Archives: June, 2008

Fusion Centers in Search of a Problem

Via Secrecy News: “There is, more often than not, insufficient purely ‘terrorist’ activity to support a multi-jurisdictional and multi-governmental level fusion center that exclusively processes terrorist activity.” This is from a Naval Postgraduate School master’s thesis entitled: “An Examination of State and Local Fusion Centers and Data Collection Methods.”

Though they arose to counter the terrorism threat, “fusion centers” will seek out other things to do. Programs like these are born of slogans - “connect the dots” - “information sharing” - rather than sound security thinking. In a TechKnowledge piece last year titled, “Fusion Centers: Leave ‘Em to the States,” I juxtaposed the active fusion center in Massachusetts with the hair-on-fire overreaction of the Boston Police to a guerrilla marketing campaign featuring stylized Lite-Brites.

No Need for a General Election; Obama Already Has Mandate

An article [$] today in CongressDaily AM outlines the plans of trade-skeptic congressional Democrats wishing to formalize that “time-out” on trade we’ve heard so much about during the Democratic primary campaign.

A bill introduced yesterday (H.R 6180 and its companion S.3083) would slow down the process of approving new trade agreements by requiring the GAO to review existing agreements and judge them not, as logic would seem to dictate, according to the standard of increasing trade, but against the domestic policy standards contained in the bill:

The bill would require GAO to review existing trade deals by June 10, 2010, and an analysis of how the deals stack up against labor, environmental and safety standards enumerated in the bill.

If gaps are found by GAO, the president would be required to submit renegotiation plans for current trade pacts before negotiating new ones and congressional consideration of pending trade pacts. Committees of jurisdiction would then review the renegotiation plans.

According to congressional Democrats, Senator Obama’s win in the Democratic primary is justification enough for introducing a bill that mirrors his plans. Those plans include, yes, loading up trade agreements with possibly deal-killing standards and, at least judging by Senator Obama’s voting record so far, very little new trade liberalization (details here).

If that sounds like a bad idea, it is music to the ears of some members of Congress. Here’s a quote from Rep. Michael Michaud (D, ME):

“I feel very comfortable with Sen. Obama’s position on trade; he understands the devastation that trade has caused to the American people and how flawed these trade deals are.”

We at Cato’s Center for Trade Policy Studies would refute that. Strenuously.

Just Say No to Legislation by Treaty

I’ve written before about the growing problem of trade agreements being hijacked for the benefits of domestic special interest groups, especially the copyright lobby. Free trade is about making it easier for goods to flow across borders. In recent years, we’ve seen an increasing abuse of trade negotiators’ authority, as they’ve inserted provisions into trade agreements requiring the parties to enact extremely specific changes to their domestic copyright laws.

Copyright scholar William Patry raises the alarm about another attempt by the United States Trade Representative to skirt the domestic legislative process with a treaty called the Anti-Counterfeiting Trade Agreement. The details are secret, but it appears that the agreement will cover much more than trade and counterfeiting issues. Patry explains why we should be concerned:

USTR is in the driver’s seat in initiating and negotiating agreements that are cast as trade agreements, but which are in fact agreements fundamentally reshaping substantive IP law. No trade official in any country, no matter how well intentioned, should have that authority. In the U.S., the power to make copyright policy vests exclusively in the Congress. We do not want our trade representatives to negotiate on their own agreements that require changes in domestic copyright laws and then present the agreement after signature to the legislature as a fait d’accompli.

Use of the fait d’accompli is not limited to trade representatives, and is seen in other executive branch agencies. The DMCA is an example of an attempted fait d’accompli. Much to the chagrin of its proponents, the DMCA ended up being only passed after considerable hearings and congressional involvement, in large part due to the fact that the Administration, in that instance through the PTO, did not get everything it wanted from other countries in the 1996 WIPO treaties, and hence couldn’t completely rely on the fait d’accompli argument. Had it been able to do so the story would have been different, and that is what the ACTA process is intended to achieve, a result that legislatures will have to accept, unless they are willing to permit the country to be in conflict with an important trade agreement.

I couldn’t agree more. The issue here is not that the particular copyright provisions are bad policy, although I suspect they are. The issue is that the Constitution vests Congress, not the executive branch, with authority to make laws. Congress should jealously guard that authority. At a minimum, it should demand public disclosure of the terms of the treaty well before it’s signed, so that there’s time for Congressional hearings and democratic debate about its provisions. And Congress should send a clear signal that it won’t ratify a treaty that’s negotiated in secret and sprung on the Congress at the last minute. Mike Masnick is absolutely right that this issue should be getting a lot more attention from American media.

An E-Verify Triple: That’s a De-De-Debunker

Department of Homeland Security Assistant Secretary for Policy Stewart Baker has weighed in with another post on the DHS “Leadership Journal” blog about the E-Verify system for conducting federal immigration background checks on all people hired in the United States. He takes on three supposed myths about E-Verify.

Myth 1: That E-Verify is burdensome for employers.

Baker says that E-Verify is a bit less burdensome than ordering books for the first time on Amazon.com. It would be fun to actually run that test. But just for starters, here’s the 600-word form you have to read and fill out before you even register as an employer. The word count of the Memorandum of Understanding you have to read and sign is well over 3,000 words - eight pages of legalistic instructions. Jeff Bezos! Call your bankruptcy lawyer!

Buying a book from Amazon.com doesn’t require you to check someone else’s documents, doesn’t put you at risk of violating federal law, and so on, and so on. These just aren’t comparables.

