Archives: May, 2012

On Breach of Decorum and Government Growth

By
Jim Harper

Last week, the Center for Democracy and Technology changed its position on CISPA, the Cyber Intelligence Sharing and Protection Act, two times in short succession, easing the way for House passage of a bill profoundly threatening to privacy.

Declan McCullagh of C|Net wrote a story about it called “Advocacy Group Flip-Flops Twice Over CISPA Surveillance Bill.” In it, he quoted me saying: “A lot of people in Washington, D.C. think that working with CDT means working for good values like privacy. But CDT’s number one goal is having a seat at the table. And CDT will negotiate away privacy toward that end.”

That comment netted some interesting reactions. Some were gleeful about this “emperor-has-no-clothes” moment for CDT. To others, I was inappropriately “insulting” to the good people at CDT. This makes the whole thing worthy of further exploration. How could I say something mean like that about an organization whose staff spend so much time working in good faith on improving privacy protections? Some folks there absolutely do. This does not overcome the institutional role CDT often plays, which I have not found so creditable. (More on that below. Far below…)

First, though, let me illustrate how CDT helped smooth the way for passage of the bill:

Congress is nothing if not ignorant about cybersecurity. It has no idea what to do about the myriad problems that exist in securing computers, networks, and data. So its leaders have fixed on “information sharing” as a panacea.

Because the nature and scope of the problems are unknown, the laws that stand in the way of relevant information sharing are unknown. The solution? Scythe down as much law as possible. (What’s actually needed, most likely, is a narrow amendment to ECPA. Nothing of the sort is yet in the offing.) But this creates a privacy problem: an “information sharing” bill could facilitate promiscuous sharing of personal information with government agencies, including the NSA.

On the House floor last week, the leading Republican sponsor of CISPA, Mike Rogers (R-MI), spoke endlessly about privacy and civil liberties, the negotiations, and the process he had undertaken to try to resolve problems in the privacy area. At the close of debate on the rule that would govern debate on the bill, he said:

The amendments that are following here are months of negotiation and work with many organizations—privacy groups. We have worked language with the Center for Democracy and Technology, and they just the other day said they applauded our progress on where we’re going with privacy and civil liberties. So we have included a lot of folks.

You see, just days before, CDT had issued a blog post saying that it would “not oppose the process moving forward in the House.” The full text of that sentence is actually quite precious because it shows how little CDT got in exchange for publicly withdrawing opposition to the bill. Along with citing “good progress,” CDT president and CEO Leslie Harris wrote:

Recognizing the importance of the cybersecurity issue, in deference to the good faith efforts made by Chairman Rogers and Ranking Member Ruppersberger, and on the understanding that amendments will be considered by the House to address our concerns, we will not oppose the process moving forward in the House.

Cybersecurity is an important issue—nevermind whether the bill would actually help with it. The leadership of the House Intelligence Committee have acted in good faith. And amendments will evidently be forthcoming in the House. So go ahead and pass a bill not ready to become law, in light of “good progress.”

Then CDT got spun.

As McCullagh tells it:

The bill’s authors seized on CDT’s statement to argue that the anti-CISPA coalition was fragmenting, with an aide to House Intelligence Committee Chairman Mike Rogers (R-Mich.) sending reporters e-mail this morning, recalled a few minutes later, proclaiming: “CDT Drops Opposition to CISPA as Bill Moves to House Floor.” And the Information Technology Industry Council, which is unabashedly pro-CISPA, said it “applauds” the “agreement between CISPA sponsors and CDT.”

CDT quickly reversed itself, but the damage was done. Chairman Rogers could make an accurate but misleading floor statement omitting the fact that CDT had again reversed itself. This signaled to members of Congress and their staffs—who don’t pay close attention to subtle shifts in the views of organizations like CDT—that the privacy issues were under control. They could vote for CISPA without getting privacy blow-back. Despite furious efforts by groups like the Electronic Frontier Foundation and the ACLU, the bill passed 248 to 168.

Defenders of CDT will point out—accurately—that it argued laboriously for improvements to the bill. And with the bill’s passage inevitable, that was an essential benefit to the privacy side.

Well, yes and no. To get at that question, let’s talk about how groups represent the public’s interests in Washington, D.C. We’ll design a simplified representation game with the following cast of characters:

  • one powerful legislator, antagonistic to privacy, whose name is “S.R. Veillance”;
  • twenty privacy advocacy groups (Groups A through T); and
  • 20,000 people who rely on these advocacy groups to protect their privacy interests.

At the outset, the 20,000 people divide their privacy “chits”—that is, their donations and their willingness to act politically—equally among the groups. Based on their perceptions of the groups’ actions and relevance, the people re-assign their chits each legislative session.

