Sterling and the Shrinking Scope of the Purely “Private” Sphere

“These days, the only way you can have a private conversation is to talk to yourself.”

-- “Susan_Gale” (Board of Wisdom)

Last month, BSB covered the saga of Mozilla CEO Brandon Eich, who resigned after amid a torrent of criticism for his $1000 donation in support of California’s Proposition 8, a ballot measure that sought to ban same-sex marriage. At the time, there was considerable discussion about whether public pressure should be directed at an individual like Eich purely on account of his political beliefs.

More recently, a similar firestorm erupted in the National Basketball Association, as Donald Sterling, the octogenarian owner of the Los Angeles Clippers, was recorded making deeply racist comments. The recording was captured by one of Sterling’s associates, V. Stiviano, who later gave it to a third party for “safe keeping” only to have the contents leaked to TMZ.

Recent reports indicate that the recording was made with consent from both Sterling and Stiviano (California is a “all-party” (or “two party”) consent state, whereas New York is a “one-party” state requiring only one individual to have consented to a recording).

While some have hailed Stiviano as a “hero”, others have questioned whether the real story—aside from the vile commentary unleashed by Sterling—is the nature of private communication in modern life.

NBA great Kareem Abdul-Jabbar even went so far as to say, “Shouldn’t we be equally angered by the fact that his private, intimate conversation was taped and then leaked to the media? Didn’t we just call to task the NSA for intruding into American citizen’s privacy in such an un-American way?”

ESPN columnist Jason Whitlock added:

If TMZ plans to make “pillow talk” public and the standard is set that “pillow talk” is actionable, it won't be long before a parade of athletes joins Sterling on Ignorance Island.

A right to privacy is at the very foundation of American freedoms. It's a core value. It's a mistake to undermine a core value because we don't like the way a billionaire exercises it. What happens when a disgruntled lover gives TMZ a tape of a millionaire athlete expressing a homophobic or anti-Semitic or anti-white perspective?

Lastly, Globe columnist Jeff Jacoby issued a cautionary warning, “[I]t isn’t only other people’s dirty laundry that the whole world can get a good look at. It is yours and mine, too. Once our privacy is gone, don’t count on getting it back.”

So what are we to make of this? At the outset, we need to define whether the decline in privacy is a problem in the first place. Presumably, we believe that a shrinking private sphere will lead to self-censorship and the decline in discourse that may at the time seem abhorrent but later becomes not only accepted, but embraced (countless ideas in history follow this trajectory, from Copernican heliocentrism to marriage equality).

At the same time, each of us as “public citizens” must be prepared to shoulder the consequences of our views. But which views? Perhaps those that we affirmatively choose to share with others. For instance, Brandon Eich contributed to a public campaign and was held to account in the marketplace. Donald Sterling did not make such an affirmative choice, though as most others have noted, given Sterling’s history of behavior, he garners little sympathy.

Beyond whether a communication was intended to be public or private, are there important lines to be drawn between politicians and public figures—who we expect to uphold a certain type of consistency across audiences—and private “everyday” Americans? The law already differentiates between these classes of persons in libel law, where public figures must prove “actual malice” to recover. See Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

Of course, this only begs the question of who constitutes a public figure. It’s easy to say that a billionaire NBA owner is a public figure—but what of the small business owner on the corner or the superintendent of a small regional school district?

None of these questions are easy to answer, but the Sterling story should generate conversation about the nature of privacy in the modern age—an issue that we’ve done little to address, other than using technology to provide a quick fix (here’s looking at you, Snapchat).

Furthermore, it acts as a reminder that each of us is aware that people say things they don’t mean (we’ve all done it) and that attaching permanent pariah status on another individual for thoughts shared with intimates behind closed doors is often unfair and short-sighted. A society built on open dialogue and second (and third) chances cannot function if there is no safe space to discuss controversial subjects in a constructive manner (again, Sterling’s do not remotely fit this description, but other controversial comments do).

Now I better log off and put pen to physical paper. After all, privacy isn’t dead yet.

More and Less: Justice and the Plight of the Poor

“With the help of well-designed experiments, you can see glimmers of moral thought, moral judgment and moral feeling even in the first year of life. Some sense of good and evil seems to be bred in the bone.”

