The Daily Caller reports that Senator Harry Reid (D-NV) is planning another effort at Internet regulation—right on the heels of the SOPA/PIPA debacle. The article seems calculated to insinuate that a follow-on to SOPA/PIPA might slip into cybersecurity legislation the Senate plans to take up. Whether that’s in the works or not, I’ll detail here the privacy threats in cybersecurity language being circulated on the Hill.

A Senate draft currently making the rounds is called the “Cybersecurity Information Sharing Act of 2012.” It sets up “cybersecurity exchanges” at which government and corporate entities would share threat information and solutions.

Sharing of information does not require federal approval or planning, of course. Information sharing happens all the time according to market processes. But “information sharing” is the solution Congress has seized upon, so federal information sharing programs we will have. Think of all this as a “see something, say something” campaign for corporate computer security people. Or perhaps “e-fusion centers.”

Reading over the draft, I was struck by sweeping language purporting to create “affirmative authority to monitor and defend against cybersecurity threats.” To understand the strangeness of these words, we must start at the beginning:

We live in a free country where all that is not forbidden is allowed. There is no need in such a country for “affirmative” authority to act. So what does this section do as it in purports to permit private and governmental entities to monitor their information systems, operate active defenses, and such? It sweeps aside nearly all other laws controlling them.

“Consistent with the Constitution of the United States and notwithstanding and other provision of law,” it says (emphasis added), entities may act to preserve the security of their systems. This means that the only law controlling their actions would be the Constitution.

It’s nice that the Constitution would apply</sarcasm>, but the obligations in the Privacy Act of 1974 would not. The Electronic Communications Privacy Act would be void. Even the requirements of the E-Government Act of 2002, such as privacy impact assessments, would be swept aside.

The Constitution doesn’t constrain private actors, of course. This language would immunize them from liability under any and all regulation and under state or common law. Private actors would not be subject to suit for breaching contractual promises of confidentiality. They would not be liable for violating the privacy torts. Anything goes so long as one can make a claim to defending “information systems,” a term that refers to anything having to do with computers.

Elsewhere, the bill creates an equally sweeping immunity against law-breaking so long as the law-breaking provides information to a “cybersecurity exchange.” This is a breath-taking exemption from the civil and criminal laws that protect privacy, among other things.

(1) IN GENERAL.—No civil or criminal cause of action shall lie or be maintained in any Federal or State court against any non-Federal governmental or private entity, or any officer, employee, or agent of such an entity, and any such action shall be dismissed promptly, for the disclosure of a cybersecurity threat indicator to—
(A) a cybersecurity exchange under subsection (a)(1); or
(B) a private entity under subsection, (b)(1), provided the cybersecurity threat indicator is promptly shared with a cybersecurity exchange.

In addition to this immunity from suit, the bill creates an equally sweeping “good faith” defense:

Where a civil or criminal cause of action is not barred under paragraph (1), a good faith reliance by any person on a legislative authorization, a statutory authorization, or a good faith determination that this Act permitted the conduct complained of, is a complete defense against any civil or criminal action brought under this Act or any other law.

Good faith is a question of fact, and a corporate security official could argue successfully that she acted in good faith if a government official told her to turn over private data. This language allows the corporate sector to abandon its responsibility to follow the law in favor of following government edicts. We’ve seen attacks on the rule of law like this before.

A House Homeland Security subcommittee marked up a counterpart to this bill last week. It does not have similar language that I could find.

In 2009, I testified in the House Science Committee on cybersecurity, skeptical of the government’s ability to tackle cybersecurity but cognizant that the government must secure its own systems. “Cybersecurity exchanges” are a blind stab at addressing the many challenges in securing computers, networks, and data, and I think they are unnecessary at best. According to current plans, cybersecurity exchanges come at a devastating cost to our online privacy.

Congress seems poised once again to violate the rule from the SOPA/PIPA disaster: “First, do no harm to the Internet.”

The Senate’s SOPA Counterattack?: Cybersecurity the Undoing of Privacy is a post from Cato @ Liberty - Cato Institute Blog

Around the time of President Obama’s State of the Union speech two weeks ago, Republicans and their allies came out arguing that the Democratic Senate hadn’t produced a budget in 1,000 days. Senate Budget Committee chairman Kent Conrad (D-ND) disputes the charge.

Is it true? The new budget season started Monday, so it’s a great time to examine that question.

Budget season really did start Monday. The Congressional Budget Act has a timetable in it (at section 300) that says the president submits his budget on or before the first Monday in February. We’re underway!

