E-Verify: More Study Needed

Though reauthorization of E-Verify was briefly in doubt, it appears now that congressional authorizers have agreed on a way forward, and that the program needs a lot more study.

A bill on the House floor today would extend E-Verify as a “voluntary” program for 5 years and require much more study of the system and its problems. The consensus at the beginning of the year was that Congress would require every employer in the country to use it by the end of the year.

Since then, flaws in the E-Verify database and tracking system have come to light and it has become more clear that “internal enforcement” of immigration law means tracking and databasing all Americans. My paper on the subject is called “Franz Kafka’s Solution to Illegal Immigration.”

E-Verify is losing its luster. In the reauthorization bill, Congress has tasked the Government Accountability Office with conducting two studies to explore problems with the system and the policy. One will look into the large number of erroneous “tentative nonconfirmations,” their causes, and potential remedies. DHS sought to glide past these issues in its advocacy for E-Verify this year. The other will look at how E-Verify would effect small businesses (and also small non-profits and municipalities). Current users of E-Verify tend to be large employers that are motivated (by threat of enforcement or past enforcements) to comply scrupulously with the law. The already low quality of the E-Verify system’s results will drop when other employers not so motivated begin to use it.

If E-Verify goes forward another five years, technical and programmatic problems will become more clear. But we shouldn’t take our eye off the ball. A national E-Verify system would be used to give the federal government direct regulatory control over law-abiding Americans. Federal authorities would use it to control not just work, but housing, financial services, health care, and access to alcohol, tobacco, and firearms — and these are just the obvious things.

Pots, Kettles, and Sen. Brownback

Via Yglesias, Sam Brownback is outraged that the Chinese government would spy on foreigners on its soil without a warrant. When it was pointed out to him that the United States government is now authorized to conduct warrantless spying in the United States, he had this to say:

We don’t put the hardware and software on hotels. If there is a targeted individual that seems to be a likely prospect of terrorists, they must go through the FISA court and ask for a court to determine that there is probable cause to be able to listen in on that information.

This is a blanket requirement of a hotel to operate a license in China. It is non-specific to anybody. It can be used on journalists. It can be used on athletes – or, excuse me, they’re at the Olympic village – but on their families. It can be used on democracy advocates, human rights advocates, none of which is prohibited. It is real time.

I think there is a huge difference between these two that are taking place.

Well, except there isn’t. All that’s required under the FISA Amendments that the Senate passed a couple of weeks ago is that the government “certify” that the “target” of the surveillance is located overseas. There’s no requirement that the government identify specific targets, and there’s no “probable cause” requirement at all — not even the permissive “agent of a foreign power” standard that had previously governed FISA intercepts.

This means that if the Olympics were held in the United States, the US government could “target,” say, a foreign newspaper such as the Guardian. And as a means of “targeting” the Guardian, it could tap the hotel rooms of all Guardian reporters in the United States.

Now, under the FISA Amendments Act, the government would have to submit a “certification” to a judge describing the eavesdropping plan. And the judge is required to verify that the interceptions are not “targeting” persons located within the United States. But, the government could argue with some plausibility, the “target” of the acquisition is the Guardian, which is located overseas, not the particular reporters who are in the United States. It would be a close legal question. And anyway, the government “is not required to identify the specific facilities, places, premises, or property” in the certification it submits to the judge, so the judge might not even realize that the government is bugging every reporter.

Worst of all, even if the judge rejected the “certification,” the government would have 30 days to continue eavesdropping before it was required to comply with a judge’s order. Since the Olympics are only about 3 weeks long, that means the government could intercept every single call from every single foreign reporter throughout the entire Olympics regardless of what the judge nominally overseeing the eavesdropping said.