Baker’s most interesting evidence? An anonymous commenter on one of his earlier posts who just gushes about E-Verify. In fact, the first two comments on that post - both anonymous - come within nine minutes of each other. One praises E-Verify’s ease of use. The other comes from the “worker” perspective - just like a PR flack would want to have covered. Here’s the actual quote: “This E-verify system will let you know if you have a mistake that you need to correct before it is just too late for you!” So very like an infomercial …

But let’s cut to the chase: Regulators in agencies across the federal government are constantly coming with burdens on employers. Oh, they claim that each one is wafer thin, yes. But the cumulative results are disgusting.

Myth, the second: That E-Verify is discriminatory.

Critics “conjure up evil employers who disfavor certain ethnic groups when they apply government hiring rules,” says Baker. That’s not quite it. Unfortunately, rational employers would disfavor certain ethnic groups. Here’s how I put it in my paper “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration”:

With illegal immigrants today coming predominantly from Spanish-speaking countries south of the U.S. border, identity fraud and corruption attacks on the EEV system would focus largely on Hispanic surnames and given names. Recognizing that Hispanic employees—even native-born citizens—are more often caught up in identity fraud and tentative nonconfirmation hassles, employers would select against Hispanics in their hiring decisions.

But this is against the rules, protests Baker. And it’s true that the program’s rules forbid this behavior. But Baker is thinking quite a bit like the economist in this old joke:

An economist, a physicist, and an engineer are trapped on a desert island and all they have to eat is a can of baked beans. The engineer first tries to open the can by putting at an angle to the sun to try and burn a hole in it. That doesn’t work. So the physicist gets a rock and does some calculations as to how much force he would have to hit the can with to get it open. No luck. Finally, the economist turns to them both and says, “You’re doing it all wrong! What we need to do is assume we have a can opener …”

“If there are rules against it, it won’t happen.” Friends, avoid South Seas adventures with economist Stewart Baker.

Myth 3: That E-Verify does nothing about identity theft.

E-Verify does something about identity theft. You have to have a matching name and Social Security Number pair to get through the system. That makes defrauding employers harder. It will also make identity theft more profitable and more common if E-Verify goes national. Again, from my paper:

Faced with the alternative of living in poverty and failing to remit wealth to their families, illegal immigrants would deepen the modest identity frauds they are involved in today. Their actions would draw American citizens, unfortunately, into a federal bureaucratic identity vortex.

But Baker is talking about in-system fraud, and the idea of accumulating more biometric information into a national identity system. Currently, a “photo screening tool” in E-Verify shows employers the picture that was printed on DHS-issued permanent resident cards and employment authorization documents. This suppresses forgery of cards, while it may lull employers into checking the card against the computer screen - not against the worker. Whatever the case, DHS is seeking access to passport photos from the State Department and driver license photos from state governments across the country so that it can knit together a national biometric database. (Pictures are biometrics - relatively crude ones, of course. When having a picture database fails to secure against illegal immigration, they’ll move to stronger ones.)

Baker is exaggerating to say that the photo screening tool is a significant step in countering identity fraud. It’s only in very limited use, the system itself would promote identity fraud, and countering identity fraud this way requires a national biometric database, with all the privacy ills that entails. This is why we wouldn’t want E-Verify even if it was ready for prime-time.

Three myths debunked? Or three debunkings de-debunked? Secretary Baker’s commentaries are welcome because they illustrate key points of disagreement, allowing you, the American public, a fuller view into the issues at stake.

A Police State Takes Hold in Venezuela

Many people expected that after his painful electoral defeat in the constitutional referendum last year, Hugo Chávez was going to stop his systematic assault against democracy and civil liberties in Venezuela.

Last week, he decreed a new intelligence law (no need for a National Assembly here) that basically turns Venezuela into a police state. The new law requires that people:

“… comply with requests to assist the agencies, secret police or community activist groups loyal to Mr. Chávez. Refusal can result in prison terms of two to four years for most people and four to six years for government employees.”

The law also stipulates that the police agencies can conduct surveillance activities on the population, like wiretapping, without a warrant. Furthermore, the authorities can deny access to evidence to defendant lawyers under the grounds of “national security.”

It’s interesting how people sympathetic to Chávez around the world, but particularly in Latin America, call anyone who criticizes their beloved leader a “fascist.” They fail to recognize that many of his policies, especially laws like this one, have fascism written all over them.

Freedom Is Diversity …

… in the communications world.

This recent TechKnowledge article by James Plummer makes the case for more freedom in the use of the radio spectrum. This will bring more voices to the media marketplace, fostering competition and diversity in ideas and culture.

“Low-Power FM: Freedom is Diversity” concludes: “The FCC and Congress are both poised to further open up the FM spectrum. Both should ignore the pleadings of special interests on all sides as they do so. “

Privacy Legislation vs. Google’s Homepage

Google stands accused of violating the California Online Privacy Protection Act of 2003, which requires Web sites and online services to “conspicuously post” their privacy policies.

It’s obvious to some that this requires Google to have a link on its homepage to its privacy policy, but the law says that online service providers can use “any other reasonably accessible means of making the privacy policy available for consumers of the online service.” In the case of Google, one might consider … a search?

But I think this little episode has a deeper lesson. It reveals the thoroughgoing incapacity of lawmakers and advocates to be social engineers. Linking to privacy policies on home pages was an experiment that failed long ago. People don’t read them. People who are interested in reading them can find them so long as they’re placed sensibly somewhere on a Web site.

In their voluntary transactions, if people want privacy, they’re gonna seek it (and, though it’s tough, often get it); if they’re indifferent, they’re not. Mandated privacy notices – especially the placement of them – are a sideshow.