But I hope you weren’t holding your breath waiting to get a glimpse of the president’s budget. The White House has kicked back its release by a week—an unfortunate symbol of how both ends of Pennsylvania Avenue flout budget processes in ways large and small.

Now to the question: When was the last Senate budget?

Let’s start with a preliminary question: What is a “budget”?

The Congressional Budget Act defines it with reference to the document it appears in, known as a “concurrent budget resolution.” That definition is gobbledegook:

On or before April 15 of each year, the Congress shall complete action on a concurrent resolution of the budget for the fiscal year beginning on October 1 of such year. The concurrent resolution shall set forth appropriate levels for the fiscal year beginning on October 1 of such year and for at least each of the 4 ensuing fiscal years for the following—
(1) totals of new budget authority and outlays;
(2) total Federal revenues and the amount, if any, by which the aggregate level of Federal revenues should be increased or decreased by bills and resolutions to be reported by the appropriate committees;
(3) the surplus or deficit in the budget;
(4) new budget authority and outlays for each major functional category, based on allocations of the total levels set forth pursuant to paragraph (1);
(5) the public debt;
(6) for purposes of Senate enforcement under this title, outlays of the old-age, survivors, and disability insurance program established under title II of the Social Security Act for the fiscal year of the resolution
and for each of the 4 succeeding fiscal years; and
(7) for purposes of Senate enforcement under this title, revenues of the old-age, survivors, and disability insurance program established under title II of the Social Security Act (and the related provisions of the Internal Revenue Code of 1986) for the fiscal year of the resolution and for each of the 4 succeeding fiscal years.

Take a look at the last budget the Senate passed, though, and you can see these things—not that it’s a clear, readable description of what the future holds for government activity.

Now, Senator Conrad objects to the charge that he hasn’t produced a budget, saying that the Budget Control Act, which passed just last August, is a budget. It’s “more extensive,” setting the budget for the current year and the next one; it’s not just a resolution, but a law; and it has caps on discretionary spending going forward ten years.

Looking at the text of the bill, a government-budget novice like myself can’t see this. It doesn’t look like other congressional budgets, and it doesn’t fit with the definition in the Congressional Budget Act.

But why do we have to accept the government’s definition of what a budget is? It’s our government, and we get to decide when we’re seeing a budget.

I went to a handy resource, called a “dictionary,” to look up the word “budget.” The first two definitions are helpful:

1. an estimate, often itemized, of expected income and expense for a given period in the future.
2. a plan of operations based on such an estimate.

Now we have something we can use! And it can help us sort out what’s going on in federal ‘budgeting.’

The president’s budget, laying out not only gross spending numbers but the agencies and bureaus where the money will be spent, is a budget, under the more extensive, second definition.

What the House and Senate do, when they do their “budgeting,” is put out gross numbers and then some detail based on functional categories like amounts to be spent on “national defense” and “community and regional development” and stuff. That … almost meets the first definition, but it certainly isn’t itemized. Congress doesn’t actually do budgets.

My conclusion—as a human being and not a budget wonk—is that the Senate has not produced a budget in more than 1,000 days. I also conclude that the Congress doesn’t really produce budgets ever.

I investigate all this because of my work on transparency. If there is going to be a transparent federal budget and transparent spending processes, they have to have some relationship to what the public expects to see and some consistency among them (such as between the president’s budget and Congress’s).

If the political charge sticks—that the Senate has failed to budget—so be it. But the problem goes deeper. Congress basically doesn’t budget. It is owned by the complexity of the federal government and incapable of budgeting in a meaningful way. Congress just spends money in the appropriations process—which it flouts just as often as its so-called “budgeting.”

No Budget in 1,000 Days? No Budget Ever! is a post from Cato @ Liberty - Cato Institute Blog

New Hampshire was the state where the “REAL ID rebellion” got its start. There, in 2006, Rep. Neal Kurk (R-Weare) took to the floor of the New Hampshire House to talk about his principled opposition to the federal national ID law.

In stirring words, Kurk urged his colleagues to overturn a committee recommendation that no action should be taken on his bill to have New Hampshire reject REAL ID. The House went on to pass his bill and half the states in the nation soon followed suit.

Now a bill pending in the New Hampshire House responds to a more insidious version of the federal government’s national ID plans: E-Verify.

E-Verify is a federal background check system that its proponents intend to be used on every person seeking work in the United States. Once in place, E-Verify would expand to new uses, giving the federal government direct regulatory control of all Americans’ lives through control of proof of identity. It’s being fitted to operate using only databases, so I’ve been referring to it as a “cardless national ID.”