Mr. Veillance has an anti-privacy bill he would like to get passed, but he knows it will meet resistance if he doesn’t get 2,500 privacy chits to signal that his bill isn’t that bad. If none of the groups give him any privacy chits, his legislation will not pass, so Mr. Veillance goes from group to group bargaining in good faith and signaling that he intends to do all he can to pass his bill. He will reward the groups that work with him by including such groups in future negotiations on future bills. He will penalize the groups that do not by excluding them from future negotiations.

What we have is a game somewhat like the prisoner’s dilemma in game theory. Though it is in the best interest of the society overall for the groups to cooperate and hold the line against a bill, individual groups can advantage themselves by “defecting” from the interests of all. These defectors will be at the table the next time an anti-privacy bill is negotiated.

Three groups—let’s say Group C, Group D, and Group T—defect from the pack. They make deals with Mr. Veillance to improve his bill, and in exchange they give him their privacy chits. He uses their 3,000 chits to signal to his colleagues that they can vote for the bill without fear of privacy-based repercussions.

At the end of the first round, Mr. Veillance has passed his anti-privacy legislation (though weakened, from his perspective). Groups C, D, and T did improve the bill, making it less privacy-invasive than it otherwise would have been, and they have also positioned themselves to be more relevant to future privacy debates because they will have a seat at the table. Hindsight makes the passage of the bill look inevitable, and CDT looks all the wiser for working with Sir Veillance while others futilely opposed the bill.

Thus, having defected, CDT is now able to get more of people’s privacy chits during the next legislative session, so they have more bargaining power and money than other privacy groups. That bargaining power is relevant, though, only if Mr. Veillance moves more bills in the future. To maintain its bargaining power and income, it is in the interest of CDT to see that legislation passes regularly. If anti-privacy legislation never passes, CDT’s unique role as a negotiator will not be valued and its ability to gather chits will diminish over time.

CDT plays a role in “improving” individual pieces of legislation to make them less privacy-invasive and it helps to ensure that improved—yet still privacy-invasive—legislation passes. Over the long run, to keep its seat at the table, CDT bargains away privacy.

This highly simplified representation game repeats itself across many issue-dimensions in every bill, and it involves many more, highly varied actors using widely differing influence “chits.” The power exchanges and signaling among parties ends up looking like a kaleidoscope rather than the linear story of an organization subtly putting its own goals ahead of the public interest.

Most people working in Washington, D.C., and almost assuredly everyone at CDT, have no awareness that they live under the collective action problem illustrated by this game. This is why government grows and privacy recedes.

In his article, McCullagh cites CDT founder Jerry Berman’s role in the 1994 passage of CALEA, the Communications Assistance to Law Enforcement Act. I took particular interest in CDT’s 2009 backing of the REAL ID revival bill, PASS ID. In 2006, CDT’s Jim Dempsey helped give privacy cover to the use of RFID in identification documents contrary to the principle that RFID is for products, not people. A comprehensive study of CDT’s institutional behavior to confirm or deny my theory of its behavior would be very complex and time-consuming.

But divide and conquer works well. My experience is that CDT is routinely the first defector from the privacy coalition despite the earnest good intentions of many individual CDTers. And it’s why I say, perhaps in breach of decorum, things like: “A lot of people in Washington, D.C. think that working with CDT means working for good values like privacy. But CDT’s number one goal is having a seat at the table. And CDT will negotiate away privacy toward that end.”

Topics: 
Telecom, Internet & Information Policy

‘Gutting’ Our Military

By
Christopher A. Preble

According to Sen. Jim Inhofe (R-OK): President Obama’s “trip to Afghanistan is an attempt to shore up his national security credentials, because he has spent the past three years gutting our military.”

You decide: From National Defense (050) outlays, in billions of constant 2012 dollars:

  • 2009 - $696
  • 2010 - $715
  • 2011 - $716
  • 2012 (projected) - $716

The chart below shows the full context of Inhofe’s remarks.

During the Reagan years (1981-1989), national defense outlays averaged $493 billion. George W. Bush averaged $543 billion. And the post-Cold War average, 1991-2012, is $522 billion per year.

Topics: 
Foreign Policy and National Security

Unlawful Presence Waivers Are Not Amnesty

By
Alex Nowrasteh

Under current law unauthorized immigrant spouses or children of U.S. citizens can gain lawful permanent residency (LPR) status if they return to their home country to apply at a U.S. consulate or embassy. The Catch-22 is that unauthorized immigrants who have lived here are barred from returning for up to ten years once they leave the U.S. The immigrant has to apply for an unlawful presence waiver to remove the bar, a process that could take up to 28 months, including appeals, separating the immigrant from his U.S. family in the mean time. Consequently, many unauthorized immigrants who could regularize their status do not take this opportunity.

