This is what I think is the most insightful part of the article:

> But I actually think there’s a deeper and stranger explanation here. Facebook did some things that a lot of people are upset about, some of which (certain sorts of data sharing) probably violated the laws or its earlier consent decrees, and others of which (certain sorts of data collection) didn’t. We want to stop it from doing all those things again, and the most straightforward way to do that is to pass a law saying which things you can’t do. But Americans are biased toward thinking of bad things as being already illegal, always illegal, illegal by definition and by nature and in themselves. If the thing that Facebook did was so bad, then it must have been illegal, so there is no need for a new law against it. At most we need a settlement with Facebook clarifying exactly which things it did were illegal and specifying that it won’t do them again. People are angry at Facebook, and that anger takes essentially punitive rather than legislative forms; we want to regulate Facebook’s future conduct as punishment for its past conduct, not as part of a general law. It is hard to imagine that a company could have done a bad thing without also breaking the law—which makes it hard to write new laws to prevent future bad things.

Along with this footnote:

> This explanation draws on an argument that James Whitman makes in his great book “Harsh Justice,” about how American traditions of libertarianism and distrust of state power actually make our criminal justice system harsher.Whitman writes (page 201): “The strength of the bureaucratized European state also helps explain another crucial aspect of mildness in French and German punishment: the capacity of French and German law to define some forbidden acts as something less awful than ‘crimes’—as mere contraventions or Ordnungswidrigkeiten. When European jurists define these species of forbidden conduct, they are able to make use of terms and concepts that would trouble Americans. The justification for punishing Ordnungswidrigkeiten, according to standard texts, lies in the pure sovereign power of the state. Because the state is sovereign, the state may declare certain types of behavior impermissible. Americans will instinctively rebel against this characteristically continent attitude toward state power; very few American legal syllogisms begin with the major premise, ‘the state has sovereign power to act.’ But it is important to recognize what Europeans gain by pursuing this form of analysis. Because they are able to defer to state power, they are able to treat some offenses as merely forbidden, rather than as evil—as mala prohibita rather than mala in se. The contrast with the United States is strong: our liberal, antistatist tradition leads us to conclude that nothing may be forbidden by the state unless it is evil; otherwise the state would have no right to forbid us to do it. …In consequence we have a harder time than Europeans do thinking of some acts as not permitted, but nevertheless not terribly serious.” The converse might also be true: We have a hard time of thinking of some acts as terribly serious but not already forbidden.