest

school district are striking for the

second time since 2012. The union

wants higher salaries, of course, but

it’s also demanding that any new

contract address issues like crime

and income inequality. The Wall

Street Journal reports that the Chi-

cago Teachers Union “has empha-

sized social issues during talks” and

“wants the city to increase funding

for affordable housing and for

homeless liaisons to be provided in

schools.”

Poverty, homelessness and illegal

immigration are real concerns that

deserve serious attention, but when

public-sector unions want to make

them part of contract negotiations

over wages and benefits, something

else might be going on.

Mike Antonucci, an education

journalist who has been writing

about teachers unions for decades,

speculates that the CTU’s real con-

cern is flagging membership. As

the number of students enrolled in

Chicago public schools has de-

clined, so has the number of people

the school system employs. The

“big issue is staffing—more teach-

ers, social workers, counselors,

nurses, clinicians, case managers,

librarians and restorative justice

coordinators and 1,000 additional

teaching assistants,” Mr. Antonucci

wrote recently. “It is no coinci-

dence that virtually all of these

new employees would be eligible

for union membership.”

The increase in school disrup-

tions isn’t about poverty or home-

lessness or even students. It’s about

expanding the reach of collective-

bargaining agreements that give la-

bor unions access to more taxpayer

dollars without voter approval. And

it’s about the desperate search for

members in a post- Janus world

where public-sector unions can no

longer bully people into paying

them.

Enraged by Trump and

energized by the Janus

ruling, unions turn to

an old familiar tactic.

UPWARD
MOBILITY
By Jason L.
Riley

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Impeachment Trumps Executive Privilege. Ask George Washington

P

resident Trump has refused to
cooperate with the “official im-
peachment inquiry” Speaker
Nancy Pelosi announced last month.
One line of defense is executive priv-
ilege, a principle holding that certain
executive-branch communications,
especially related to diplomacy, may
be kept from Congress. The White
House says the privilege limits the
testimony of former officials, and
Mr. Trump’s personal lawyer, Rudy
Giuliani, cited it in refusing to com-
ply with a subpoena.
Mr. Trump and his defenders say
the inquiry is unlawful because the
full House has not passed a resolu-
tion authorizing it. If the courts hold
otherwise or the House does pass
such a resolution, evidence from the
Founding era strongly suggests that
the president’s assertion of executive

privilege will necessarily fail.

When drafting the Constitution’s

Impeachment Clause, the Framers

had a specific historical episode in

mind. In 1649 the English House of

Commons impeached King Charles I

for treason. Charles was alleged to

have unlawfully subverted English

democracy, and the final article of

impeachment charged that he col-

luded with England’s foreign adver-

saries in his campaign against his

domestic political rivals.

Proving that last charge required

an inquiry into Charles’s diplomatic

communications. Much of his trial

devolved into a tedious debate over

whether he could assert the king’s

ordinary privileges and immunities.

At one point Charles infamously in-

sisted that he was immune from im-

peachment altogether because “the

kingcandonowrong.”

Charles lost this debate. His per-

sonal “Papers and Letters” were all

taken as evidence. His secretary was

compelled to testify about his nego-

tiations with England’s foreign ad-

versaries. Within a month of being

impeached, Charles was found guilty

and beheaded.

During the Constitutional Conven-

tion, Benjamin Franklin cited this ex-

ample “of a first Magistrate being

formally brought to public Justice”

as reason to include an impeachment

clause in the Constitution. James

Madison agreed, noting the need “for

defending the Community against

the incapacity, negligence or perfidy

of the chief Magistrate,” who “might

betray his trust to foreign powers.”

Others favored the inclusion of an

impeachment clause so that no

American president would ever claim

he could “do no wrong.” Less blood-

thirsty than the House of Commons,

the Framers limited the maximum

punishment for an impeachable of-

fense to political death—removal and

disqualification from office.

The first major conflict between

the president and the House erupted

in 1796 over executive privilege.

George Washington had just con-

cluded the so-called Jay Treaty, nor-

malizing trade with Britain. The Brit-

ish were at war with the French, who

were understandably furious that the

revolutionaries they’d sponsored

would link themselves to their en-

emy. This sentiment was widely

shared in the U.S., and the House de-

manded that the Washington admin-

istration turn over internal papers

related to its negotiation.

After a week’s deliberation, the

first president refused the request in

a letter to the House that most legal

scholars consider the first invocation

of executive privilege. “The nature of

foreign negotiations requires cau-

tion, and their success must often

depend on secrecy,” Washington

wrote. “To admit, then, a right in the

House of Representatives to demand

and to have as a matter of course all

the papers respecting a negotiation

with a foreign power would be to es-

tablish a dangerous precedent.”

Yet Washington carved out a ma-

jor—but often overlooked—excep-

tion. “It does not occur,” he wrote,

“that the inspection of the papers

asked for can be relative to any pur-

pose under the cognizance of the

House of Representatives except that

of an impeachment, which the reso-

lution has not expressed.” All four

cabinet secretaries emphasized in

writing that such an exception would

be necessary. As Treasury Secretary

Oliver Wolcott wrote, the House

would have a right to the papers

“when an Impeachment is proposed

& a formal enquiry instituted.”

Presidential impeachment inqui-

ries have been rare, and none have

focused on the abuse of the presi-

dent’s diplomatic powers. In this

context, the Framers’ views deserve

exceptional weight. Can the presi-

dent assert executive privilege to

withhold diplomacy-related commu-

nications from the House in a lawful

impeachment inquiry? The Founding

era sources make clear the answer is

no. If a president’s diplomatic com-

munications might have evidence of

impeachable conduct, Congress is

entitled to see them.

Ms. Galbraith is a professor at the

University of Pennsylvania Law

School. Mr. Paradis is a lecturer at

Columbia Law School.

By Jean Galbraith
And Michel Paradis

Charles I tried to withhold

records, saying ‘the king

candonowrong.’The

Framers had another view.

Mark Hemingway writing for the

Federalist, Oct. 21:

While we all sit on pins and needles

trying to suss out the details of [Eliza-

beth] Warren’s Medicare For All plans,

the fact that her vision of America...

is bearing fruit isn’t just a matter of

Warren having different ideas about

policy. It’s the culmination of a pro-

gressive project lasting over a century

that, charitably speaking, puts for-

ward a vastly different understanding

of human nature and morality than

most Americans subscribe to, and was

part of a deliberate plan to erode con-

stitutional restraints by undermining

the “norms, values, standards and

soul of this country.”

So then, do we live with Trump,

who lays bare all the problems with

what happens when naked self-inter-

est collides with power? Or do we tell

ourselves some “regulative fiction”

that pretends those who populate our

sprawling administrative state are

somehow above their own selfish im-

pulses and can be counted on to act

in the best interests of voters, when

that is plainly untrue?...

If you’re wondering how Trump

voters can continue to ignore

Trump’s issues, it’s not even obvious

to lots of voters that Trump oppo-

nents and D.C. institutionalists such

as Sen. “Pow Wow Chow” Warren,

Hillary “Lay off Weinstein” Clinton,

and Adam “I have more than circum-

stantial evidence Trump colluded

with Russia” Schiff are an obvious

contrast to Trump even as a matter

of personal corruption.

Notable & Quotable: Norms