Friday, June 29, 2012

Justice Roberts has a point: does the "individual mandate" set a dangerous example for other areas? What about Internet use liability?

Justice Roberts, in ruling that the Commerce Clause doesn’t authorize the federal government to buy anything from private businesses, while allowing the federal government to tax people who don’t buy “it”, may at least be making one valuable point. That is, private businesses, empowered to sell a required product, could (if not heavily regulated) discriminate against disfavored people, whereas the government would face political problems in trying to tax the same people unfavorably.  (Without regulation, at least, imagine the problems for HIV+ people given such a mandate.)

Where the idea could come back again is the idea of requiring people to have insurance for problems they could cause from personal Internet use.  These possibilities include libel or defamation, and perhaps inadvertent participation in sending malware or conceivably even child porn if their home computers are hijacked.

There are people who think that “amateurism” has gone too far and poses risks that are hard to control.  And the risks may come from users who don’t individually have a lot of experience in having to provide for others.

Libel insurance for bloggers was offered through the Media Bloggers Association in the fall of 2008; I’ve heard almost nothing about it since.  It was expensive.  The National Writers Union tried to offer it back in 2001, and ran into problems with their carrier refusing to cover webmasters who covered “controversial” material, especially gay and lesbian rights.

Property and casualty companies have dabbled with covering incidental hazards with home computer us as part of a homeowner’s policy.  Likewise, they’ve sometimes included it “umbrella” policies on auto insurance for individuals who will certify they are not “entertainers”.  But is a world where anyone can suddenly become an Internet celebrity (as in the Chris Crocker biography interviewed on my movies blog yesterday), that method certainly doesn’t sound sustainable.  More recently, around 2009, a few property companies dabbled with charging social media users more because they can become targets for thieves.

Putting all this in perspective, perhaps the country should appreciate Justice Roberts and his constructive conservatism – recognizing that requiring purchase of anything in the market could cause intractable problems for some people.   

It’s well to mention that the “conservatives” on the Court had another constructive opportunity. That is, turn down the Individual Mandate, but invite the states (not controlled under the Commerce Cause) to pass their own individually.  States, under practical political pressure to make premiums affordable for their voting constituents, would have no choice but to do so, by the end of 2013.  There’s a practical advantage: the details of the mandate could vary within each state, according to demographics and other cultural issues.  You could take advantage of “federalism”, experiment, and gain experience in a hard-to-gauge policy issue over time.

By the way, “breaking news”: The GOP wants a vote on repeal of “Obamacare” by July 11.  Unbelievable.

Update: Oct. 10, 2014   

Some perusal of more recent  web literature by property and auto insurers suggest that umbrella policies don't cover Internet speech covered in the course of business, employment, or professional pursuits.  It has to be something essentially incidental.  But the world of social media and self-publishing, often "non-commercially" or without significant monetary flow, certainly could complicate the picture.  I'll hav to look more into this.  

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