New Hampshire Rep. Seth Cohn (R-Merrimack 6) has introduced a bill to prevent his state from contributing New Hampshirites’ personal data to the E-Verify system. HB 1549 would not only prohibit the state from allowing citizens’ personal data to be used in E-Verify. It would prohibit the state from requiring employers to participate in the E-Verify system.

It’s an appropriate response to the Department of Homeland Security’s latest move. You see, a branch of E-Verify is called the “RIDE” program. That stands for “Records and Information from Department of Motor Vehicles for E-Verify” (Yeah, it’s a stretch…) Basically, RIDE is the conduit through which the states are going to start passing data to the federal government, weaving together that national ID outside of the REAL ID Act.

In their desire to bring illegal immigration under control, a lot of people have convinced themselves over many years that growing the federal government and conscripting businesses into “internal enforcement” of immigration law was the way to go. Unfortunately, that route costs a lot of money, it bloats the federal government, and it requires a national ID system, which is a threat to liberty that Americans reject. My paper, “Franz Kafka’s Solution to Illegal Immigration,” goes through many of the details.

Is this the beginning of the E-Verify rebellion? It’s a welcome addition to the national debate from the “Live Free or Die” state.

Cardless National ID and the E-Verify Rebellion is a post from Cato @ Liberty - Cato Institute Blog

Because all of us are with ourselves all day every day, we naturally tend to think that our own lives are pretty standard fare. But that’s just not so in a country of 300+ million people ranging over a vast expanse. So I found worthwhile this NPR story on people who don’t have IDs, people who face difficulty with laws requiring IDs to vote. Not everyone trundles down to the DMV and plunks down money and paperwork for an ID whenever they please.

The voter ID issue is a hot one. Some are strongly committed to the idea that identification requirements are needed to suppress voter fraud. There isn’t much evidence of that problem, and to worry about impersonation fraud at polling places, one has to put aside absentee ballot fraud, which is probably much easier, as well as election fraud—rigged vote counts, for example—which is much more efficient.

States should tinker with their voting rules and processes, each seeking for itself the methods that optimally secure elections while facilitating voting. It’s a big country, and different states may require different rules. My emphasis has always been on avoiding a national voter ID system, which would inevitably be a national ID system, paving the way for greater federal control of individuals’ lives.

Photo ID Laws Mean Some Won’t Vote is a post from Cato @ Liberty - Cato Institute Blog

…on the Google privacy policy change.

The idea that people should be able to opt out of a company’s privacy policy strikes me as ludicrous.

Plus she embeds a valuable discussion among her Xtranormal friends. Highlight:

“Well, members of Congress don’t send angry letters about privacy issues very often.”

“Oh, well, actually, they do.”

Read the whole thing. Watch the whole thing. And, if you actually care, take some initiative to protect your privacy from Google, a thing you are well-empowered to do by the browser and computer you are using to view this post.

Kashmir Hill Has It Right… is a post from Cato @ Liberty - Cato Institute Blog

The House of Representatives is poised to make great strides forward in transparency, and our work over the last year aims to help them do that. Here’s how this spreadsheet (.xls) will do that.

In December, the House Administration Committee announced a plan to improve the publication of House documents. In January, a new site—docs.house.gov—went live. (It’s attractive looking, but still bare-bones.) On Thursday this week, the Committee is hosting a “Legislative Data and Transparency Conference” to examine what data is out there and what data should be out there. Little information is on the Web yet, but you can sign up to attend at the link just above.

I’ll be speaking on the last panel of the day, which deals with measuring transparency success. Likely, they chose me for this panel because I’ve already been grading the government on its publication practices.

Last September, you see, we graded Congress on how well it publishes data that would assist the public in computer-aided oversight. The summary blog post is called “Needs Improvement.” And then in December, we graded the government on publication of budget, appropriations, and spending data. That’s a joint legislative-executive responsibility, but mostly executive. The message was: “‘Needs Improvement’ is Understatement.”

How do you grade Congress and the government on their data publication?

You start out by modeling the data government should publish. We put together a data model for legislative process, for example, and then a data model for budgeting, appropriating, and spending. We got a great deal of help from folks at the Sunlight Foundation, OMB Watch, and others such as the National Priorities Project, as well as data guru Josh Tauberer, whose latest project is PopVox.

Even with all this help, these models won’t be the last word—there is much to learn yet about the data structure that will serve every use the public may want to make of information. But it’s a strong start.