The government is now asking for comments on a proposed rule change that would close part of that administrative Catch-22. Under the proposed rule an unauthorized immigrant could apply for and adjudicate the waiver before departing for interviews in consulates abroad, shortening the separation time between the immigrant and his family. Half of waivers are approved in seven days at the American consulate in Ciudad Juarez, Mexico. The other half can take years.

The waiver removes the bar on returning if the immigrant can show that “being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship.” Extreme hardship only applies to the migrant’s U.S. citizen spouse or parent, not to the immigrant himself or his U.S.-citizen children. Extreme hardship is determined by USCIS bureaucrats where relevant factors include the intensity of family ties, health, age, financial impact, and country conditions. Financial problems and the normal hardship of familial separations are not, by themselves, sufficient reasons to grant a waiver.

Even with those strict legal requirements, thousands of people could have their immigration status legalized. The proposed rule change doesn’t go far enough. A better legislative change would remove the bar on reentry for unauthorized immigrants who are married to a U.S. citizen, obviating the need for a waiver entirely. Limiting it to spouses would not provide an incentive for unauthorized immigrants to have children in the U.S. to claim future LPR status through their children’s citizenship, not that there is a problem with that but some might object. This change would preserve the spirit and intent of our restrictive immigration laws while allowing many to regularize their status. Ted Alden of the Council on Foreign Relations thinks that up to a million unauthorized immigrants could regularize their immigration status if a rule change along those lines was proposed.

The government’s rule change is not an amnesty as some commentators claim. It would streamline a costly bureaucratic process for people who can already apply for LPR status and diminish the number of unauthorized immigrants without placing additional costs on the government. Sounds like a pretty good deal to me.

Topics: 
Law and Civil Liberties, Trade and Immigration

Should Government Fund the Arts?

By
David Boaz

The New York Times asks how “we” should fund the arts, suggesting for instance a 1.5 percent payroll tax, as they have in Brazil. I answered a slightly different question:

What do art, music, and religion have in common? They all have the power to touch us in the depths of our souls. As one theater director said, “Art has power. It has the power to sustain, to heal, to humanize … to change something in you. It’s a frightening power, and also a beautiful power….And it’s essential to a civilized society.”

Which is precisely why art, music, and religion should be kept separate from the state.

Full column here. More writing on the separation of arts and state here.

Topics: 
Government and Politics, Tax and Budget Policy

Security Pact Ensures America’s Presence in Afghanistan

By
Malou Innocent

President Obama’s arrival in Afghanistan and signing of the strategic partnership agreement with President Karzai supposedly represents yet another corner turned in our nearly eleven year (and counting) war. The commander-in-chief’s arrival in secrecy, under darkness, and without live coverage of the signing is reminiscent of Bush the Younger’s many trips to war-torn Iraq and displays just how bad security is in Afghanistan. Indeed, despite the administration’s talk about drawing-down, the strategic partnership agreement signed today in Kabul extends Washington’s military and financial support to the endemically corrupt Karzai regime well beyond 2014.

The Taliban’s most powerful narrative is that foreigners are occupying Afghanistan and supporting its corrupt centralized government. That is more than mere propaganda. It is reality. Transparency International was correct—save for North Korea and Somalia, Afghanistan is the most corrupt country in the world. The Karzai cartel and its band of thugs and warlords are the embodiment of social injustice. The nation-building mission in Afghanistan is a failure not of democracy promotion, but the result of bringing injustice and crony capitalism to a desperate and war-ravaged people.

As America climbs out of the worst financial crisis in a generation, the American people pour tens of billions a year into a poverty-stricken narco-state—according to the late-Richard Holbrooke—while the Karzais and their cronies build mansions in Dubai. The American people’s hard-earned tax dollars are funding Afghanistan’s “1%.” As I said last week about the agreement, it is nation building by another name. The American people have come to realize that the nation-building mission in Afghanistan is a needless waste of blood and treasure and unnecessary for our vital security interests. U.S. officials should recognize this and expedite our withdrawal, rather than continue to tread water in a desperate attempt to stave off disaster.

A senior administration official today warned of repeating the mistake of allowing the Taliban to reemerge in Afghanistan. In the process, however, the United States is repeating a mistake that experts contend helped to contribute to the devastating terrorist attacks of September 11, 2001: unwavering economic support and political cover to the Muslim world’s most corrupt and illegitimate regimes. Some will argue that America has a moral obligation to prevent the reemergence of reprehensible groups like the Taliban. But America never made a substantive policy shift toward or against the Taliban’s misogynistic, oppressive and militant Islamic regime when it controlled Afghanistan in the 1990s. Thus, the present moral outrage against the group can be interpreted as opportunistic. Sadly, Washington’s current embrace of the kleptocratic Karzai regime not only contradicts the basic moral principles that America purports to impose on the rest of the world, but also does little to advance our security, drives foreigners to commit terrorist acts, and is detrimental to our long-term goal of advancing our country’s most cherished values.