-- Paul Bloom, “The Moral Life of Babies,” New York Times (9 May 2010)

This week, Annie Lowrey of the New York Times wrote a terrific, front-page story on how the poor in America have much greater access to material goods than in generations past, yet feel as if they are falling farther and farther beyond the middle class. As James Ziliak, director of the University of Kentucky’s Center for Poverty Research, stated, “Without a doubt, the poor are far better off than they were at the dawn of the War on Poverty. But they have also drifted further away.”

If people are better off, why does it matter if they’ve “drifted away” from the middle and upper classes on a relative scale? If the rising tide lifts all ships, what difference does it make if some seas rise faster and taller than others?

As it turns out, it makes every difference in the world—and not just in America, but also across most societies in every corner of the globe. Why? Because rising inequality, no matter how improved the objective standard of living is for individuals across the board, offends something deep within us—an innate sense of fairness, justice, and opportunity.

As Paul Bloom wrote in 2010, “You won’t find a society where people don’t have some notion of fairness, don’t put some value on loyalty and kindness, don’t distinguish between acts of cruelty and innocent mistakes, don’t categorize people as nasty or nice.”

As a result, it should come as no surprise that people are frustrated—even enraged—by how an emphasis on conspicuous consumption has replaced a more fulfilling vision of the American Dream with a vacuous conception of liberty and success.

For far too long, American policymakers have focused on “expanding the pie”, as if GDP growth was gospel sent down from on high—the embodiment of our collective pursuit of happiness. As we’ve explored in this space, however, achieving happiness is a much more complicated task than economic growth. It requires a deep understanding of human nature; a critical examination of the true material needs (as opposed to wants) of individuals, and a commitment to investing in the foundational elements of true prosperity—the infrastructure of opportunity.

That infrastructure is physical—inter-city high-speed rail, urban mass transit, affordable housing, reliable water/gas delivery, clean power—and human—education from K-graduate school, social institutions, mobility (where health care attaches to you as a human rather than an employee), and substantive and procedural justice.

Erecting this infrastructure is a mission statement that acknowledges that government’s primary role is to lay the groundwork (including a robust social safety net) for people to life the lives they’ve imagined, but that the State must also take aggressive steps, as necessary, to allay levels of inequality that threaten to create a “gilded class” (if Thomas Piketty is right that, over time, the rate of return on capital is greater than the growth rate of the economy, then individuals who start with capital are very likely to accumulate more) and undermine the citizenry’s belief in the very idea of Republican government.

While the incredible reduction in extreme poverty worldwide has brought billions of people the bare necessities of life, there remain 1.2 billion people living on less than $1.25 per day. These individuals remain in desperate need of economic growth and actions to address inequality. As the Economist noted last year, “Growth alone does not guarantee less poverty. Income distribution matters, too.” Indeed, while two thirds of the fall in extreme poverty was the result of economic growth; one-third came from greater equality.

As the cartoon above implies, the world has enough—enough to feed the hungry and shelter the homeless, enough to treat the sick and heal the injured. However, that bounty means little unless extreme poverty is eradicated in the developing world (an achievable goal by 2030) and unless the developed world creates an infrastructure of opportunity commensurate with our innate belief that all people deserve an equal chance to succeed.

The Fixed Point of our Spiritual Constellation: The Fault in Our Stars

“Identity is an assemblage of constellations.”

--Anna Deavere Smith, 2011

Last weekend, the Times published “New York City in Haiku”, a series of short poems from people of all ages that described certain aspects of living in America’s greatest metropolis. One submission from a 14-year-old Manhattanite reads:

Face seen across tracks,
We stare, and a train passes,
Face gone forever.

That feeling—of life lines converging for a fleeting moment only to separate once more, perhaps indefinitely—is common to all humanity, not only on the subway platforms of New York, but in towns big and small across the country and around the world.

Even these ephemeral connections are like manna to our souls. As recently detailed by behavioral scientists Nicholas Epley and Juliana Schroeder, these interactions with “strangers” (even mere eye contact!) generally produce a more positive experience than remaining in solitude. Social beings, we are.