Then we compared the data that’s actually out there to the practices described in my paper, “Publication Practices for Transparent Government,” and out popped the grades! They were pretty bad…

The House of Representatives aims to fix that—for its part, at least.

Now to this spreadsheet: it’s a list of the things that should be identified in congressional documents so that computers can find the most salient information in them. It also indicates the “vocabularies” that already exist for identifying many of them: members of Congress, bills, laws, statutes, committees, agencies, programs, and so on. We’ve talked about how to identify “budget authority” and appropriations (spending) so that computers can capture that information from bills and committee reports. Locations, state and foreign governments, times, meetings—all these things can be put into electronic versions of documents to allow computer-aided public oversight.

Once documents contain data like this in the proper structures, literally thousands of questions about Congress will be answered instantly.

• How much new budget authority has each member of Congress proposed? Voted for? Voted against? Allowed to go through on voice vote or unanimous consent? How about this same information by state? By region? Or by seniority?
• What title of the U.S. code do members of Congress most often propose to amend? What title do they actually amend the most?
• What bills affect my state specifically, such as by naming buildings, creating wilderness areas, changing boundaries on parks, or giving land to localities?
• How often do my member of Congress and senators break with their party?

These are just a few examples. In the hands of varied users, the data will be converted to hundreds or thousands of uses. It will go into studies performed by political scientists and it will supercharge news reporting. But more importantly, it will go into services that inform people directly and quickly about how their own representatives in Congress are acting and what they’re saying.

It will give people insight into where the money goes—from the moment new spending is proposed all the way through to when Congress spends it—or declines to spend.

Credit is due to the leadership in the House of Representative for starting this work. There is a lot to do before they show clear success. But they are way ahead of President Obama, whose Sunlight Before Signing transparency promise lags badly, and who has yet to put together a machine-readable organization chart for the executive branch of the federal government. He can easily do the latter, and coordination with Congress is essential for transparency success. The sooner that happens the better.

Helping the House Advance Data Transparency is a post from Cato @ Liberty - Cato Institute Blog

News that incautious comments on “tweeter” got British tourists excluded from the United States had Twitter alight yesterday. (Paperwork given to one of the two, on display in this news story, refers to the popular social networking site as a “Tweeter website account,” betraying some ignorance of what Twitter is.)

It’s a good chance to review how suspicion is properly—and, here, improperly—generated.

The Department of Homeland Security has been vague as yet about what actually happened. It may have been some kind of “social media analysis” like this that turned up “suspicious” Tweets leading to the exclusion, though the betting is running toward a suspicious-activity tipline. (What “turned up” the Tweets doesn’t affect my analysis here.) The boastful young Britons Tweeted about going to “destroy America” on the trip—destroy alcoholic beverages in America was almost certainly the import of that line—and dig up the grave of Marilyn Monroe.

Profoundly stilted literalism took this to be threatening language. And a failure of even brief investigation prevented DHS officials from discovering the absurdity of that literalism. It would be impossible to “dig up” Marilyn Monroe’s body, which is in a crypt at Westwood Memorial Park in Los Angeles.

I testified to the Senate Judiciary Committee in 2007 about how one might mine data for terrorists and terrorism planning, in terms that apply equally well to Twitter banter and to any criminality or wrongdoing. For valid suspicion to arise, the information collected must satisfy two criteria:

(1) It is consistent with bad behavior, such as terrorism planning or crime; and (2) it is inconsistent with innocent behavior. In . . . the classic Fourth Amendment case, Terry v. Ohio, . . .  a police officer saw Terry walking past a store multiple times, looking in furtively. This was (1) consistent with criminal planning (“casing” the store for robbery), and (2) inconsistent with innocent behavior — it didn’t look like shopping, curiosity, or unrequited love of a store clerk. The officer’s “hunch” in Terry can be described as a successful use of pattern analysis before the age of databases.

Similarly, using the phrase “destroy America” is consistent with planning to destroy America. (You want to be literal? Let’s be literal!) But it’s also consistent with talking smack, which is innocent behavior. These Tweets fail the second criterion for generating suspicion.

Twitter is nothing if not an unreliable source of people’s thinking and intentions. It’s a hotbed of irony, humor, and inside jokes. Witness this Tweet of mine from yesterday, which failed to garner the social media guffaw I sought (which is why I link to it here). Things said on Twitter will almost never be suspicious enough to justify even the briefest interrogation.

