Topic: Telecom, Internet & Information Policy

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.

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.