Topic: Telecom, Internet & Information Policy

WaPo’s Marc Fisher on O’Malley’s REAL ID Misstep

Today Washington Post columnist Marc Fisher takes Maryland governor Martin O’Malley (D) to task for needlessly committing his state to implement REAL ID, the national ID law.

Fisher recognizes that REAL ID will not prevent illegal immigration, but will merely foster deepened criminality: “Maryland’s highways will soon gain tens of thousands of unlicensed motorists, thanks to an abrupt reversal by Gov. Martin O’Malley.”

O’Malley backtracked on campaign commitments to keep Maryland an immigrant-friendly state when he announced that the state would link driver licensing and immigration status. Somehow O’Malley and his secretary of transportation, John Porcari, convinced themselves (and apparently Fisher) that REAL ID requires them to refuse licenses to illegal immigrants, and that moving toward REAL ID compliance would allow them to avoid standing out:

Porcari says Maryland was forced to reject the two-tier system [in which the state would still license illegal immigrants] not because the governor is suffering from low popularity and wants to glom onto the anti-immigrant movement but because “the national landscape is shifting” and Maryland could have found itself nearly alone in resisting Real ID. But seven states are refusing to comply with Real ID, and 17 have condemned the law, which was passed after the 9/11 attacks and requires states to conduct time-consuming identity checks.

States can issue licenses to anyone consistent with REAL ID. Licenses that don’t meet the federal law’s strictures would simply have to be labeled as such.

On O’Malley’s pre-commitment to REAL ID, there are two possibilities. One is that Governor O’Malley and Secretary Porcari actually don’t understand what REAL ID requires and are ignorant of sentiment about the law among sister states. The other is that O’Malley, indeed, has abruptly reversed his professed friendliness toward immigrants.

A Core 9/11 Commission Afterthought

The Department of Homeland Security often invokes the 9/11 Commission when it discusses REAL ID. A recent DHS press release called REAL ID a “core 9/11 Commission finding.”

In fact, the 9/11 Commission dedicated about three-quarters of a page to identification security – out of 400+ pages of substance. See for yourself. Page 390.

DoJ’s Public Lobbying - A Legal Violation?

Here’s the language of 18 U.S.C. § 1913 (“Lobbying with appropriated moneys”):

No part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a Member of Congress, a jurisdiction, or an official of any government, to favor, adopt, or oppose, by vote or otherwise, any legislation, law, ratification, policy, or appropriation, whether before or after the introduction of any bill, measure, or resolution proposing such legislation, law, ratification, policy, or appropriation; but this shall not prevent officers or employees of the United States or of its departments or agencies from communicating to any such Member or official, at his request, or to Congress or such official, through the proper official channels, requests for any legislation, law, ratification, policy, or appropriations which they deem necessary for the efficient conduct of the public business, or from making any communication whose prohibition by this section might, in the opinion of the Attorney General, violate the Constitution or interfere with the conduct of foreign policy, counter-intelligence, intelligence, or national security activities. Violations of this section shall constitute violations of section 1352 (a) of title 31.

Now here is some language from a Department of Justice Web site called lifeandliberty.gov:

FISA 101: Why FISA Modernization Amendments Must Be Made Permanent
FISA Amendments In The Protect America Act Of 2007 Remain Necessary To Keep Our Nation Safe

The Protect America Act modernized the Foreign Intelligence Surveillance Act (FISA) to provide our intelligence community essential tools to acquire important information about terrorists who want to harm America. The Act, which passed with bipartisan support in the House and Senate and was signed into law by President Bush on August 5, 2007, restores FISA to its original focus of protecting the rights of persons in the United States, while not acting as an obstacle to gathering foreign intelligence on targets located in foreign countries. By enabling our intelligence community to close a critical intelligence gap that existed before the Act became law, the Protect America Act has already made our Nation safer.

The tools provided by the Protect America Act are scheduled to expire in early February 2008 – it is essential that Congress act to make the legislation permanent. Congress must also pass legislation to provide meaningful liability protection to those alleged to have assisted our Nation following the 9/11 attacks.

A public DoJ Web site that says “it is essential that Congress act to make the legislation permanent” seems designed to influence Members of Congress. It was probably created and is maintained through the expenditure of appropriated funds. Did Congress expressly authorize this? Is a public Web site “proper official channels”? Did the Attorney General find that failing to advocate for this law would interfere with national security?

It looks like this Web site violates the law, but it’s hard bein’ a country lawyer here in the big city.

Privacy Advocacy Overreach

I originally started studying and writing about privacy policy because I thought the advocates in Washington, and Congress itself, didn’t have a full grasp of the issues. They were treating privacy as a political football, and grinding their political, ideological, and self-interest axes on “the privacy issue.”

Illustrating how that problem may persist, Declan McCullagh has a strong rip on the Electronic Privacy Information Center on his Iconoclast blog. It seems that EPIC and some of its allies recently filed a strongly worded complaint with the Federal Trade Commission about problems with AskEraser that no longer exist.

The AskEraser cookie originally had a time-stamp that could act like a unique identifier, so Ask.com changed it. Nonetheless, in went EPIC’s “Complaint and Request for Injunction, Request for Investigation and for Other Relief.”

The government’s undirected, surveillance-heavy overreaction to the 9/11 terrorist attacks brought me together with lots of folks with whom I disagree on lesser issues like private-sector regulation and privacy practices. I often joke that people will know their privacy is pretty well protected when I’m back to fighting with EPIC and the ACLU. Well, I don’t intend to pick a fight now, because there’s still too much to be done, but a privacy advocacy group shouldn’t just be an FTC-complaint mill.

Declan speculates that EPIC files with the FTC rather than suing (there are some arguable causes of action) because courts would sanction them for frivolous filings. Prospectively calling EPIC’s future bluffs, he says: “The next time you see them complaining to the FTC about some alleged wrongdoing, remember these attorneys’ odd reluctance to litigate.”