Other facts could combine with Twitter commentary to create a suspicious circumstance on extremely rare occasions, but for proper suspicion to arise, the Tweet or Tweets and all other facts must be consistent with criminal planning and inconsistent with lawful behavior. No information so far available suggests that the DHS did anything other than take Tweets literally in the face of plausible explanations by their authors that they were using hyperbole and irony. This is simple investigative incompetence.

If indeed it is a “social media analysis” program that produced this incident, the U.S. government is paying money to cause U.S. government officials to waste their time on making the United States an unattractive place to visit. That’s a cost-trifecta in the face of essentially zero prospect for any security benefit. I slept no more soundly last night knowing that some Brits were denied a chance to paint the town red in L.A.

In case it needs explaining, “paint the town red” is archaic slang. It does not imply an intention or plan to apply pigments to any building or infrastructure in Los Angeles, whether by brush, roller, or spray can.

‘Destroy America’ = Suspicion Fail is a post from Cato @ Liberty - Cato Institute Blog

In last night’s State of the Union speech, President Obama called for tax law reforms he says we need. Cato scholars have their doubts about much of what was in the speech, but my interest was piqued by the fact that he said, “Send me these tax reforms, and I will sign them right away.”

You see signing them “right away” would again violate his 2008 campaign promise to post the bills sent him by Congress online for five days before signing them.

That’s a cheeky point, but it is time to focus on campaign promises and their honesty. The beginning of President Obama’s fourth year in office is roughly the beginning of his campaign for another term.

When I first began tracking President Obama’s Sunlight Before Signing promise, I joked with friends that it was career gold because I could write hundreds of blog posts for the next four years without thinking a new thought. Well, it’s not quite that good. This is post thirty-six in the SBS series.

(Each character in that last sentence was a link to a previous post. You can spend a whole day reviewing them!)

Last Thursday, January 19th, was the end of President Obama’s third year, so it’s time to review how he’s been doing with Sunlight Before Signing. It was the president’s first broken promise, and at the mid-point of the term he had popped just above 50% in his compliance.

How has he done in the ensuing year?

Well … meh.

Of the 90 bills that became law in the last year, 55 got the Sunlight Before Signing treatment. That’s a 61.1% average, good enough to earn a middle-school student a D.

At the end of the second year, we did some analysis and graphing to explore the hunch that inconsequential bills get plenty of sunlight and the more important ones do not. We return to that analysis.

Our first look is at compliance with Sunlight Before Signing over time. The updated numbers show essentially the same as they did before. After a first year of outright failure, there has been improvement—nowhere near perfection, just improvement.

(You can also see that Congress’ output dropped dramatically in 2011. That’s a matter of indifference in terms of Sunlight Before Signing—and a good thing if you like limited government.)

Click on the image at right to see a chart of compliance and non-compliance by number of bills over time, then compliance as a percentage of bills over time, and, in the pie chart, that overall compliance figure.

We also investigated previously the hunch that important bills get less sunlight, while unimportant bills get more. Our first proxy for importance—a rough one—was the number of pages in the bills coming to the president. Generally speaking, longer bills are more important than shorter ones. The second set of charts (click on the left) show Sunlight Before Signing compliance and non-compliance over time by number of pages, compliance by percentage of pages, and overall compliance by number of pages. You can see that overall compliance drops well below 50% to about 36%.

Another proxy for importance is the number of final passage votes a bill got in the House and Senate. Generally speaking—and it’s definitely not always true—more important bills are voted on in the House, the Senate, or both. Less important bills go through on voice vote, unanimous consent, and so on. (Sometimes important bills go through without votes because the political balances are so carefully struck. That’s good for Congress “getting things done,” but not good for transparency or your ability to oversee the government.)

Go ahead and click on the image to the right and you can see the charts reflecting Sunlight Before Signing compliance and non-compliance over time with multipliers given to bills getting one or two final votes. That result is not so decisive: compliance drops by a small amount to about 50%.

There’s still time for President Obama to execute on Sunlight Before Signing. He could make a real run at transparency by signalling right now—today—that all bills will get five-days online before he signs them. If Congress wants to finish appropriations this year at the last minute. They had better do that at the last minute plus five days or else the government will shut down.

Maybe that’s a silly idea. Maybe no president in his right mind would do something like that. If so, consider that President Obama promised to do exactly that when he campaigned for the presidency. If he was being fanciful during his last campaign, voters might consider that during his next campaign, just as they consider the credibility of all candidates. President Obama’s transparency promises have been unparalleled. His results … quite paralleled.

