Topic: Telecom, Internet & Information Policy

Rep. Bachman Misleads Her Constituents

Over the last few weeks, I’ve pointed out a few of the misleading arguments being deployed on behalf of expanding executive power in the wiretapping debate. But I think this op-ed in my home state’s largest newspaper, the Star Tribune, may take the cake. It’s written by Rep. Michelle Bachman (R-MN), and it’s a brazen effort to mislead my fellow Minnesotans about the wiretapping debate without saying anything that’s technically false. Rep. Bachman writes:

One of the critical tools that has allowed us to keep the homeland safe after 9/11 has been the Protect America Act. It updated the Foreign Intelligence Surveillance Act (FISA) to deal with new, deadly challenges in this age of terror – enabling intelligence services to immediately listen to phone calls made between foreign terrorists.

Now, it’s true that the Protect America Act was passed “after 9/11.” It’s also true that the Protect America Act was passed after Pearl Harbor. And the Battle of Hastings, for that matter. The key point is that the Protect America Act was passed in August 2007, six years after 9/11.

This matters because, as Kurt Opsahl at EFF points out, Bachman goes on to imply that “attack after attack,” including the liquid explosives plot in the summer of 2006, was stopped by the Protect America Act. Indeed, she writes, “last year, the Heritage Foundation compiled a list of 19 confirmed terror plots against American targets that had been thwarted.”

Here is the report Bachman is presumably referring to. The 19 attacks range from the Richard Reid shoe bomb attack in December 2001 to the JFK Airport plot in June 2007. In other words, all 19 thwarted attacks occurred before the Protect America Act was enacted in August 2007. Bachman never explicitly says otherwise, but she’s obviously doing her best to give her constituents the impression that the PAA was enacted sometime in 2001 or 2002. Reasonable people could disagree about whether this qualifies as a lie. But I think it’s hard to escape the conclusion that Rep. Bachman has a low opinion of her constituents’ intelligence.

RateMyCop.com Enjoying Streisand Effect

A site for community review of police officers called RateMyCop.com gets the benefit of the “Streisand effect” today. For a period of time, it was shut down by its web registrar, GoDaddy.com, most likely because of law enforcement complaints about being subject to public oversight.

(The “Streisand effect” is the phenomenon where an attempt to censor or remove information from the Internet backfires, causing it to be more widely publicized. The term refers to a 2003 incident in which Barbra Streisand sued a photographer and Web site in an attempt to have an aerial photo of her house removed from a publicly available collection of 12,000 California coastline photographs. The lawsuit made the photo very popular.)

New Paper on Electronic Employment Eligibility Verification

For all its wonders, technology is not something policymakers can sprinkle on deep-seated economic and social problems to make them go away. Electronic employment eligibility verification - the idea of automated immigration-background checks on all newly hired workers - illustrates this well.

A national EEV program would immerse America’s workers and businesses in Kafkaesque bureaucracy and erode the freedoms of American citizens, even as it failed to stem illegal immigration.

Ultimately, there is no alternative but for Congress to repair the broken immigration system by aligning legal immigration with our nation’s economic demand for labor.

Read about it in my new paper, “Electronic Employment Eligibility Verification: Franz Kafka’s Solution to Illegal Immigration.”

FISA and the “Ravenous Trial Lawyers”

One of the common talking points of advocates for warrantless wiretapping is that the debate is really about lining the pockets of “ravenous trial lawyers.” As I’ve said before, this is a particularly silly argument. An op-ed in Sunday’s Chicago Tribune makes this argument particularly well:

The Bush administration and its acolytes now claim that we must give giant telecoms amnesty for breaking the law, or else those telecoms will no longer cooperate with the government in spying efforts that help protect America. The truth is that telecoms do not need a special deal. These companies have immunity from lawsuits for turning over customer records to the government if they do so in conformity with existing law. But, in this instance, the telephone companies knowingly violated that law. If we give them a free pass this time, won’t the telephone companies feel free to violate the laws protecting our privacy in the future?

The Bush administration and its supporters in Congress complain that these lawsuits are simply about money and enriching trial lawyers – suggesting that the litigation should be stopped because of the potential damages that might be awarded in such lawsuits. This criticism ignores the fact that, according to the rules in the federal court, the only way that we could ensure that a federal judge could continue to explore previous violations if the companies simply changed their participation or the government changed or ended the program was to ask for minimal damages. We are not interested in recovering money for ourselves, nor is our counsel, the American Civil Liberties Union of Illinois. We, however, are committed to assuring that these giant companies are punished for violating the law and thus dissuaded from violating the law in the future.

More important, amnesty not only lets the companies off the hook without answering any questions, it assures that the American people will never learn about the breadth and extent of the lawless program. Some seem to suggest that we should not have our day in court because a select few members of Congress have been able to review documents about the spy program operated by the White House. The judgment of a few Washington insiders is not a substitute for the careful scrutiny of a federal court.

This is ultimately not about money, but about the principle that nobody is above the law. I actually think that a reasonable compromise would be to limit damages due to past FISA lawbreaking. This would ensure that telecom companies aren’t driven into bankruptcy while upholding the principle that violating your customers’ privacy—and the law—comes with consequences. Of course, I’d bet money that supporters of warrantless wiretapping wouldn’t accept that compromise, because they, too, know that this is an issue of principle, not money.

Collins Still Working to Preserve REAL ID

No state will comply with the REAL ID Act’s requirement to begin issuing a national ID by the forthcoming statutory deadline, May 11th.

Because of that, the Department of Homeland Security is giving states deadline extensions just for the asking. Interestingly, it’s turning around and spinning the acceptance of those extensions as commitments to comply. Many of the states shown in green on this map have passed statutes outright refusing to implement the law. (For readers new to Planet Earth, the color green typically means “go.” Green is a strange choice of color for states that have legally barred themselves from issuing the DHS’s national ID.)

With her state — the first in the nation to pass anti–REAL ID legislation — considering refusing even the deadline extension, Sen. Susan Collins (R-ME) is once again working with DHS in support of the national ID law.

She has written a letter to the governor of her state, asking him to go ahead and take the waiver, playing into the DHS strategy. Followers of REAL ID know that delaying implementation helps a national ID go forward by giving the companies and organizations that sustain themselves on these kinds of projects time to shake the federal money tree and get this $11 billion surveillance mandate funded.

The cumulative profit margin of the airline industry is less than 1%. Should even a single state refuse to accept this national ID mandate, the airline industry, airport operators (faced with reconfiguring their operations), and travelers groups would be on the Hill in an instant. The Congress would have to revisit the issue.

Evidently, Senator Collins doesn’t want to risk the chance of an up-or-down vote on whether the United States should have a national ID. Her work behind the scenes in favor of REAL ID reveals where she stands.