Finally, lest we think the United States government would never do such a thing, the FBI repeatedly spied on “democracy advocates” and “human rights advocates” during the Cold War. For example, between 1954 and 1973, the FBI’s New York office alone conducted 433 break-ins of organizations J. Edgar Hoover didn’t like. Targets included the National Lawyers Guild, the Chicago Committee to Defend the Bill of Rights, the American Youth Congress, Vietnam Veterans against the War, Students for a Democratic Society, the Student Non-Violent Coordinating Committee, the Joint Anti-Fascist Refugee Committee, the League of American Writers, the National Mobilization to End the War in Vietnam, the Jewish Cultural Society, the Civil Rights Congress, and dozens of other organizations. And we only know about those break-ins because the head of the FBI field office failed to destroy his records as he had been ordered to do by Hoover. The records of other field offices were destroyed, but there is every reason to think that a similar number of organizations were spied upon in other cities.

Now, I have no evidence that anything of the sort is going on today. But this is precisely why there needs to be judicial supervision of eavesdropping efforts. Because we know from history that without external oversight, power will inevitably be abused. And unfortunately, Sen. Brownback voted for legislation that significantly reduced judicial oversight of wiretapping activities. Brownback is absolutely right to say that domestic eavesdropping shouldn’t occur until the government has demonstrated probable cause to a judge. Too bad he didn’t vote that way.

All Pretenses Abandoned

Welfare enthusiasts have always used pushes for free trade as leverage for increased support for laid-off workers. The logic was that because free trade brings myriad benefits to society, society could give just a little spare change to those who no longer can shelter behind consumer-funded protectionist walls.

That is not exactly a principled position, of course (as I have asserted here before) but a new, ”improved” proposal this time appears to have the support of business groups. They have been convinced that the possible backlash against globalization is worth a massive expansion of the welfare state, and are backing a new wage insurance scheme that would cost $22 billion, funded through payroll (i.e., employment) taxes.

But wait, there’s more. The new program would be available for all displaced workers, not solely for those who lost their jobs because of import competition. While I have always resisted that distinction because it demonized trade unfairly (see here), a trade-linked scheme at least was less costly (less than $1 billion currently) and, up until recently, kept the trade ball rolling well enough.

In light of the collapse of the Doha round, the stalling of the bilateral trade agreement with Colombia, and increased protectionist sentiment at home and abroad, it is clear that negotiated trade liberalization efforts are in peril. What is not clear is whether an expansion of the welfare state would appease trade skeptics, including a certain front-running presidential candidate, and revive the decades long bipartisan support for trade. So what exactly are we buying here?

Indictment of Sen. Stevens - An Interesting Tidbit

I suppose the charges brought against Senator Ted Stevens (R-AK) aren’t terribly interesting to most libertarians. Perhaps we get a bit of schadenfreude as one of the mighty fall, but shady dealings that edge into outright corruption are part and parcel of politics.

You’re not going to see a lot of jaws dropping around the Cato Institute with the news of the Senator’s indictment. And (if I may venture to speak for my colleagues) few of us think that if you just “cleaned up” the process, it would actually work.

But here’s an interesting tidbit: The indefatigable David Carney of TechLawJournal has given some thought to why these particular charges were brought. His subscription newsletter has a summary of the case with a section called “DOJ Forum Shopping,” which says, in part:

The 6th Amendment of the Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

Federal Rule of Criminal Procedure 18 provides that “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant and the witnesses, and the prompt administration of justice.”

Stevens’ house is in Alaska. The alleged home improvements, and all of the transactions alleged in the indictment, occurred in Alaska. Only the filing of the Senate Financial Disclosure Forms (SFDFs) are alleged to have taken place in District of Columbia. Thus, the §1001/SFDF offense is the only one that the DOJ can assert occurred in the District of Columbia.

Thus, the indictment alleges that Sen. Stevens violated §1001 “in the District of Columbia”.

If the DOJ were to charge Sen. Stevens with bribery or tax evasion, then there would be no credible argument that the alleged crime occurred in the District of Columbia, and Sen. Stevens would be entitled to have the case moved to Alaska.

Carney does an extensive analysis of factors that would cause the Justice Department to want to keep the case out of Alaska, and he reports on the evasiveness of a DoJ official when queried why tax charges weren’t brought, which would place the case to the Senator’s home state.

Interesting stuff from a smart lawyer and reporter. Most political coverage is about the “horse race.” David Carney law and technology coverage reveals the chess match.