Perhaps President Obama is going to limp to the next election without fulfilling Sunlight Before Signing. The president could still score some real transparency points by publishing a machine-readable organization chart for the executive branch, with agencies, bureaus, programs, and projects all uniquely identified for computer processing. That would be big, and it would not be that hard.

In the meantime, here are the Sunlight Before Signing results for all the bills signed into law during President Obama’s third year.

[Brackets indicate a link from Whitehouse.gov to Thomas legislative database]

Sunlight Before Signing, Year Three is a post from Cato @ Liberty - Cato Institute Blog

He’s not unrestrained, but Larry Downes sees the remarkable downfall of legislation to regulate the Internet’s engineering as a harbinger of things to come. Jerry Brito, meanwhile, tells us “Why We Won’t See Many Protests like the SOPA Blackout.”

They’re both right—over different time-horizons. The information environment and economics of political organization today are still quite stacked against public participation in our unwieldy federal government. But in time this will change. Congress and Washington, D.C.’s advocacy and lobbying groups now have some idea what the future will feel like.

SOPA/PIPA: Harbinger or Aberration? is a post from Cato @ Liberty - Cato Institute Blog

Does a more careful reading of the Supreme Court’s decision in U.S. v. Jones turn up a lurking victory for the government?

Modern media moves so fast that the second-day story happens in the afternoon of the first. The Supreme Court ruled unanimously Monday morning that government agents conduct a Fourth Amendment search when they place a GPS device on a private vehicle and use it to monitor a suspect’s whereabouts for weeks at a time. Monday afternoon, a couple of commentators suggested that the case is less a win than many thought because it didn’t explicitly rule that a warrant is required to attach a GPS device to a vehicle.

Writing on the Volokh Conspiracy blog, George Washington University law professor Orin Kerr noted “What Jones Does Not Hold.”

The Court declined to reach when the installation of the device is reasonable or unreasonable. … So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”

And over on Scotusblog, Tom Goldstein found that “The Government Fared Much Better Than Everyone Realizes“:

[D]oes the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.

So there is a constitutional search when the government attaches a GPS device to a vehicle, but the Court conspicuously declined to say that such a search requires a warrant. Do we have an “a-ha” moment?

When the Supreme Court granted certiorari in the case, it took the unusual step of adding to the questions it wanted addressed. In addition to “[w]hether the warrantless use of a tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment,” the Court wanted to know “whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.” These are both compound questions, but the dimension added by the second is the Fourth Amendment meaning of attaching a device to a vehicle. The case was about attaching a device to a vehicle, and if the Court didn’t walk through every clause in each of the questions presented, that’s why.

On that central question in the case, the government argued the following: “Attaching the GPS tracking device to respondent’s vehicle was not a search or seizure under the Fourth Amendment.” The government lost, full stop.

Now, it’s true that the Court’s majority opinion didn’t explictly find that the “search” that occurs when attaching and using a GPS device requires a warrant, but look at its characterization of the opinion it affirmed: “The United States Court of Appeals for the District of Columbia Circuit reversed [Jones's] conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment.”

The Court did decline to consider the argument that the government might be able to attach a device based on reasonable suspicion or probable cause—that argument was “forfeited” by the government’s failure to raise it in the lower courts—but if the Supreme Court were limiting its holding to the attachment-as-search issue, it would have remanded the case back to the lower courts for further proceedings consistent with the opinion. It did not, and the sensible inference to draw from that is that the general rule applies: a warrant is required in the absence of one of the customary exceptions. Failing to make that explicit was not “opening a door” to a latent government victory. U.S. v. Jones was a unanimous decision rejecting the government’s warrantless use of outré technology to defeat the natural privacy protections provided by law and physics.

At least one serious lawyer I know has raised the point that I address here, and it is a real one, but some in the commentariat are a little too showy with their analysis and far too willing to go looking for a government victory in what is nothing other than a government defeat.

The Second-Day Story on U.S. v. Jones is a post from Cato @ Liberty - Cato Institute Blog

The Supreme Court has delivered a big win for privacy in U.S. v. Jones. That’s the case in which government agents placed a GPS device on a car and used it to track a person round-the-clock for four weeks. The question before the Court was whether the government may do this in the absence of a valid warrant. All nine justices say No.

That’s big, important news. The Supreme Court will not allow developments in technology to outstrip constitutional protections the way it did in Olmstead.

