Topic: Telecom, Internet & Information Policy

WHTI Does More Harm Than Good

The Woodrow Wilson Center’s Canada Institute is having an event May 30th entitled “People, Security and Borders: The Impact of the Western Hemisphere Travel Initiative on North America.” It looks like a good event exploring an important suite of issues.

I’ve been drawn into WHTI because of the privacy consequences of many border control efforts - RFID-chipped passport cards and such - but the trade issues are just as important. My back-of-the-envelope calculations about the costs of WHTI (exchanged for essentially no increased security) can now be augmented by not one, but two compelling anecdotes! Both have to do with Montreal … .

Anecdote #1 - The Busy, er, Dopey Traveler
A couple of weeks ago, I embarked on a quick round of travel to speaking engagements in Orlando and Montreal. Then, after a day in Chicago, I had planned a weekend in Las Vegas (to properly release a bachelor friend from the bonds of singledom).

As I headed to the Dulles airport bound for Orlando, I realized that I had not brought my passport for the Montreal portion of the journey. After burning a lot of candle-power figuring out what to do, I had a tenant of mine FedEx my passport to Orlando for arrival the next morning. ($24 + gratuity for the little feller going well out of his way = $40)

It arrived well after my scheduled flight for Montreal had departed, so I turned up at the Orlando airport around noon hoping to stand by on later flights. Informed that this was an impossibility on international flights (also, I believe, because of security), I came close to cancelling my attendance at the Computers, Freedom & Privacy conference in Montreal, but I persisted. (Who knows what rules were bent on my behalf, or what the rules actually are.) It took me about 14 hours and a good deal of stress to get to Montreal.

(N.B. This episode was not a stunt done to prove a point - I only do those when reporters agree to come along. It was a simple oversight because I don’t think of Montreal as being in a “foreign country” they way Lisbon or Hong Kong are.)

Long story short (oops, too late), the stresses of comporting myself to the passport requirement and various other security measures caused me to abandon the Vegas portion of my trip and head back to D.C. from Chicago for a quiet weekend. Careless as I am in tinsel-town, that probably kept $1,000 from circulating into the U.S. economy.

Anecdote #2 - The On-the-Ball Travelers
The Cato Institute’s own Michael Cannon was married two years ago. (Yes, there’s somebody out there for everyone.) To celebrate his recently completed graduate schooling and their second anniversary, he and his wife have been planning to go to Montreal this weekend.

The new(ish)ly renamed Mrs. Cannon has her act together - opposites attract, you see - and a few months ago, anticipating this trip, she applied for a passport in her new name. The check was cashed back in March, but the passport has yet to materialize.

At this moment, the two are in logistics hell, trying to navigate the State Department’s bureaucracy (including its downed electronic appointment scheduling system).

What will happen? Nobody knows. Will herculean efforts by Mrs. Cannon and her hubby produce a passport? Will the two cancel their trip? Will Mr. Cannon persist in the face of this heavy, security based regulation and go on his own?

Programs like WHTI are often justified as being part of a layered security system for the United States. “Layered security” is a legitimate way of thinking about things. One shouldn’t rely on a single security system, because that creates a single point of failure. However, security layering doesn’t end the inquiry. Each layer must provide security that is cost-justified. If checking the passports of Canadian-border crossers doesn’t create a substantial protection - and it doesn’t - that layer does more harm than good.

The United States is not safer because of what the Cannons are experiencing. It’s just smaller and unhappier.

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.

DHS Privacy Committee Declines to Endorse REAL ID

The Department of Homeland Security’s Data Privacy and Integrity Advisory Committee is filing comments on the REAL ID regulations. Comments close today (Tuesday). Instructions for commenting can be found here, and apparently, due to difficulties with the automatic comment system and with receiving faxes, DHS has opened an email address for receiving comments: oscomments [at] dhs [dot] gov (subject: DHS-2006-0030) . Emails must have “DHS-2006-0030” in the subject line.

The Committee took care to offer constructive ideas, but the most important takeaway is summarized by Ryan Singel at Threat Level:

The Department of Homeland Security’s outside privacy advisors explicitly refused to bless proposed federal rules to standardize states’ driver’s licenses Monday, saying the Department’s proposed rules for standardized driver’s licenses – known as Real IDs – do not adequately address concerns about privacy, price, information security, redress, “mission creep”, and national security protections.”Given that these issues have not received adequate consideration, the Committee feels it is important that the following comments do not constitute an endorsement of REAL ID or the regulations as workable or appropriate,” the committee wrote in the introduction to their comments for the rulemaking record.