(And he’s ethical: Carney discloses that he is an ex-Alaskan who voted for Sen. Stevens in the 1984 Senate election. I’ll do the same: I worked for Senator Stevens on the staff of the Senate Committee on Governmental Affairs for a short time in, I believe, 1996.)

No Resort Left Behind

A few years ago I wrote a paper trying to itemize where federal education dollars go. Unfortunately, no one keeps comprehensive data on uses like this. Apparently, you just can’t analyze student performance without “four-and-a-half acres of indoor gardens and winding waterways….a 25,000-square-foot day spa and fitness center” and “the energy of Glass Cactus nightclub.”

Must You Smear?

Over at Flypaper, Liam Julian has started a Quick and the Ed Watch, a quest to expose every bit of hyperbole that comes out of the blog belonging to the think tank Education Sector. Well, we at Cato have had our own share of run-ins with those fine folks, and Kevin Carey’s response to my current Cato Policy Report cover story shows why.

Carey has chosen to use my piece as the latest exhibit in his case to prove that there’s a “libertarian conspiracy to destroy public education,” and he writes with the tone of a man convinced he’s got me and the conspiracy on our way to death row:

there really are people out there who simply want to dismantle the entire enterprise….People like Neil [sic] McCluskey…who recently published a new policy brief explaining why public education is intrinsically un-American. Again, that’s not bloggerly snark, it’s the actual thesis: McCluskey believes that public education is a “fundamentally flawed–and un-American–institution” and a later subhead describes “Public Schooling’s Un-American Ideals.”

Maybe I should blame myself for this. I did write that public schooling is a “fundamentally flawed—and un-American—institution.” Of course, Carey asserts that I said public education is the problem. Apparently, I didn’t make a clear enough distinction between the two. So when I wrote, for instance, that we should “end public schooling and return to public education….Ensure that the poor can access education, but let parents decide how and where their children will be educated,” I was obviously being too verbose. Who could read that and know that I’m against government-dominated, take-what-we-give-you public schooling, while I favor empowering all parents to themselves pursue good education for their children? And why does Carey fail to address any of the substance of what I wrote, like data showing that early-American education worked for broad swaths of people, or quotes demonstrating that social control has been the aim of many public-schooling advocates? I guess I should have written something much shorter, or done a YouTube video, or written a Haiku, or something.

Actually, I’m starting to think this isn’t my fault at all. The problem is that Carey is trying to do what far too many public-schooling defenders resort to when presented with reasoned critiques of their favorite institution: smear the messenger, and try to keep the substance of the message from seeing even the slightest light of day.

Sadly, Carey’s blatant disregard for the distinction I drew between public schooling and public education, and even his failure to consider any of my major points or evidence, isn’t what ends up taking the sorry cake. The lowest point is his effort to equate opposing government-dominated schooling with supporting propertied-class privilege, disenfranchised women, and all sorts of other inequalities that Carey knows weren’t the products of a free education system, but rather legally—read: government—imposed constrictions. And I might add that public schooling systems segregated African-Americans well into the 20th Century and treated lots of minority groups as second-class citizens. I would never use this, though, to blow off defenders of public schooling as somehow being neo-segregationists. That’s just not how we in “the libertarian conspiracy to destroy public education” roll.

The Still-Frozen Dohapsicle Round

After nine days of trying to reanimate the cryogenically preserved Doha Round, negotiators are calling it quits again.

I have sympathy for the well-intentioned, hard-working members of those trade delegations who hoped to finally nail down the structure of a Doha Round agreement in Geneva this week. Unfortunately for them, their counterparts included too many pretenders who were more interested in using the stage provided by the negotiations to make political statements for the crowds back home.

The fact that after several days of progress the talks broke down over failure to bridge gaps on what should have been a small caveat provision proves that the political costs of a successful outcome overshadowed the political benefits for some countries.

But there are some silver linings. International trade flows continue to grow faster than the global economy, which has been moving forward at a decent clip this decade. Cross-border investment, too, continues to increase. All of those trends have been facilitated by reforms undertaken unilaterally by countries around the world. And there is every reason to believe that those trends will continue, and perhaps even accelerate while Doha sleeps.