Topic: Law and Civil Liberties

Lobbying Reform Reformed

The Politico offers an article about House Democrats and their effort to legislate about lobbying. The Senate passed a lobbying bill in January.

The road to the Senate bill included a struggle over the disclosure of funding for grassroots lobbying. Groups like the National Rifle Association or the National Right to Life Committee sometimes pay firms to communicate with citizens and urge them to contact their members of Congress on issues of concern to the group. The usual “reform groups” wanted the Senate to force disclosure of the sums spent mobilizing public opinion in this way. The Senate left disclosure out of their bill.

The effort to mandate disclosure resumed when the House took up lobbying reform. We held a forum on the topic that can be seen here. It now appears that the mandated disclosure will not appear in House version of the bill though it may be offered as an amendment.

The grassroots lobbying disclosure effort looked a lot like normal politics. The new majorities in Congress were (on the whole) Democratic and liberal, the groups that would be forced to disclosure their political activities were (on the whole) Republican and conservative. The new powers-that-be were apparently looking at ways to harass and perhaps discourage speech they did not like. As I said, normal politics.

Why has mandated disclosure apparently failed? A leader of one of the targeted groups told me that she hoped Speaker Pelosi would include the mandate in the lobbying reform bill. This leader believed the Speaker and her party would end up with a political black eye from the fight. Perhaps Speaker Pelosi agreed in the end.

For now, at least.

The White House Privacy Board Hasn’t Gotten Everything Right

In a recent post, I lauded the White House Privacy Board for its use of an analytical framework similar to the one I helped produce for the DHS Privacy Committee. It wasn’t a total endorsement, and I covered my … tracks by saying, “This doesn’t mean the White House Privacy Board has gotten everything right, of course. I have no doubt that they could have done better.”

Someone else shares that view, someone who should know. Lanny Davis, the lone Democrat on the Board, has resigned. Newsweek reports that he complains of “substantial” edits of the board’s report in his resignation letter.

Davis charged that the White House sought to remove an extensive discussion of recent findings by the Justice Department’s inspector general of FBI abuses in the uses of so-called “national security letters” to obtain personal data on U.S. citizens without a court order. He also charged that the White House counsel’s office wanted to strike language stating that the panel planned to investigate complaints from civil liberties groups that the Justice Department had improperly used a “material witness statute” to lock up terror suspects for lengthy periods of time without charging them with any crimes.

I am not a bit surprised. Serving as I do on a similar board, I am keenly aware of the pressures to conform the group’s findings to the prevailing view at the sponsoring agency. So far, the DHS Privacy Committee has been pretty good at resisting that, but it is not fully independent by any stretch.

This all is a reminder: Privacy will never be protected by government-constituted boards or officials. It is a product of individuals having the power to control information about themselves and exercising that control consistent with their interests and values. Don’t ever think you’ve got privacy because there is a White House Privacy Board or a DHS Privacy Committee.

As If Canada Were a Separate Country

Jim Harper adequately documents (1) how the State Department is bungling my wife’s application for a new passport, which one now needs to fly to Montreal (for some reason), and (2) my appeal to the opposite sex. 

I would add only that, while David Boaz is correct that a fence between the U.S. and Mexico is not exactly Berlin Wall-esque (“The Berlin Wall was designed to keep citizens in”), this bone-headed rule that one cannot fly to Canada without a passport might be: it actually does make it more difficult for American citizens to leave.

Landlords Drafted into War on Illegal Immigration

A couple of weeks ago, I testified in the House Immigration Subcommittee on the difficulties with, and undesirability of, a national employment verification system. Beyond some costly and inconvenient, bleeding-edge tech solutions, there’s no way to confirm on a mass scale that people are legally entitled to work under our immigration law - not without putting a national ID in the hands of every American.

I observed that such a system, once built, wouldn’t be restricted to employment, but would naturally expand:

Were an electronic employment verification system in place, it could easily be extended to other uses. Failing to reduce the “magnet” of work, electronic employment verification could be converted to housing control. Why not require landlords and home-sellers to seek federal approval of leases and sales so as not to give shelter to illegal aliens? Electronic employment verification could create better federal control of financial services, and health care, to name two more.It need not be limited to immigration control, of course. Electronic verification could be used to find wanted murderers, and it would move quickly down the chain to enforcement of unpaid parking tickets and “use taxes.” Electronic employment verification charts a course for expanded federal surveillance and control of all Americans’ lives.

