Topic: Telecom, Internet & Information Policy

DHS: Even-handed Enforcer or Punisher of Select States?

Just over a month ago, another Department of Homeland Security deadline for state compliance with the provisions of the REAL ID Act passed. It was but the most recent in a series of deadlines DHS has improvised since the statutory May 2008 compliance date passed without a single state participating in the national ID program.

Time and again, when faced with resistance from the states, DHS has backed down. But the agency has had more success goading states toward compliance since it stopped issuing deadline extensions in the Federal Register and took the process offline to deal directly with individual states. Divide and conquer works.

A new series of deadlines assigns different states to one of three dates—January 30th, June 6th, and October 16th, 2017—depending on where they are in the compliance process. If the states in each category have not sufficiently answered to DHS by the relevant date, DHS will judge them non-compliant. As it has so many times before, DHS says their residents will then be at risk of having their state-issued IDs refused for federal purposes.

Because so much of this is happening behind the scenes, it is hard to gauge how DHS is choosing which states to play hardball with and which states to treat with kid gloves. But the staggered compliance deadlines have the feel of meting out punishment to states that have been the most vocal in their resistance to REAL ID. It does not have the feel of an agency neutrally enforcing a generally applicable law.

Consider the earliest group, which has a January 30th, 2017 deadline. It consists of Kentucky, Maine, Montana, Oklahoma, Pennsylvania, and South Carolina (as well as the U.S. territories of Guam and the Virgin Islands). DHS already considers Minnesota, Missouri, and Washington State “non-compliant” with REAL ID.

Trump’s Real Immigration Policy

All of my political predictions about Donald Trump were wrong.  I predicted that he wouldn’t get the Republican Party nomination despite all of the polls to the contrary.  I followed the polls closely during the election and thought Trump would lose.  I was wrong again.  While certainly no mandate, Trump won the election.  Now the policies his administration will implement and push for are what matters.  We have very little to go on when it comes to predicting his actions.  Trump has no voting record on this and other issues.  His statements, actions, a policy paper, and his staff picks are the best indicators of this actions.

My prediction is that Trump will increase the scale and scope of immigration enforcement, rescind President Obama’s executive actions or at a minimum not allow Dreamers renew their status, massively curtail or end the refugee program, and try to convince Congress to cut legal immigration.  I’ve been wrong about Trump in the past and I hope I’m wrong here too.  Let me lay out evidence that I think supports my pessimism and evidence that supports a more optimistic interpretation.

Optimistic Take: Why Trump Could Not be THAT Bad

Trump is not ideologically grounded except that he is a nationalist and a populist.  Those political instincts usually manifest an anti-foreign bias in trade and immigration but they don’t have to.  Trump has portrayed himself as a deal maker so it’s possible he’s staked out a harsh immigration position as a bargaining tactic to get concessions elsewhere.

European Criticism of American Internet Platforms

The Guardian reports on calls by German chancellor Angela Merkel for internet platforms to “divulge the secrets of their algorithms”:

Angela Merkel has called on major internet platforms to divulge the secrets of their algorithms, arguing that their lack of transparency endangers debating culture.

The German chancellor said internet users had a right to know how and on what basis the information they received via search engines was channelled to them.

Speaking to a media conference in Munich, Merkel said: “I’m of the opinion that algorithms must be made more transparent, so that one can inform oneself as an interested citizen about questions like ‘what influences my behaviour on the internet and that of others?’.

“Algorithms, when they are not transparent, can lead to a distortion of our perception, they can shrink our expanse of information.”

An algorithm is the formula used by a search engine to steer a request for information. They are different for every search engine, highly secret and determine the significance or ranking of a web page.

Merkel has joined a growing number of critics who have highlighted the dangers of receiving information that confirms an existing opinion or is recommended by people with similar ideas.

“This is a development that we need to pay careful attention to,” she told the conference, adding that a healthy democracy was dependent on people being confronted by opposing ideas.

“The big internet platforms, through their algorithms, have become an eye of a needle which diverse media must pass through [to access their users],” she said.

My sense is that some Europeans are frustrated at how American companies dominate many aspects of the Internet. However, instead of trying to compete with the American companies in the marketplace (which would be a welcome development, as more competition is good), they have decided that regulating these companies (e.g., through antitrust scrutiny) is their best strategy for reducing American dominance.

Seattle: County Mines “Courtesy Card” Data To Identify Dog Owners

They’ll be watching you: King County (Seattle) uses grocery loyalty card data to figure out who owns pets, according to a new report from local station KOMO. It then sends them letters warning of a $250 fine if they do not license the animals. The “county said they pay the company who pays stores such as Safeway …for access to customer data contained in every one of those reward card swipes.” And “the mailers work. Just last year they brought in more than $100,000 in new pet licenses.”

But remember, government needs access to Big Data to fight terrorism.