But as beautiful as these short-lived convergences are, they cannot replace the sentiment felt when, against seemingly all odds, life lines not only converge, but dance in parallel motion, flirting, bumping up against one another, and eventually fusing together in a double helix bond.

The protagonists of John Green’s latest book, The Fault in Our Stars (2012) (a NYT bestseller that is sure to sell a few more copies when it is released as a major motion picture on June 6—see trailer below), are lucky enough to form such a bond—lucky being an odd word to use in reference to teenagers suffering from the scourge of cancer.

Lucky they are, though, in that their shared affliction—tragic as it is—led them to one another. “Were she better or you sicker, then the stars would not be so terribly crossed, but it is the nature of stars to cross…there is no shortage of fault to be found amid our stars.”

Those “stars” or “constellations” in our lives take many forms—friends, siblings, parents, classmates, neighbors, competitors, strangers. Amidst the many uncertainties of life, the protagonists in Fault find that the “stars” inexorably orbit (and are pulled ever so slightly towards) humanity’s “black hole”, which is to say, closer to death and oblivion.

Nevertheless, one particular star seems fixed—to be trusted even when all the other measures of direction fail. As Augustus Waters says to Hazel Grace Lancaster:

I’m in love with you, and I know that love is just a shout into the void, and that oblivion is inevitable, and that we’re all doomed and that there will come a day when all our labor has been returned to dust, and I know the sun will swallow the only earth we’ll ever have, and I am in love with you.

One of the magical aspects of parallel lines is that even though we know that they go on forever, never to converge, perspective plays tricks with our minds, convincing us that far on the horizon, the lines, having ever so deliberately sidled up beside one another, touch.

And maybe that’s the greatest lesson of Stars—that for all those passing glances on the subway platform, life lines going far and wide, there is an Ultimate convergence that our shared mortality forces us to confront. “Earth to earth, ashes to ashes, dust to dust,” the infinity of love shines brightly, beckoning us home.

Crime, Clemency, and Constitutional Corrective Action

“[T]he world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”

--Thomas Paine, Common Sense, 1776

Last week, many criminal justice advocates rejoiced at the Department of Justice’s announcement of a broad clemency initiative targeting “nonviolent felons who have served at least 10 years in prison and who would have received significantly lower prison terms if convicted under today’s more lenient sentencing laws.”

Many of the potential beneficiaries of the program were convicted of drug crimes between 1980-2010, during which time there only significantly more draconian penalties across the board and gross disparities in sentences based on certain types of drugs (powder v. crack cocaine being the most infamous).

As the Times notes, while Congress reduced (but did not eliminate) the disparity by passing the Fair Sentencing Act (FSA) in 2010, it has not chosen to apply the new sentences retroactively (though the Supreme Court did rule, 5-4, that the lower minimums apply to people who committed crimes prior to the law being enacted, but who were sentenced after the bill became a law—see: Dorsey v. United States, 567 U.S. ___ (2012)).

The decision not to apply the Fair Sentencing Act retroactively was not made without significant consideration by the Legislative branch. Indeed, in the wake of the FSA’s passage, Senators Dick Durbin (D-IL) and Mike Lee (R-UT) proposed broader retroactively in the “Smarter Sentencing Act”, which would allow individuals to petition the courts for sentence reductions commensurate with the FSA.

While the bill has yet to receive a vote, the Senate Judiciary Committee approved the Act by a bipartisan vote of 13-5 in January 2014. It is a good bill—a critical second act to the FSA—and Congress should pass it without delay.

But where does that leave the President’s new clemency system? Is it an appropriate tool to use to modify potentially thousands of sentences in a way that Congress specifically rejected when it passed the FSA only 4 years ago?

Linda Greenhouse, former SCOTUS scribe for the Times and current Journalist in Residence and Lecturer at Yale, wrote in January, “Keeping a known and finite group of people locked in a system acknowledged to be irrational is irrationality itself.”

I completely agree and that’s a darn good argument to make to urge House and Senate members to pass the Smarter Sentencing Act. It is, however, not such a good argument for the unilateral imposition of what one unitary Executive deems “rational” (indeed, logical as you may be, dear reader, it stands to reason that the officeholder at 1600 Pennsylvania Avenue is quite likely to disagree with your sense of rationality over time).

