Topic: Telecom, Internet & Information Policy

The U.S. Department of Chutzpah

For PR professionals, the holiday season is like one big Friday at 5:00 p.m. That’s when you release information that you don’t want getting too much attention.

So it’s no surprise that we learned yesterday that the Transportation Security Administration has just awarded itself the authority to make airport strip-search machines mandatory. Until now, having a machine create a digital representation of your unclothed body has had a happy alternative: a prison-style pat-down! (That’s my choice. It’s sometimes a little massage-y.)

It takes a lot of gall for the Department of Homeland Security to make this move now, though—not because it’s the holiday season, but because the DHS (of which TSA is a part) is currently under a court order to establish the legality of its strip-search machine policies in toto.

In July 2011, the D.C. Circuit Court of Appeals ruled that the DHS had failed to follow the procedures required by law when it established its policy of using strip-search machines for primary screening. The court ordered the DHS to “promptly” undertake a notice-and-comment rulemaking. Four years later, our friends at the Competitive Enterprise Institute initiated a new lawsuit seeking to compel DHS to finish what was amounting to an endless rulemaking process.

DHS recently told the D.C. Circuit that it would finish the regulation by March 3, 2016. In the meantime, they’re screwing the lid down just a little bit more on air travelers. Chutzpah!

When the regulation is done, it can finally be challenged under the Administrative Procedure Act’s “arbitrary and capricious standard.” Our John Mueller and Mark Stewart have already shown that strip-search machines are a cost-ineffective security measure.

In a similar vein, rumors are swirling that the DHS will soon announce full REAL ID enforcement at airports. The quiet week between Christmas and New Years seems like a ripe time to get that news out.

They’ve said they’d give 120 days’ notice that TSA is going to start rejecting drivers’ licenses and IDs from states that don’t participate in the national ID system. A December announcement means that April would be white-knuckle time for travelers.

There will not be enforcement, of course. The goal is to bluff about enforcement to state legislatures in advance of their 2016 legislative sessions, so that they’ll pass laws implementing the federal national ID mandate. Just yesterday, two DHS bureaucrats issued orders to Minnesota governor Mark Dayton (D) detailing how the law in Minnesota must change to satisfy their demands.

Federal bureaucrats ordering around governors and legislators! Chutzpah!

DHS isn’t dumb enough to do it … I’m sometimes wrong … but actual REAL ID enforcement at airports would be quite a show. Not only would there be howls of protest aimed at TSA in the media, the DHS would catch a delicious lawsuit from some law-abiding American citizen trying to visit family who is denied the right to travel.

The lawsuit would expose that DHS enforcement is entirely arbitrary. REAL ID is unworkable, and the agency has been handing out waivers like they were candy canes since the statutory deadline in 2008. Having selected a pared-down “material compliance checklist” to treat as compliance, DHS bureaucrats have been arbitrarily claiming that some states are in compliance and some states are not, giving waivers to some states and not to others based on internal, self-selected criteria. That is not how law works, and once they try to enforce, they’ll have to square-up their enforcement efforts with the terms of the REAL ID law, equal protection, and due process.

Should DHS try to show that it has rational criteria for refusing IDs, that may bring in the question of ID security, which, like strip-search machines, is another cost-effectiveness loser. I won’t belabor that point, but my Christmas list includes a TSA and DHS operating under the rule of law, required to defend its programs in light of solid points made by security analysts like this guy Adam.

Learn more than you ever wanted to know about REAL ID from this recent Hill briefing.

“This Process Stinks”

Those are the words of Paul Ryan (R-WI) in October, ahead of his elevation to Speaker of the House. He was objecting to a budget deal being rammed through the House, and he went on to say, “This is not the way to do the people’s business, and under new management we are not going to do the people’s business this way.”

Today, the House is scheduled to debate an omnibus spending bill that has highly controversial cybersecurity surveillance legislation slipped into it.

Well. That didn’t take long.

Is a ‘Non-Federal’ License Still a National ID?

The Department of Homeland Security has been pressuring state legislatures to implement our U.S. national ID law, the REAL ID Act. States are free to set their own policies because the DHS will always back down. But many state legislators don’t know that. They’re in a bind where they feel obligated to obey federal mandates, but they want to do right by the citizens of their states. Law-abiding Americans shouldn’t have to scrounge up long-lost identity documents, stand in line at DMVs, and see themselves entered into a national ID system just so they can carry a driver’s license.

