Topic: Law and Civil Liberties

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.

Supreme Court Rules on Money Laundering

Interesting voting pattern in a Supreme Court ruling today.  Instead of the usual conservative & liberal voting blocs, we find Scalia, Thomas, Ginsburg, Souter, and Stevens in the majority–while Breyer, Kennedy, Alito and Roberts dissent.

The case is called United States v. Santos and the issue was how to interpret the term “proceeds” in the federal money laundering statute.  The case was easy and should have been unanimous.  When a term in a criminal law is unclear, the defendant should get the benefit of the doubt, not the rule-making, rule-enforcing state.  That’s a legal doctrine called the “rule of lenity.”  Unfortunately, the Supremes do not apply that rule consistently.  Happily, the Court reached the correct outcome today.  Here’s the money quote from Scalia: “When interpreting a criminal statute, we do not play the part of a mind reader.”  The “we” in that sentence referred to the justices.  But that goes double for the individuals & business firms that are regulated by vague federal regulations.

The newest justices, Alito and Roberts, are showing their pro-state tendencies again. 

Only in England

Bureaucrats in the United Kingdom must be getting jealous that their French counterparts are getting all the attention, so they have gone above and beyond the call of duty to demonstrate unparalleled government stupidty. Security officials at Heathrow Airport barred a man from flying until he removed a t-shirt with an image of an armed robot. The Evening Standard (not The Onion) reports:

An airline passenger claimed that a security guard threatened to arrest him because he was wearing a T-shirt showing a cartoon robot with a gun. Brad Jayakody, 30, from London, said he was stopped from passing through security at Heathrow’s Terminal 5 after his Transformers T-shirt was deemed ‘offensive.’ …Mr Jayakody said the first guard started joking with him about the Transformers character depicted on his French Connection T-shirt. ‘ “Then he explains that since Megatron is holding a gun, I’m not allowed to fly,’ he said. ‘It’s a 40ft tall cartoon robot with a gun as an arm. There is no way this shirt is offensive in any way, and what I’m going to use the shirt to pretend I have a gun?

Travelers in the United States, needless to say, have no reason to be smug. The keystone cops at the Transportation Security Administration, after all, have become experts at confiscating such well-known terrrorist weapons as fingernail clippers and bottles of shampoo.

Kerr Defends the Third-Party Doctrine

Orin Kerr is a law professor at George Washington University and a blogger on the popular Volokh Conspiracy. He is a thoughtful, open-minded legal scholar, but I don’t think it’s unfair to say that he reliably sides with law enforcement on Fourth Amendment issues.

He recently posted a draft article defending the third-party doctrine, which is an interpretation of the Fourth Amendment holding that a person sharing information with a third party cannot make a Fourth Amendment claim to protection of that information. Use an ISP to transmit your email? No Fourth Amendment protection for its contents. Have a bank account? No Fourth Amendment protection for your banking records. Etc.

He treats as similar two issues that I see as separate: revelations gleaned from informants/agents and from business records. I have always thought of the third-party doctrine as being about business records. My remarks here apply to that area only.

I think the third-party doctrine was never right, and that it grows more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The third-party doctrine exempts law enforcement from the Fourth Amendment’s reasonableness and warrant requirements when it looks at these records.

It’s wonderfully contrarian to run against the grain and defend the third-party doctrine, which has plenty of detractors, but sometimes contrarians can be wrong. I think Professor Kerr is, and here I’ll briefly lay out a few of the fundamental differences I have with his paper—all toward the end of perfecting it before it’s published in the Michigan Law Review next year, of course!

The basic gist of the article is that the third-party doctrine is better than most people think, for two reasons. First, it’s technologically neutral. It prevents criminals from making opportunistic use of technology to circumvent the basic balance between security and privacy struck by the Fourth Amendment. Second, it’s easier to administer than alternatives. The arguments against the third-party doctrine are weaker than most people believe, Kerr says.

Rather than wedging the third-party doctrine into the “reasonable expectation of privacy” framework arising out of Katz v. United States, Kerr argues that the third-party doctrine should be thought of as a form of consent. People sharing information with others are consenting to have it searched.

To make the third-party doctrine more palatable, he argues that substitutes for it help control against abusive practices. These include common law privileges, entrapment law, the Massiah doctrine, First Amendment doctrine, statutory privacy protections, and the rights of third parties themselves.

My differences with Kerr are plentiful. Starting at the 30,000 foot level, my sense is that Kerr is treating the Fourth Amendment as a rule about criminal procedure. Oh sure, it’s classed that way in the legal academy, it has most of its application in criminal cases, and I first studied Fourth Amendment law in my constitutional criminal procedure class. But add this to the list of things I didn’t learn in law school: The touchstone of the Fourth Amendment is the security of the people—all of them—against unreasonable searches and seizures of their persons, houses, papers and effects. “The people” refers to all of us, the law-abiding citizens.