Indeed, the use of the unilateral clemency power is a far cry from supporting legislative changes to criminal laws, sentencing guidelines, or policies related to the use of prosecutorial discretion. In all three of those instances, the Executive branch is either using authority specifically granted to it and it alone under the Constitution, or is seeking to persuade another branch to support a specific policy recommendation.

The clemency power, while constitutionally authorized, has not traditionally been applied to situations in which Congress or the Courts could act—through their basic structure—to cure the underlying injustice.

As Chief Justice William Rehnquist declared in Herrera v. Collins, 506 U.S. 390 (1993), “Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted” (emphasis added).

Like presidential pardons, which can and often are abused for political gain, a broad grant of clemency by the President, particularly where the underlying effort conflicts with recent Congressional action (see Justice Robert Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)), is a tool that lends itself to overreach, particularly in lame duck terms.

Thus, sympathetic as I am to the urgent injustice the President is seeking to address, I cannot support a blanket use of the clemency power to address such an injustice (just as I cannot accept broad based commutations of death row inmates by governors despite my personal view that the death penalty is heinous and unconstitutional in all cases).

Instead, we must actively persuade our fellow citizens and our elected representatives to pass laws to end the era of irrational drug penalties and, if they choose not to do so, we must punish them at the ballot box. That’s the way democracy functions—not by fiat or force, but by politics and persuasion.

SCOTUSWatch: The iPhone Meets the Fourth Amendment

“The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate.’”

-- Justice Antonin Scalia, Kyllo v. United States, 533 U.S. 27 (2001)

This morning, the Supreme Court will hear argument in United States v. Wurie and Riley v. California, two cases concerning the right of police officers to search cell phones incident to an arrest without a warrant.

These are just the latest in a long line of cases in which the Court has had to try to graft the text of the Fourth Amendment’s prohibition against unreasonable searches and seizures onto modern technology.

Since 2001, the Court has ruled that placing a GPS device on an individual’s car constitutes a search (United States v. Jones, 132 S. Ct. 945 (2012)), the warrantless use of a thermal device to scan the inside of a home for evidence of heat lamps that could be used to grow marijuana violates the Fourth Amendment (Kyllo), and, my personal favorite, that a California law limiting the sale of violent video games to minors violated the First Amendment (Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011)).

Brown is noteworthy not just for the Court’s strong affirmation of the First Amendment, but also for revealing the limits of the Justices’ understanding of modern technology. During oral argument Justice Elena Kagan stated, “A reasonable jury could find that Mortal Kombat -- which is, you know, an iconic game, which I'm sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing,” at which point Justice Scalia interjected, to the laughter of the courtroom, “I don't know what she's talking about.”

Suffice to say, every Supreme Court justice has a cell phone (whether they have smart phones is another story—the Justices are famous for their paper-based inter-chambers communication), and therefore the issues at stake in the Court today should be at least somewhat familiar.

What are those issues precisely? From my perspective, there are two major questions posed by these cases: (1) What types of content on a phone carry a reasonable expectation of privacy; and (2) How (if at all) does the advent of “cloud” based storage change the calculus for police who seek to preserve evidence incident to an arrest?

First, as NYCLU Associate Legal Director Chris Dunn wrote in a column in the New York Law Journal in February, our phones include a vast amount of information, from emails, photographs, and social media postings to browsing histories, financial data, and GPS-based location tracking.

Some of these “possessions”—like financial records and health information—would seem to fall under the most stringent privacy protection, while others, particularly social media postings (which almost by definition are meant for public display/dissemination), seem to lack the type of reasonable expectation of privacy usually linked with the Fourth Amendment.

Indeed, given that law enforcement agencies already patrol Facebook/Twitter/etc for leads—particularly regarding youth gangs—it would seem odd to not permit cops to examine public social media postings after an arrest, even without a warrant.

On the other hand, why not get a warrant in these situations? For one, a legitimate fear that has long been cited for the need to quickly perform a search incident to an arrest is the concern that evidence could be tampered with, spoiled, or otherwise rendered useless during the booking process. Today, digital “evidence” is uniquely capable of being destroyed from anywhere at anytime by anyone, since a friend could theoretically log in to someone's account and delete potentially incriminating material. That concern creates at least some urgency to a review.