Olmstead v. United States was a 1928 decision in which the Court held that there was no Fourth Amendment search or seizure involved in wiretapping because law enforcement made “no entry of the houses or offices of the defendants.” It took 39 years for the Court to revisit that restrictive, property-based ruling and find that Fourth Amendment interests exist outside of buildings. “[T]he Fourth Amendment protects people, not places” went the famous line from Katz v. United States (1967), which has been the lodestar ever since.

For its good outcome, though, Katz has not served the Fourth Amendment and privacy very well. The Cato Institute’s brief argued to the Court that the doctrine arising from Katz “is weak as a rule for deciding cases.” As developed since 1967, “the ‘reasonable expectation of privacy’ test reverses the inquiry required by the Fourth Amendment and biases Fourth Amendment doctrine against privacy.”

Without rejecting Katz and reasonable expectations, the Jones majority returned to property rights as a basis for Fourth Amendment protection. “The Government physically occupied private property for the purpose of obtaining information” when it attached a GPS device to a private vehicle and used it to gather information. This was a search that the government could not conduct without a valid warrant.

The property rationale for deciding the case had the support of five justices, led by Justice Scalia. The other four justices would have used “reasonable expectations” to decide the same way, so they concurred in the judgement but not the decision. They found many flaws in the use of property and “18th-century tort law” to decide the case.

Justice Sotomayor was explicit in supporting both rationales for protecting privacy. With Justice Scalia, she argued, “When the Government physically invades personal property to gather information, a search occurs.” This language—more clear, and using the legal term of art “personal property,” which Justica Scalia did not—would seem to encompass objects like cell phones, the crucial tool we use today to collect, maintain, and transport our digital effects. Justice Sotomayor emphasized in her separate concurrence that the majority did not reject Katz and “reasonable expectations” in using property as the grounds for this decision.

Justice Sotomayor also deserves special notice for mentioning the pernicious third-party doctrine. “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” The third-party doctrine cuts against our Fourth Amendment interests in information we share with ISPs, email service providers, financial services providers, and so on. Reconsidering it is very necessary.

Justice Alito’s concurrence is no ringing endorsement of the “reasonable expectation of privacy” test. But he and the justices joining him see many problems with applying Justice Scalia’s property rationale as they interpreted it.

Along with the Scalia-authored Kyllo decision of 2001, Jones is a break from precedent. It may seem like a return to the past, but it is also a return to a foundation on which privacy can be more secure.

More commentary here in the coming days and weeks will explore the case’s meaning more fully. Hopefully, more Supreme Court cases in coming years and decades will clarify and improve Fourth Amendment doctrine.

U.S. v. Jones: A Big Privacy Win is a post from Cato @ Liberty - Cato Institute Blog

That’s NYPD Commissioner Ray Kelly touting a new technology called “terahertz imaging detection” to a local news outlet.

Terahertz radiation is electromagnetic waves at the high end of the infrared band, just below the microwave band. The waves can penetrate a wide variety of non-conducting materials, such as clothing, paper, cardboard, wood, masonry, plastic, and ceramics, but they can’t penetrate metal or water. Thus, directing terahertz radiation at a person and capturing the waves that bounce off them can reveal what is under their clothes without the discomfort and danger of going “hands-on” in a search for weapons. Many materials have unique spectral “fingerprints” in the terahertz range, so terahertz imaging can be tuned to reveal only certain materials. (In case you’re wondering, I got this information off the top of my head…)

Will the machines be tuned to display only particular materials? Or will they display images of breasts, buttocks, and crotches? The TSA’s “strip-search machines” got the moniker they have because they did the latter—until the agency tardily re-configured them.

Then there’s the flip-side of not going “hands-on.” Terahertz imaging detection doesn’t natively reveal to the person being searched that law enforcement has picked him or her out for scrutiny. A pat-down certainly lets the individual know he or she is being searched, positioning one to observe and challenge one’s treatment as a suspect. Terahertz imaging lacks this natural—if insufficient—check on abuse.

So terahertz imaging is not just a “hi-tech pat-down.” Its potential takes what would be a pat-down and makes it into a secret, but intimate, visual examination—a surreptitious strip-search. Pat-downs and secret strip-searches are very different things, and it is not necessarily reasonable, where a pat-down might be called for, to use terahertz imaging.

And that brings us to the fundamental problem with Commissioner Kelly’s proffer to use this technology at a “specific event” or at a “shooting-prone location.” These contexts do not create the individualized suspicion that Fourth Amendment law demands when government agents are going to examine intimate details of a person’s body and concealed possessions.