I’ll be testifying on REAL ID today before the Senate Judiciary Committee.

Congress Backs Official Idiocy

Here’s Congress siding with Boston’s idiotic public officials. The Terrorist Hoax Improvements Act of 2007 would allow government officials to sue people who fail to promptly clear things up when those officials mistakenly think that they have stumbled over a terrorist plot.

There’s nothing in the bill allowing individuals or corporations to sue government officials when hare-brained overreactions interfere with their lives and business or destroy their property.

Digg, Hacking, and Civil Disobedience

Randy Picker asks when civil disobedience is acceptable, and concludes that posting HD-DVD encryption keys doesn’t cut it:

I wouldn’t think that not being able to play an encrypted high-definition DVD on your platform of choice would fall into that category. I understand fully that people disagree about whether digital rights management and the Digital Millennium Copyright Act are good copyright policy. I also understand that users can be frustrated by limitations imposed by DRM (I’ve run into those myself). But I think the DMCA (and the DRM that it makes possible) is a long, long way from the sorts of laws for which civil disobedience is an appropriate response. Simply not liking the law is not enough. There must be more, something that recognizes the nature of reasonable disagreement over law, and the range of possible legitimate variations about those laws.

Ed Felten points out some of the reasons that geeks felt so strongly about this case. Partly it was geeks’ knee-jerk opposition to censorship. Partly it’s a protest against the DMCA.

There are a variety of reasons that the DMCA is bad public policy. I presented some of them in a paper I did for Cato last year. But instead of rehashing those arguments, let me quote an excellent essay by Paul Graham about America’s heritage of hacking. Prof. Picker dismissively characterizes this week’s incident as a dispute over “being able to play an encrypted high-definition DVD on your platform of choice,” but from the perspective of computer programmers it’s about something more fundamental than that:

Hacking predates computers. When he was working on the Manhattan Project, Richard Feynman used to amuse himself by breaking into safes containing secret documents. This tradition continues today. When we were in grad school, a hacker friend of mine who spent too much time around MIT had his own lock picking kit. (He now runs a hedge fund, a not unrelated enterprise.)

It is sometimes hard to explain to authorities why one would want to do such things. Another friend of mine once got in trouble with the government for breaking into computers. This had only recently been declared a crime, and the FBI found that their usual investigative technique didn’t work. Police investigation apparently begins with a motive. The usual motives are few: drugs, money, sex, revenge. Intellectual curiosity was not one of the motives on the FBI’s list. Indeed, the whole concept seemed foreign to them.

Those in authority tend to be annoyed by hackers’ general attitude of disobedience. But that disobedience is a byproduct of the qualities that make them good programmers. They may laugh at the CEO when he talks in generic corporate newspeech, but they also laugh at someone who tells them a certain problem can’t be solved. Suppress one, and you suppress the other…

It is by poking about inside current technology that hackers get ideas for the next generation. No thanks, intellectual homeowners may say, we don’t need any outside help. But they’re wrong. The next generation of computer technology has often — perhaps more often than not — been developed by outsiders.

In 1977 there was, no doubt, some group within IBM developing what they expected to be the next generation of business computer. They were mistaken. The next generation of business computer was being developed on entirely different lines by two long-haired guys called Steve in a garage in Los Altos. At about the same time, the powers that be were cooperating to develop the official next generation operating system, Multics. But two guys who thought Multics excessively complex went off and wrote their own. They gave it a name that was a joking reference to Multics: Unix.

The latest intellectual property laws impose unprecedented restrictions on the sort of poking around that leads to new ideas. In the past, a competitor might use patents to prevent you from selling a copy of something they made, but they couldn’t prevent you from taking one apart to see how it worked. The latest laws make this a crime. How are we to develop new technology if we can’t study current technology to figure out how to improve it?

Why are programmers so violently opposed to these laws? If I were a legislator, I’d be interested in this mystery — for the same reason that, if I were a farmer and suddenly heard a lot of squawking coming from my hen house one night, I’d want to go out and investigate. Hackers are not stupid, and unanimity is very rare in this world. So if they’re all squawking, perhaps there is something amiss.

Could it be that such laws, though intended to protect America, will actually harm it? Think about it. There is something very American about Feynman breaking into safes during the Manhattan Project. It’s hard to imagine the authorities having a sense of humor about such things over in Germany at that time. Maybe it’s not a coincidence.

Hackers are unruly. That is the essence of hacking. And it is also the essence of Americanness. It is no accident that Silicon Valley is in America, and not France, or Germany, or England, or Japan. In those countries, people color inside the lines.