While the First Circuit insisted in Wurie that officers could remove the phone battery, place the phone in a available bag that blocks incoming signals, or copy the phone’s contents without examining them before obtaining a warrant, the fact remains that the evidence accessible via the phone often isn’t on the physical phone. Even the New York Times editorial board fell into this trap, insisting that “any evidence on the phone can be preserved by using special devices to prevent remote deletion of the data.” That’s not true now and is far from a guarantee in the future.

Finding a way to preserve potential evidence stored in the cloud within the framework of the warrant system is a challenge, but not an impossible one. Warrant procedures would need to be streamlined—such that if probable cause exists that evidence of a crime is accessible via the phone, a warrant could be issued in something close to real time.

Establishing such a system is important because the Times is right on the merits—cell phones today are not the 5-pound blocks of Wall Street fame, but are instead repositories of our most intimate associations, private thoughts, and day-to-day movements. For originalists, this means viewing phones as diaries, bank ledgers, and general store receipts rolled into one—precisely the type of “papers and effects” that the Fourth Amendment was designed to protect.

This Land is Whose Land? From NYCHA Housing to Nevada’s Ranches

Was a high wall there that tried to stop me

A sign was painted said: Private Property,

But on the back side it didn't say nothing —

This land was made for you and me.

-- Woody Guthrie, “This Land is Your Land,” 1940

In the summer of 2000, our family rent-a-car emerged from the Grand Tetons and traveled down National Highway 26 into the town of Jackson, Wyoming. As we sped along (the urgent need for pancakes and flat, clear terrain propelling us forward at speeds that would be reckless at best on the I-95 corridor), I stared out the window and watched the cows chewing their weight in grass on federal property (about half of Wyoming is owned by the U.S. Government—see map, below).

Curious about the agreements that allowed for such private use of public property, I asked our waiter at the local diner who owned the cows and how much he/she paid to have them grave on “federal property.” The waiter, already put off perhaps by a New Englander wearing his ever-present Sox jacket, set his pen and paper on the table, looked at me, and declared simply, “That’s our land.”

I was firmly committed to putting pancakes over politics, so I demurred further argument, certain that whoever the “our” was didn’t include me.

This month, a dispute over federal grazing fees charged to Western ranchers once again erupted, with armed civilians taking up positions against Bureau of Land Management rangers who, pursuant to a court order, attempted to confiscate 500 cattle owned by Cliven Bundy, who has been illegally grazing his herd on public land since 1993.

Senate Majority Leader Harry Reid (D-NV) responded by calling the armed vigilantes “domestic terrorists”, while Nevada’s junior Senator, Dean Heller (R), called Bundy’s supporters “patriots.”

Not only is there no agreement on what taking up arms against the federal enforcement of a court order should be called, there isn’t even consensus on the facts underlying the case. Washington Post columnist Marc Theissen decried Reid’s “domestic terrorist” comment, stating that “defending your property against a paramilitary force of armed federal agents is not the equivalent of blowing up a federal building or sending letter bombs” (emphasis added).

Indeed, while Bundy’s abhorrent comments on race and his unwillingness to pay below-market grazing fees to the Federal Government have given him 15 minutes in the national spotlight, what his case and the story of the diner in Jackson are really about is the very nature of property rights—not just in the American West, but across the country.

Indeed, I’ve spent the last week pondering Theissen’s remark, trying to come up with an East Coast equivalent to understand the “ownership” Bundy and people like him feel over land whose title is in our collective name. As it turns out, we have a pretty good analog right here in New York City in how we try to grapple with the difficult concept of “home” as it relates to scarce and precious public housing resources.

This month, NYCHA General Manager Cecil House testified before the New York City Council about the Housing Authority’s “rightsizing” plan. As the wait list for public housing continues to grow (in 2012, NYCHA projected that nearly one in three units (55,000) were “underoccuiped”, while the wait list swelled to 160,000 families), NYCHA has sought to optimize apartment usage by “transitioning families to apartments appropriate for their needs.”