Communications and Data Meet the Fourth Amendment

This week and last, the Cato Institute filed amicus briefs urging the Supreme Court to take up two cases dealing with the constitutional status of “cell site location information,” or “CSLI.” This data, collected of necessity by cellular communications providers, creates detailed records of their customers’ movements. The briefs invite the Court to accept these cases so it can revise Fourth Amendment practice to eschew doctrine and more closely adhere to the language of the Fourth Amendment.

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Presumably, when called upon to determine whether a Fourth Amendment violation has occurred, courts would analyze the elements of this language as follows: Was there a search? Was there a seizure? Was any such search or seizure of “their persons, houses, papers, [or] effects”? Was any such search or seizure reasonable?

And in cases involving familiar physical objects, courts usually do a sound textual analysis, at least implicitly. But in harder cases dealing with unfamiliar items such as communications and data, courts retreat to “reasonable expectation of privacy” doctrine that emerged from Katz v. United States in 1967, and offshoots of it like the “third-party doctrine.” The “reasonable expectation of privacy” test asks whether defendants’ feelings about things government agents accessed were reasonable. The corollary “third-party doctrine” cancels Fourth Amendment interests in information and things that are shared on the theory that expectations of privacy evaporate in that context.

The “reasonable expectation of privacy” test is the product of one non-essential concurrence in Katz, and the third-party doctrine was wrong when the Supreme Court created it in 1976 to ratify a law that deputized banks into financial surveillance. That doctrine grows further out of synch with each step forward our society takes in modern, connected living. Today, third-party service providers collect incredibly deep reservoirs of information about us: Cellular telephone networks, Internet service providers, search engines, and payment systems have data that can throw open windows onto our relationships, feelings, health conditions, business dealings, sexuality, emotions, and more.

Governing in Ignorance

Last night Jimmy Wales, the founder of Wikipedia, delivered the first Joseph K. McLaughlin Lecture at the Cato Institute. He talked about the vision, history, organization, and impact of Wikipedia, and the influence of F. A. Hayek and his essay “The Use of Knowledge in Society” on his own initial conception of a crowdsourced encyclopedia. He also discussed Wikipedia’s occasional influence on public policy decisions, such as the defeat of the Stop Online Piracy Act (SOPA) in 2012. But I was particularly struck by this line (about 43:00 in the video):

Far too often lawmakers propose laws, and it’s fairly clear that they do not even have the most rudimentary understanding of how the internet works.

It reminded me of something Bill Clinton said at the Clinton Global Initiative in 2010:

Do you know how many political and economic decisions are made in this world by people who don’t know what in the living daylights they are talking about?

That’s a lesson policymakers ought to keep in mind whenever they contemplate legislating about health care, marriage, minimum wage laws, net neutrality, banking regulations, overtime pay, or anything else. Do they really understand how the particular market or industry works? Do they really understand how the impact of a new law or regulation will ripple through affected industries? In most cases they don’t, as Aaron Powell wrote about the lessons of SOPA:

SOPA was not the exception to the rule. Instead, it was just how things are done in Washington.

The Server Will Bewitch You Shortly

It’s been a little over a year since Bernie Sanders assured America that the public was “sick of hearing” about Hillary Clinton’s “damn e-mails,” and to put it mildly, the claim has not aged well. Even before Friday’s announcement that the FBI had uncovered an additional cache of e-mails from Clinton’s personal assistant Huma Abedin—and the inevitable media feeding frenzy that followed—Clinton’s use of a private e-mail server during her tenure as Secretary of State had remained a central campaign issue. If anything, the controversy had metastasized: The FBI’s investigation into Clinton’s server, culminating in a recommendation that no criminal charges be brought, was received by many as evidence of a corrupt cover-up even more disturbing the underlying offense, a clear-cut case of a Beltway elite getting a pass for conduct that would have seen a normal schlub clapped in irons. It’s this, probably more than any other alleged misdeeds, that has made “lock her up!” a popular refrain at Donald Trump’s rowdy rallies.

As a frequent critic of the FBI’s routine demands for broadened surveillance powers, it’s heartening to see people recognizing that the Bureau is not somehow immune to improper political influence. Moreover, given the Obama DOJ’s unprecedented use of the Espionage Act to prosecute whistleblowers (rather than spies)—his administration has pursued more cases under that law than all his predecessors’ combined—it’s hard not to feel a twinge of schadenfreude when the public concludes that Clinton’s “extreme carelessness” with classified information (as FBI director James Comey characterized it) must surely be criminal too. But in large part because I’m uneasy about normalizing this aggressive approach to the Espionage Act, I think it’s necessary to explain why this widespread perception is wrong, and Comey’s conclusion that “no reasonable prosecutor” would have pursued charges against Clinton on the available facts was pretty clearly right. While it’s impossible to know what other damaging revelations the newly discovered tranche of e-mails may contain, it seems unlikely they will materially alter that basic legal conclusion.