Topic: Telecom, Internet & Information Policy

Wisconsin Governor Defunds REAL ID

WisPolitics.com reports that Wisconsin Governor Jim Doyle (D) plans to take more than $20 million out of the state’s REAL ID account and transfer it into the state’s general fund.

Wisconsin Representative Jim Sensenbrenner (R) objects:

When I shepherded the REAL ID bill through Congress 3 years ago, it was in response to one of the key recommendations made by the 9/11 Commission, that ‘fraud in identification documents is no longer just a problem of theft.’ As we saw in 2001, in the hands of a terrorist, a valid ID accepted for travel in the US can be just as dangerous as a missile or bomb.

Congressman Sensenbrenner is correct to claim responsibility for REAL ID, but less accurate in other parts of his statement. The 9/11 Commission’s ‘key’ recommendation wasn’t key. (Indeed, Congress’ effort to follow the Commission’s recommendation was repealed by REAL ID.)

Nobody - not the 9/11 Commission, not Congressman Sensenbrenner, not Stewart Baker, nor anyone else - can explain the proximity between false ID and terrorist attacks, or how REAL ID cost-effectively secures the country against any threat.

Wisconsin’s governor has issued a mighty well-placed snub to the creator of the “Sensenbrenner tax.”

Measuring the Cost of E-Verify Red Tape

A recent story in the Arizona Republic describes the rising practice of using “registered agents” to take care of the paperwork associated with the E-Verify system, which is mandatory for employers in Arizona. Registered agents know how to navigate this system, which requires employers to submit information about their new hires to the federal government for an immigration-status background check. Registered agents are there to step in and reap the rewards when employers throw up their hands.

The story reports that registered agents charge from $7.50 to $10.00 per new hire. There are about 50,000,000 new hires per year in the country (according to Labor Department statistics), and let’s assume that average employer is a little more efficient than those who use a registered agent - so make it $5.00 per new hire. That’s $250,000,000 per year, just on basic administration of the E-Verify system.

There are plenty of other costs to electronic employment elgibility verification, which I wrote about in my recent paper, “Franz Kafka’s Solution to Illegal Immigration.”

At a recent hearing, Representative Ken Calvert (R-CA) reportedly said, “There are certain interests that simply do not want employment verification.” He was referring to an internecine fight with a human resources group. But I found in my paper that “successful internal enforcement of federal immigration law requires an overweening, unworkable, and unacceptable identity system.”

Freedom-loving Americans do not want employment verification. They think it’s doubly or triply foolish to spend taxpayer dollars and burn employers’ time on policies that reduce our economic growth.

L-1: The Technology Company in Your Pocket

Inspired by the promotional brochure I recently came across, I’ve taken a look at L-1 Identity Solutions in a new Cato TechKnowledge. Though it has better options, L-1 and its new acquisition, Digimarc ID Systems, seem likely to continue lobbying for the REAL ID Act. My concluding line: “A corporate lobbying operation can do as much harm to liberty as any government agency or official.”

REAL ID Deadline Passes - Zero Compliance

Yesterday - Sunday, May 11, 2008 - was the statutory deadline for state compliance with the REAL ID Act. Not a single state has begun issuing nationally standardized IDs as called for by the law. Nor are they putting driver information into nationally accessible databases.

Matthew Blake of the Washington Independent has a solid recap of the situation.

Cracking Down on Legal Permanent Residents, Pt. II

A couple of weeks ago, I wrote about a legal permanent resident who was arrested because he shared a common name with a suspected illegal immigrant. It illustrated how the E-Verify program would foul things for legal workers, a prominent subject of this paper.

Here’s another story of legal permanent resident mistreatment. This illustrates how overblown terror fears can cloud officials’ judgments and foul things for … well, everyone.

It seems that a woman in Florida asked her relatives in Monterrey, Mexico to ship her the birth certificates of two relatives who want to apply for their Mexican passports at the consulate in South Miami. At the behest of U.S. Customs and Border Security, the envelope is being held by the United Parcel Service in Louisville, Kentucky until she identifies herself further.

Asked to explain, a CBP spokeswoman in Washington asserted the U.S. government’s right to examine everything entering or exiting the country and said, “Identity documents are of concern to CBP because of their potential use by terrorists.”

This is a terrific example of poorly generated suspicion. In our paper on predictive data mining, Jeff Jonas and I wrote about how suspicion is properly generated in the absence of specific leads: “[T]here must be a pattern that fits terrorism planning … and the actions of investigated persons must fit that pattern while not fitting any common pattern of lawful behavior.”