As House stated, “Rightsizing does not only improve the quality of life of current NYCHA residents but also provides housing to more New Yorkers on our waiting list.”

The rightsizing issue has been extremely controversial, largely because its very nature necessitates removing people from their homes and placing them in smaller apartments (particularly older residents whose children have moved out). NYCHA is, after all, a public resource and rightsizing is absolutely needed to ensure that new families can take advantage of the opportunities it provides.

However, if our homes are indeed our castles, it is also understandable as to why ranchers or public housing tenants would feel ownership, the deed notwithstanding.

In situations like these, where emotions run hot and mistrust lurks around every corner, there are few good choices. However, our system of government is rooted in the consistent application of the rule of law, rather than the fallible whims of officials.

Indeed, just as the BLM didn’t attack Bundy for who he was, but for what he did (violate the law by refusing to pay a standard fee), so NYCHA’s rightsizing is not directed at individual residents as punishment, but is instead enforced as part of a contractual agreement entered into by tenants with the Housing Authority.

As long as the system itself is fair and people have the opportunity to argue their case before a neutral arbiter, that’s all we can ask in a Republic. Taking up arms against that effort is an affront to a government of laws itself—a government that is fallible, but far better than the alternative.

Net Neutrality: A Revolutionary Solution to a 21st Century Problem

 “Whatever facilitates a general intercourse of sentiments, as good roads…a free press, and particularly a circulation of newspapers through the entire body of the people…is favorable to liberty.”

--James Madison, Public Opinion, 19 Dec. 1791

This week, the Federal Communications Commission (FCC) announced a major shift in policy concerning “net neutrality”—the principle that has heretofore established that all legal internet traffic must have equal access to the networks of service providers. This shift will potentially allow larger companies (particularly providers of bandwidth-busting streaming video, like Netflix or ESPN) to pay for preferential access to the internet’s infrastructure—what the New York Times deemed “the digital equivalent of an uncongested car pool lane on a busy freeway.”

A host of consumer and civil liberties groups—from Common Cause to the American Civil Liberties Union (ACLU)—have spoken out against the proposed rule changes, with the ACLU predicting, “barriers to innovation will rise, the marketplace of ideas on the internet will be constrained, and consumers will ultimately pay the price.”

On the other side of the argument are telecommunications companies that for years have insisted that “tiered” bandwidth would benefit the majority of consumers. As David Cohen, an executive at Comcast declared at an FCC hearing at Harvard Law School in 2008, “Bandwidth-intensive activities not only degrade other less-intense uses, but also significantly interfere with thousands of Internet companies’ businesses.”

While I personally believe that net neutrality should remain the law of the land, I am not blind to the pressures facing ISPs or the writing on the wall from the FCC. Therefore, I want to focus today on the potential effect that a “bandwidth to the highest bidder” system could potentially have on a free press and whether an ancient Constitutional clause long forgotten—the Post Roads Clause—can be seized on by Congress to ensure a free and equal exchange of ideas online.

I propose that Congress enact legislation recognizing fiber-optic/broadband cable as the post roads of the 21^st century, and (assuming the FCC’s plans go through) require all ISPs that choose to implement differentiated services to permit news organizations to have free and uninhibited access to the fastest possible connection to end users. This designation would reduce the potentially devastating effects of “bandwidth to the highest bidder” and would comport with the history of Congressional awareness of the importance of a free and open press.

The Old Boston Post Road-- From Wall Street to the Hub

In 1791, Massachusetts Congressman Elbridge Gerry declared, “Wherever information is freely circulated there slavery cannot exist; or if it does, it will vanish, as soon as information has been generally diffused.” Shortly thereafter, the first Postal Act passed and ever since, the Post Roads power of Congress (Art. I, §8, Cl. 7) has been used to support the work of newspapers. Newspapers were permitted to use the mails at deeply discounted rates throughout the 18^th and 19^th centuries and were eventually joined in that privileged position by magazines, books, and other periodicals.

Over time, the Post Office has continued to be at the forefront of using transportation and communications technologies to improve both the reach of the press and the speed at which its product could be transmitted across the continent.