Now comes news that a suburb of Dallas has become the first in the nation to prohibit renting to illegal immigrants. It requires apartment managers to verify that renters are U.S. citizens or legal immigrants before leasing to them.

A policy like this doubles-down on the error of enlisting employers into immigration law enforcement, and it shows how immigration law creates pressure to expand domestic surveillance. “The policy that will dissipate the need for electronic verification by fostering legality is aligning immigration law with the economic interests of the American people. Legal immigration levels should be increased,” I testified.

But you knew that if you’ve been following this stuff.

Congress Moves against NSA Spying

Ars Technica reports that an amendment to the FY 2008 Intelligence Authorization Act “upholds the 1978 Foreign Intelligence Surveillance Backed (FISA) as the only means by which to do electronic surveillance—and … requires continuous judicial oversight of requests.”

Divided government is a real boon.

Google on Anonymizing Server Logs

Here’s Google’s Global Privacy Counsel Peter Fleischer discussing in more detail Google’s recent laudable decision to anonymize its server logs after 18-24 months. The discussion helps illustrate the diverse interests that must be balanced in choosing how long to maintain information.

It’s often easy to disregard the value that deep wells of raw information have for information-based business. Fleischer explains some of how Google makes use of data to improve its services and protect users. These consumer-beneficial activities must be balanced against the background demand for privacy protection.

Of particular note, of course, is his discussion of the emerging government demands for data retention (some of which conflict with government demands for data destruction). Data retention mandates are outsourced government surveillance, neatly shifting the cost of surveillance to the private sector while avoiding limits on government action like the Fourth Amendment and Privacy Act (in the case of the U.S.). Too put a fine point on it, data retention is bad.

This explication of Google’s thinking is a welcome contribution to public understanding. I did get a little chirping on my B.S. detector where Fleischer says he had talked to privacy activists in developing their plans. I’d like to know which ones. It’s a small enough community that I figure I would have known about it (I say at the risk of sounding self-important).

I’ve been aware in the past of government agencies deluding themselves about taking privacy into consideration because they’ve heard from government contractors selling “privacy enhancing technologies” like immutable audit logs and such. As often as not, this stuff is lipstick on a pig - seeking to make bad surveillance programs acceptable by tacking on complex, fallible privacy protections.

I’m sure Google has done better than that in its consultations with privacy experts. At least, I hope I’m sure.

A Seam Opens …

An oft-repeated scene in the Washington, D.C. kabuki dance recently began with the release of former CIA director George Tenet’s memoir At the Center of the Storm: My Years at the CIA.

I don’t find it particularly interesting to watch a mighty ego defend his honor — mighty egos in the U.S. government are as common as pigeons in the park. (It has to be that way, doesn’t it? Only an inflated ego thinks it can run a government as overlarge as ours.) But I’m pleased by the healthy airing of differences the book has spawned.

This morning in the Washington Post, Richard Perle takes after Tenet about factual inaccuracies in the book. (Puffing pigeons.) The rift starts to reveal some important, but long overlooked, information.

Perle writes, “the CIA failed to make our leaders aware of the rise of Islamist extremism and the immense danger it posed to the United States.” An example I would offer is the presence of Nawaf al-Hazmi and Khalid al-Mihdhar inside the United States — terrorists linked to the USS Cole bombing. Of al-Mihdar, the 9/11 Commission reported, “No one was looking for him.” The story is recounted in brief in my Cato Policy Analysis (with Jeff Jonas) Effective Counterterrorism and the Limited Role of Predictive Data Mining.

A conclusion of that paper: “In the days and months before 9/11, new laws and technologies like predictive data mining were not necessary to connect the dots. What was needed to reveal the remaining 9/11 conspirators was better communication, collaboration, a heightened focus on the two known terrorists, and traditional investigative processes.”

As U.S. government officials turn against each other, they help reveal that their agreement to turn against us — in the USA-PATRIOT Act, domestic spying, and myriad other laws and programs — was a salve for those wounded egos. They didn’t want to admit that they outright missed the 9/11 attacks.