False identities and forged documents have been used by terrorists, but with little purpose or effect. There just isn’t a proximate relationship between false identification and successful attacks. But obviously some terrorists have believed that they need false or fraudulently-gotten IDs. So there is a weak but plausible relationship between shipping identity documents and terrorism planning.

But that doesn’t end the inquiry. We have to ask a second question: Does shipping identity documents fit any common pattern of lawful behavior? Yes it does, such as the example here: legal permanent residents seeking to apply for home-country passports at consulates in the U.S. There are probably dozens of other reasons for shipping identity documents as well. CBP’s suspicion of this woman and her documents is not well founded.

One is reminded of the cases where photographers have been harassed or arrested for photographing buildings and monuments. Yes, photography of big things is potentially consistent with terrorism planning! Oh, but it’s also consistent with having an interest in architecture, having an interest in photography, taking a vacation, working as a photographer for a newspaper, and so on, and so on …

This woman should get her documents without further delay.

ACTE Endorses REAL ID Repeal

Joining the National Conference of State Legislatures, the Association of Corporate Travel Executives has endorsed S. 717, the Identification Security Enhancement Act of 2007. This bill would reinstitute a negotiated rulemaking process regarding identity security that was established in the 9/11-Commission-inspired Intelligence Reform and Terrorism Prevention Act.

XM-Sirius Rent-Seeking

The FCC’s review of the XM-Sirius merger is a perfect example of the type of quagmire that’s inevitably created when a government agency is given broad, discretionary authority over private businesses. Various special interest groups have proposed that the merger be subjected to a laundry list of requirements. Lefty groups want an open device mandate. A rent-seeker entrepreneur named Chester C. Davenport wants the merged entity to set aside 20 percent of its spectrum for minority-controlled broadcasting. There are a variety of other proposals to require the firm to lease spectrum to unaffiliated entities. Clear Channel is demanding that it be subjected to the same “indecency” regulations that now plague terrestrial radio.

There are good arguments against each of these proposals, and there are some plausible arguments for some of them as well. But what I find most problematic about the situation is the way the proposals are handled. We have a constitutional system of government in which Congress is supposedly in charge of writing laws, the executive branch is in charge of executing them, and the courts are in charge of interpreting them. This ensures that laws are written by the most politically-engaged branch—Congress—and interpreted by the most impartial branch—the courts.

But in this case, as in many others, Congress has effectively given the FCC its blessing to wear all three hats. It can dream up new “conditions” (read: regulations) for the merger focusing on virtually any subject that strikes its fancy. The conditions are specific to one company, so there’s ample scope for favoritism and arbitrary decision-making. And once the conditions have been announced, and XM-Sirius have been blackmailed into “accepting” them, the FCC effectively wears executive and judicial hats as well. Yes, supplicants before the FCC can and do appeal decisions to federal courts, and the FCC is sometimes overruled. But the courts tend to give the FCC relatively wide deference in its policy decisions, and firms that practice regularly before the FCC may be reluctant to too aggressively defend their prerogatives in the courts for fear of souring their relationship with the FCC going forward.

The fundamental problem (aside from the courts’ failure to require that lawmaking powers be limited to Congress as required by the Constitution) is the FCC’s baroque process for apportioning spectrum. The right way to handle it would be for XM, Sirius, and every other broadcaster to have a property right in the spectrum they use, which would entitle them to do as they please with that spectrum (as long as it didn’t interfere with other broadcasters) or to lease or sell the spectrum to anyone else. In a world with genuine property rights, spectrum would find its way to owner with the highest-valued use, and anyone who wanted to enter a market like satellite radio would be able to do so simply be purchasing spectrum rights in the appropriate bands. The FCC’s role would be limited to keeping track of who held which license and verifying that spectrum uses did not create interference with one another.

My suspicion is that in such a world, satellite radio would prove economically infeasible because the spectrum would be more valuable in other uses. But I don’t know, and the FCC’s soviet-style spectrum allocation process is certainly not a good way to figure it out. The FCC should approve the XM-Sirius merger without conditions. But the more important lesson is that, Congress should be moving toward genuine property rights in spectrum, so that the 21st-century wireless market ceases to be micro-managed by an anachronistic 20th-century bureaucracy.

Once we have a real market for spectrum, Congress may choose to enact general regulations governing the use of that spectrum. But the current system, in which the FCC has the arbitrary power to single out individual companies for arbitrary restrictions on virtually any subject the FCC’s commissioners happen to be concerned with, is deeply flawed. It’s not fair to companies that have the misfortune of attracting the FCC’s scrutiny, and it’s not good for consumers, who are deprived of the benefits of a robust and competitive market for spectrum.