In 1823, waterways were declared post roads. In 1838, all railroads in the United States were declared post roads. And in 1922 and 1923, the Post Office was awarded the Collier Trophy for important contributions to the development of aeronautics for its contributions to airliner safety.

The Post Office not only asserted control over transportation technology, but also over new forms of communication technology. As the Supreme Court of the United States noted in Pensacola Telegraph Company v. Western Union Telegraph Company, a case upholding Congressional regulation of telegraph lines:

Post-offices and post-roads are established to facilitate the transmission of intelligence…The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the demands of increasing population and wealth.

Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1, 9-10 (1878) (internal citations omitted) (emphasis added).

Like the canals, rails, and wires before it, the internet has become the great facilitator of knowledge—tying the nation and the globe together and transmitting ideas across oceans in ways the Founding generation never could have imagined. And yet, as the Court said 136 years ago, the Constitution stands ready to adapt to the “progress of the country.” In 2014, the time has come for Post Roads to meet Cyber Space.

Stamps, Low Prices, and Banking in Modern America

 “I cannot forbear intimating to you the expediency… of facilitating the intercourse between the distant parts of our Country by a due attention to the Post-Office and Post Roads.”

--President George Washington, 1^st Annual Address to Congress, 8 Jan. 1790

In February, Senator Elizabeth Warren (D-MA) unveiled a proposal, based on a white paper issued by the Office of the Inspector General for the United States Postal Service, to resuscitate the flailing Postal Service by partnering with banks and credit unions to offer basic banking services -- bill paying, check cashing, small loans -- for the nearly 70 million Americans who are part of the “unbanked” economy, lacking access to checking or savings accounts.

As Warren noted, the costs imposed on the working poor by lacking access to bank accounts is substantial.

Collectively, these households spent about $89 billion in 2012 on interest and fees for non-bank financial services like payday loans and check cashing, which works out to an average of $2,412 per household. That means the average underserved household spends roughly 10 percent of its annual income on interest and fees -- about the same amount they spend on food.

Many elected officials have taken significant steps to solve the problems facing the unbanked. For instance, as Manhattan Borough President, my boss, Scott Stringer, partnered with banks to promote low-cost checking accounts through the Bank On Manhattan program, saving thousands of New Yorkers hundreds of dollars in check-cashing fees every year.

However, there are few institutions in American life that have the scope and reach of the United States Postal Service. Indeed, from the flagship Farley Post Office on and 8^th Avenue in Manhattan (10001) to the remote outpost in Barrow, Alaska (99723), USPS has been designed, from the founding of the Republic, to “bind the nation together” as one.

The Founding Fathers wouldn’t have believed it, but in 21^st century America, there may be one entity that can compete with the reach of the USPS: Wal-Mart. The world’s largest retailer, with over 10000 stores in 71 countries (over 4000 stores in the U.S.) and over $476 billion in sales in FY 2014, Wal-Mart’s footprint is so large that over 90 percent of Americans live within 15 miles of a store.

So perhaps it comes as no surprise that as same-store sales stall (thanks in no small part to the stagnation in wages growth for the vast majority of Americans), Wal-Mart is dipping its toes into the financial services arena. Last week, the company announced that it would launch a new, low-cost money transfer system today, Thursday, April 24, which will allow customers to transfer up to $900 between stores at a fraction of the cost of competitors Western Union and MoneyGram (whose stocks plunged upon the news).

While many justifiably criticize Wal-Mart’s labor and environmental practices (though in my view in a manner disproportionate to the scrutiny other similar firms face), there is little doubt that Wal-Mart’s sheer size can have a potentially transformative effect on the unbanked. Indeed, just as we now shop for groceries, set our alarms, read our email, watch TV, and pay our bills with our phones, so the banking of the future is likely to take place outside the traditional bank—be it online or at a store like Wal-Mart (a similar, consumer-oriented trend has emerged in medicine with the proliferation of “minute clinics” in pharmacies nationwide).

It will be interesting to see how Wal-Mart’s new service fares. For now, government regulators should take a wait-and-see approach to the initiative, ensuring that consumers are properly informed of the services offered and the fees charged, while also allowing the market to innovate in order to drive down costs.

And if it doesn’t work out, there’s always that post office in Barrow.