So practical legislators are seeking that golden compromise, which the REAL ID Act seems to hold out. But watch your wallet, because a “non-federal” license may still be a national ID.

REAL ID permits the issuance of “non-federal” licenses and IDs. These can be issued without the many stringent, time-consuming, and annoying requirements of REAL ID. Such a card simply has to state clearly on its face that it may not be accepted by federal agencies for official purposes, and it must use unique designs or colors to indicate this.

But REAL ID also requires compliant states to give all other states access to the information contained in their motor vehicle databases. The law requires them to share all the data printed on the REAL ID cards, as well as driver histories, including motor vehicle violations, suspensions, and points on licenses.

That leaves an open question: Does the REAL ID Act require nationwide info-sharing on every licensee? Or just the licensees who carry REAL ID cards?

The question is important, because of the huge data security implications from exposing data about every driver to the motor vehicle bureau of every other state. A good reason to avoid REAL ID is to avoid the risk that a rogue DMV employee in any state can access the data of drivers in all the others. That’s a recipe for mass-scale identity fraud.

Drivers who are worried about identity fraud and their privacy should be able to opt out of this information sharing. While we’re at it, the privacy of security-conscious drivers could be protected if “non-federal” licenses came without the “machine-readable zone” that REAL ID requires. It allows easy collection of driver data and tracking with every swipe or scan of the card in a digital reader.

States should really resist REAL ID entirely. Congress should stop funding it and repeal the unnecessary and burdensome national ID law. But if there are to be “non-federal” IDs from compliant states, it would be nice if they offered Americans a way to opt out of the insecure information-sharing requirements in this national ID system.

What Is Real REAL ID Compliance?

This fall, the Department of Homeland Security and its pro-national ID allies staged a push to move more states toward complying with REAL ID, the U.S. national ID law. The public agitation effort was so successful that passport offices in New Mexico were swamped with people fearing their drivers’ licenses would be invalid for federal purposes. A DHS official had to backtrack on a widely reported January 2016 deadline for state compliance.

DHS continues to imply that all but a few holdout states stand in the way of nationwide REAL ID compliance. The suggestion is that residents of recalcitrant jurisdictions will be hung out to dry soon, when the Transportation Security Administration starts turning away travelers who arrive at its airport checkpoints with IDs from non-compliant states.

Left Hand, Meet Right Hand: The U.S. National ID Bureaucracy

One reason to avoid the creation of a national ID system in the United States is that it would facilitate direct regulation of Americans from Washington, D.C. If you want to see why we should minimize regulation of the states and people from Washington, look no further than the Department of Homeland Security’s administration of of the U.S. national ID program itself.

Congress is at fault for the passage of the REAL ID Act, of course. It didn’t even hold a hearing to assess the merits or difficulties of coercing states into implementing a national ID. But the Department of Homeland Security has made a continuing hash of the national ID program since then.

Passed in May 2005, the REAL ID Act called for states to begin issuing national IDs in three years. DHS took until January 2008—four months before the deadline—to issue final regulations telling states what they were expected to do.

Needless to say, the DHS had to issue deadline extensions, as it has done repeatedly and en masse ever since. When states learned the costs and consequences of producing a national ID, more than half objected or barred themselves from complying. DHS has given every state extensions for the last eight years, whether it wanted to or not, and every state is operating under an extension right now.

Obama Administration Promises a Machine-Readable Federal Government Organization Chart

The Open Government Partnership is an “international platform for domestic reformers committed to making their governments more open, accountable, and responsive to citizens.” Shortly after the OGP’s creation, in my November 2012 study, “Grading the Government’s Data Publication Practices,” I gave the OGP unenthusiastic praise. It appeared to substitute meetings about open government with actual forward motion on the government transparency that President Obama promised in his first presidential race.

But an important commitment emerged late last month from the “Third Open Government National Action Plan for the United States of America.” The plan includes “a wide range of actions the Administration will take over coming months to strengthen, deepen, and expand upon” U.S. open government efforts. Among them (at the bottom of page 10) is the commitment  to develop a machine-readable government organization chart. 