Topics: 
Foreign Policy and National Security

Obama Visits Afghanistan, Perpetuates Misguided Policy

By
Christopher A. Preble

President Obama’s surprise visit to Afghanistan shows that he is determined to use the bin Laden killing to his political advantage. He also hopes to win points for ending two unpopular wars.

That is understandable. If nothing else, it allows him to draw distinctions between both his predecessor, who failed to find bin Laden, and the eventual GOP nominee, Mitt Romney, who argues against withdrawing U.S. troops from Afghanistan.

But the policy that President Obama is pursuing in Afghanistan is still at odds with what most Americans desire. The strategic partnership agreement signed by Obama and President Hamid Karzai embodies this policy.  He chose to expand the U.S. presence in Afghanistan in 2009, and will now draw down to levels at or near those when he took office. That doesn’t go far enough: a majority of Americans want all U.S. troops out of Afghanistan within a year, and a large-scale military presence isn’t needed to continue to hunt al Qaeda. The organization is a shadow of its former self, and has shifted its operations and tactics to many other places. We are still spending tens of billions of dollars in a desperate nation-building mission; this money could be spent much more effectively elsewhere, including here in the United States.

Moreover, President Obama lacks the authority to make the promises that he has extended to the Afghan government and people. For example, he pledges to leave some unspecified number of troops in the country until well past the end of his second term (if there is a second term), but Congress determines funding for overseas military operations, including troop deployments, and there is no reason to believe that future Congresses (or future presidents) will feel bound by Barack Obama’s promises.

After 9/11, the American people rightly demanded that the U.S. government hunt down Osama bin Laden, and perhaps even to move heaven and earth to do it. It made sense to punish al Qaeda and degrade the organization’s ability to carry out another attack. Those tasks have been fulfilled. The mission of preventing the Taliban from rising again in Afghanistan is a hopelessly quixotic crusade, and one that we would be wise to abandon.

Topics: 
Foreign Policy and National Security

Senate Postal Reform Bill

By
Tad DeHaven

The postal reform bill passed in the Senate last week is further evidence that politicians shouldn’t be entrusted with running a hotdog stand, let alone the nation’s mail. The U.S. Postal Service is supposed to operate like a business, but congressional micromanagement makes that impossible. Nevertheless, 62 senators voted for an eye-glazing 191-page bill that would keep Congress’s hand placed firmly around the USPS’s neck.

Here’s a summary from the Washington Post:

The bipartisan measure passed 62 to 37 and would give the Postal Service nearly $11 billion to offer buyouts and early retirement incentives to hundreds of thousands of postal workers and to pay off its debts…The measure also would permit the end of Saturday mail deliveries in two years, only after USPS determines it is financially necessary. The Postal Service also could move forward with plans to shutter thousands of post offices and hundreds of mail distribution centers — but senators placed several restrictions on when, where and how outposts in rural communities could be closed. The bill also modifies mail service standards to ensure that the Postal Service preserves the overnight delivery of mail sent to nearby communities, but allows USPS to slow the delivery of mail destined for destinations farther away…

Senators have worked for more than a year to give USPS the ability to set postage rates and delivery schedules and to determine the fate of unprofitable post offices free of congressional intervention, but senators eager to protect home-state interests added several restrictions. They agreed to strengthen the appeals process for customers opposed to closing a post office; to force USPS to wait until after Election Day to close postal facilities in states that permit voting by mail; and to permit the Postal Service to co-locate post offices in government-owned buildings to save space and money. Senators also approved a plan that forbids the Postal Service from closing a rural post office unless the next-nearest location is no more than 10 miles away.

Over at the leftish Mother Jones, Kevin Drum lists the bill’s “reforms” and concludes that “We are ruled by idiots.” Drum’s beef is that the bill doesn’t make it easier for the USPS to increase prices to generate more revenue. There are arguments for and against higher postal prices, but the fundamental problem—in my opinion—is that prices are set by the government instead of market forces. It is impossible to know what the appropriate prices for postal services should be in the absence of a competitive marketplace for mail. Similarly, Congress dictates that mail be delivered six days a week. Why in the 21st Century must practically every home in the country receive mail six days a week? Again, allow market forces to decide how often people receive mail. Perhaps some people would be willing to pay to receive mail seven days a week. Or three days. Or no days. Instead, we remain stuck with the one-size-fits all government approach that reflects parochial and political, rather than economic and financial, considerations.

As for Drum’s conclusion, I’ll leave that up to readers to decide. I will say that this video of Sen. Tom Carper (D-DE), one of the bill’s sponsors, making the case for using wind farms to power a new fleet of battery-operated USPS delivery vehicles doesn’t help:

Topics: 
Tax and Budget Policy

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