(Kerr’s argument that the third-party doctrine is preferable because it’s easy to administer holds no weight if the rule derogates from the security of the people, and I’m confident that courts and police departments could manage other rules. That’s all I’ll have to say on that point so I can focus on Kerr’s point about technological neutrality.)

The interplay of the Fourth Amendment and technology is interesting, but I don’t think technological neutrality is a terribly relevant or useful metric for Fourth Amendment doctrine. Since the Fourth Amendment was adopted, technology has certainly shifted the scope of human enterprise. I imagine that in the late 1700’s most everything of deep import to people’s lives—personal and professional—happened in or near the home, so it was natural that the home was a place of high Fourth Amendment protection, and “home” was a useful proxy for “what should be protected.”

Since then, technological changes of all kinds have given us the freedom to take our lives outward. We move around much more within our communities and from one to another; we stay in different places and move our residences much more often; we communicate and transact using new technologies; and our things—both tangible and digital—come to rest many more places than they used to.

Focusing on technological neutrality would move our attention off the thing that matters—the security of the people—to whatever privacy people got in the late 1700’s from the buildings they constructed around themselves and lived in. Housing was the technology of the time. It was both the locus of activity and the source of security in persons, papers, and effects. (Thanks to the Fourth Amendment, it provided equal security against others as against the government.) It would be odd to let the technology of that time set the standard. Was there something special about the technology of that particular time that affixed the scope of people’s rights? Why weren’t they set in the era of the caveman? Or … 1957?

In 1967, of course, the Katz Court recognized that the expanded scope of human action needed coordinate expansion of Fourth Amendment protection, and it said in famous language, “the Fourth Amendment protects people, not places.” Katz preserved the security of the people as the technology moved their lives from “inside houses” to “on the phone” and elsewhere.

(It’s interesting to note how many times Kerr refers to the Fourth Amendment as protecting places: “Fourth Amendment protection for information matches the Fourth Amendment protection for the environment in which it is stored.” He could almost be arguing to undo Katz.)

The welcome vision displayed in Katz counsels that the Fourth Amendment should naturally protect people as they come to use other instrumentalities—automated machinery owned by third parties, in particular—to expand the scope of their lives yet again.

Kerr spends a good deal of time explaining how third parties like phone companies, ISPs, online banks, and such allow people to hide illegal behavior that would otherwise take place in public. But this is true of every technology. Fourth Amendment protection for houses allowed criminals to use houses in concealment of crime rather than planning crime in open fields as they otherwise would have had to do. The thing is, letting the vast majority of honest people be confident in the security of their houses has had more benefits than the costs of letting criminals make use of that protection for crime. This will be true of nearly every technology.

Technological neutrality isn’t really relevant. What’s relevant is preserving the same security for people and their stuff that they should have in a free society. It’s a consistent level of this security that matters—not technological neutrality.

A theme unfortunately not running through Kerr’s paper is how much it’s oriented toward victimless crimes, which require much more surveillance than real crime. At one point, he tellingly refers to crime as “the transaction,” not “the theft” or “the murder” or anything like that—“the transaction.” He’s talking about money laundering, prostitution, gambling, bootlegging, and the like.

Real crimes have complainants who tell the police. There isn’t a problem with discovering these crimes or knowing where to start looking for the criminals. The third-party doctrine is intimately bound up with the War on Drugs. Kerr should surface this and grant forthrightly that the third-party doctrine exists for and because of victimless crime laws.

It’s a fascinating idea—and weird—that sharing information with a third party is a form of consent to it being searched by the government. This area deserves more thinking, but my initial impression is that the word “consent” loses the moorings that make it meaningful if consent to a search is imputed to any sharing of information.

The consent argument, and much of Kerr’s other points are bound up with the “reasonable expectation of privacy” doctrine that evolved from Katz. Rather than go through everything now—as I write, it happens to be Friday a little after 5:00 p.m.—I’ll just mention that I have an article coming out soon in the American University Law Review showing that the “reasonable expectation of privacy” test from Justice Harlan’s concurrence is not even supported by the majority’s holding in that case.

There is much more to know about privacy. Kerr treats lost privacy and official abuse as essentially the same, though they’re quite different. (Two chapters in my book on identification policy discuss the free-standing importance of privacy and anonymity.) So many people have thrown themselves onto the “reasonable expectation of privacy” pyre based on that well-intended but mistaken concurrence. It won’t have to happen any more once my article comes out.

I’m going to send Professor Kerr an advance copy. Perhaps the final version of his article will sparkle from the exposure to it!