The lack of a machine-readable government organization chart has been an emphasis of mine in writings and speeches since at least 2012. The Washington Examiner’s Mark Tapscott cited my quest for one in a favorite article calling me a “digital Diogenes.”

Having access to data that represents the organizational units of government is essential to effective computer-aided oversight and effective internal management. Presently, there is no authoritative list of what entities make up the federal government, much less one that could be used by computers. Differing versions of what the government is appear in different PDF documents scattered around Washington, D.C.’s bureaucracies. Opacity in the organization of government is nothing if not a barrier to outsiders that preserves the power of insiders—at a huge cost in efficiency.

The promise to produce a useful organization chart is not self-delivering, of course, and there are ways that this commitment could go off the rails. But the phrasing of the commitment suggests understanding of what a well-published digital organization chart is.

The General Services Administration and National Archives Office of the Federal Register will “capture agencies’ organizational directories as machine-readable raw data in a consistent format across the U.S. Federal government.” That suggests to me that the relationships among agencies, bureaus, and program offices (to use one nomenclature) will be represented in a consistent manner government-wide. Each sub-unit of government must have a unique identifier that embeds its relationship to its parent, like the identifiers in this document published by the National Institute of Standards and Technology in 2008. We’re not talking about a flat digital phone book.

It is not clear whether this commitment is a commitment of the Obama Administration to make this the authoritative organization chart. Obviously, an org chart that doesn’t accurately represent and guide the government’s own actions is not much of an org chart. But if the White House (i.e. OMB) and other important actors such as the Treasury Department (which cuts the checks) rely on and use this machine-readable government organization chart, then we will really have something. That will raise the pressure on Congress to make its processes more transparent by referring to agencies and their sub-units in legislative documents using the same identifiers.

I’ll report here on the success or failure of the project. The national action plan does not give a definitive timeline or deadline, but it does speak of action on its commitments in terms of “months.”

Predicting the Return of ‘The Final Frontier’

It’s not often that a regulatory policy analyst correctly predicts a pop culture development a decade out, so…

Back in the spring of 2005, law professor Christopher Yoo (then at Vanderbilt, now at Penn) argued in Regulation that the Federal Communications Commission should liberalize its “structural regulations”—controls on such things as how the broadcast spectrum can be used, cable TV rates, ownership of different media outlets in a geograpic market, etc. He explained that those controls limit the diversity of voices and programming in mass media, making it mainstream-directed, because such programming is most profitable under those rules.

About the time his article appeared, the now-defunct UPN Network announced its cancellation of the series Star Trek: Enterprise, the most recent TV installment of the Star Trek franchise. The reason was low ratings; Trek fans are fervant and typically middle to upper class, but they were not a big enough market segment for UPN and its desired advertisers. However, those characteristics made the fans an ideal market for a paying-subscriber-supported Star Trek—something that Yoo’s reforms would have allowed, but FCC regulations prohibit.

Seeing the news hook, Yoo and I wrote an op-ed for the San Francisco Examiner explaining all this and concluding

Hopefully, if the “Star Trek” series gets yet another revival, it will be in a mass communications environment where niche shows have a better chance to live long and prosper.

Unfortunately, the FCC hasn’t adopted the reforms we envisioned (if anything, going in the opposite direction). But human innovation—both in technology and business—often finds ways around government barriers.

This week, the CBS Network announced that a new Star Trek series will launch in January 2017, exclusively on CBS’s Internet-delivered subscriber service All Access. The move will attempt to do exactly what Yoo and I foresaw: tap the Trek fanbase to see if it is a viable market for the show.

It can’t be said that CBS is boldly going where no one has gone before. Cable and satellite services, premium channels like HBO and Starz, and streaming services like Hulu and Netflix have already entered the final frontier of subscriber-supported content, delivering high-quality but niche-audience new programming such as original series Game of Thrones and House of Cards, reboots like Battlestar Galactica, and network-cancelled series like The Mindy Project. They can do this, in part, because they can escape many of the FCC’s diversity-dampening regulations—for now at least. 

Unfortunately, the FCC hovers as menacingly as a Romulan starship, as evidenced by the recently adopted net neutrality regulations. Still, let’s hope that CBS’s new venture lives long and prospers.