Topic: Telecom, Internet & Information Policy

Stewart Baker: Light on Security and History

One would be right to worry about Stewart Baker, Department of Homeland Security assistant secretary for policy. He’s as smart and cagey as they come, but for all his years at DHS, his security thinking seems not yet to have matured. At the same time, his recollection of the REAL ID Act is showing signs of somewhat advanced age. Let’s walk through some things with our friend Stewart:

Writing on the DHS blog in support of our national ID law, the REAL ID Act, he intones about the importance of driver’s licenses to national security. “Unfortunately,” he says, “we learned this the hard way. Twice.”:

First, in 1995, when Timothy McVeigh was able to create a fake South Dakota license with ease; all it took was a manual typewriter and a kitchen iron. He used the license to rent a Ryder truck in Oklahoma and destroy the Murrah Federal Building. Then, on September 11, 2001, eighteen of the nineteen hijackers carried government-issued IDs – mostly state driver’s licenses, many obtained fraudulently.

What, actually, did we learn from these stories?

I researched McVeigh’s attack on the Murrah building for my book Identity Crisis, concluding that he and Terry Nichols used false names inconsistently and with little purpose or effect. McVeigh used his true name to register at a motel for the nights directly preceding the bombing. This certainly clouds the theory that insufficient identification security had a relationship to the success of the bombing.

No, McVeigh and Nichols used surprise, not anonymity, to carry out their attack. They were playing cat and mouse with a cat that wasn’t looking for them. Once they struck, they were easily found.

The 9/11 story similarly fails to create a foundation for REAL ID or more secure identification. The 9/11 Commission noted that the 9/11 terrorists acquired U.S. identity documents — “some by fraud” — but it made no effort to establish how possession of identity documents, whether fraudulently or lawfully gotten, was proximate to the success of the 9/11 attacks.

A monograph on terrorist travel issued by 9/11 Commission staff without the endorsement of the Commission documented many issues related to travel documents and identity cards, but it too failed to establish how weakness in our identity systems were proximate to the 9/11 attacks, or — more importantly — how more secure identification systems would foreclose future acts of terrorism. Stewart Baker hasn’t establish this either. Nobody ever has. Identity security was a minor recommendation of the 9/11 Commission, and not a well-supported one.

But Baker characterizes it thusly:

The 9/11 Commission recognized that it’s too easy to get false identification in the U.S. That’s why the Commission determined that “(s)ecure identification should begin in the United States. The federal government should set standards for the issuance of birth certificates and sources of identification, such as driver’s licenses.” Congress responded with the REAL ID Act of 2005, which requires the federal government to set standards for the identifications it accepts.

Now poor Stewart has fallen down a different way. Actually, Congress responded to the 9/11 Commission report with Section 7212 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108-458). It created a committee of interested parties to assess how to strengthen the security of state ID cards and licenses. The REAL ID Act repealed section 7212 and disbanded that committee. Legislation to restore it is pending in both the Senate and the House.

Baker plans to write more on the REAL ID Act in the coming days. His purpose, of course, is to menace the states whose leaders may refuse to accept an extension of the compliance deadline under the Act. These states may force a showdown with DHS and Congress over this sprawling albatross of an unfunded surveillance mandate.

Not a single state in the entire country will comply with REAL ID by the statutory deadline of May 11, but DHS hopes that getting all states to agree to take deadline extensions can be counted as a REAL ID win. I suppose logic like that makes Stu Baker’s security chops and memory look pretty good! It’s a close call, but at this point I think it’s premature to take his driver’s license away.

Boiling the Voter-ID Teapot

Last week, former Federal Election Commissioner Hans A. von Spakovsky published a Heritage Foundation Legal Memorandum entitled Stolen Identities, Stolen Votes: A Case Study in Voter Impersonation. Contrary to claims made by prominent newspapers and attorneys, he argues, in-person voting fraud is a real problem.

The evidence he provides is a vote fraud ring that began operating in 1968 and that was broken up more than 25 years ago in 1982. Impersonation fraud can be committed at polling places, and a voter-ID requirement would make it a little harder, but a quarter-century-old case is hardly evidence of a significant problem.

How states secure their voting processes should turn on how they structure their voting processes. States might choose a voter ID requirement if they can do so in a way that balances security against access, convenience, and privacy. Absentee balloting is generally a far greater threat to the security of elections than weak or non-existent ID requirements at polling places.

The thing that matters most is avoiding a uniform national voter ID requirement. I wrote about this in my TechKnowledge piece Voter ID: A Tempest in a Teapot That Could Burn Us All: “To ensure that American voters enjoy their franchise in a free country, clumsy voter ID rules should be avoided. A national voter ID system should be taken off the table entirely.”

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.”