It is certainly possible to devise a terahertz imaging device and a set of use protocols that are constitutional and appropriate for routine, domestic law enforcement, but Commissioner Kelly hasn’t thought of one, and I can’t either.

Consider the dollar costs and potential health effects of terahertz imaging detection, it might just be that the pat-downs pass muster far better than the high-tech gadgetry.

“You could use it at a specific event. You could use it at a shooting-prone location…” is a post from Cato @ Liberty - Cato Institute Blog

Imagine that Congress passed a law setting up a procedure that could require ordinary citizens like you to remove telephone numbers from your phone book or from the “contacts” list in your phone. What about a policy that cut off the phone lines to an entire building because some of its tenants used the phone to plot thefts or fraud? Would it be okay with you if the user of the numbers coming out of your phone records or the tenants of the cut-off building had been adjudged “rogue” users of the phone?

Cutting off phone lines is the closest familiar parallel to what Congress is considering in two bills nicknamed “SOPA” and “PIPA”—the “Stop Online Piracy Act” and the “PROTECT IP Act.”

Julian Sanchez has vigorously argued several points about these bills. Here, I’ll try to describe what they try to do to the Internet.

Simplifying, every computer and server has an IP (or “Internet Protocol”) address, which is a set of numbers that uniquely identify its location on the Internet. The IP address for the server hosting Cato’s Spanish language site, elcato.org, for example, is 67.192.234.234.

Now, these numbers are hard to remember, so there is a system that translates IP addresses into something more familiar. That’s the domain name system, or “DNS.” The domain name system takes the memorable name that you type into the address bar of your computer, such as elcato.org, and it looks up the IP address so you can be forwarded along to the IP address of your choice.

One of the major ideas behind SOPA and PIPA is to cut Internet sites that violate copyright out of the domain name system. No longer could typing “elcato.org” get you to the Web site you wanted to visit. Much of the debate has been about the legal process for determining whether to strike out a domain name.

But preventing a domain name lookup doesn’t take the site off the Internet. It just makes it slightly harder to access. You can prove it to yourself right now by copying “67.192.234.234″ (without the quotes) and plugging it into your address bar. (The Internet is complicated. Some of you might be directed to other Cato sites.) Then come back here and read on, por favor!

The government would require law-abiding citizens to “black out” phone numbers—or Internet service providers to do the same with domain names—for this little effect on wrongdoing? It doesn’t make sense. The practical burdens on the law-abiding Internet service provider would be large. “Blacking out” an entire building—just like a Web site—would cut off the lawful communications right along with the unlawful ones. It’s through-the-looking-glass information control, with enormous potential to obstruct entirely lawful communications and impinge on First Amendment rights.

Which is why many Web sites today are “blacking out” in protest. In various ways, sites like Craigslist.org, Wikipedia, and many others are signaling to their visitors that Congress is threatening the core functioning of the Internet with bills like SOPA and PIPA. And threatening all of our freedom to communicate.

The Internet is not the government’s to regulate. It is an agreement on a set of protocols—a language that computers use to talk to one another. That language is the envelope in which our communications—our First-Amendment-protected speech—travels in hundreds of different forms.

The Internet community is growing in power. (Let’s not be triumphal—government authorities will use every wile to maintain control.) Hopefully the people who get engaged to fight SOPA and PIPA will recognize the many ways that the government regulates and limits information flows through technical means. The federal government exercises tight control over electromagnetic spectrum, for example, and it claims authority to impose public-utility-style regulation of Internet service provision in the name of “net neutrality.”

Under the better view—the view of freedom behind opposition to SOPA and PIPA—these things are not the government’s to regulate.

The Internet Is Not .gov’s to Regulate is a post from Cato @ Liberty - Cato Institute Blog

The Freakonomics blog has an excellent post on the bills in Congress popularly known as SOPA and PIPA. The “Stop Online Piracy Act” and the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act” aka the “PROTECT IP Act” would attempt to frustrate online copyright violations by tinkering with the inner workings of the Internet.

Would amending the Internet be justified? The post is called “How Much Do Music and Movie Piracy Really Hurt the U.S. Economy?“:

Supporters of stronger intellectual property enforcement … argue that online piracy is a huge problem, one which costs the U.S. economy between $200 and $250 billion per year, and is responsible for the loss of 750,000 American jobs. These numbers seem truly dire: a $250 billion per year loss would be almost $800 for every man, woman, and child in America. And 750,000 jobs – that’s twice the number of those employed in the entire motion picture industry in 2010. The good news is that the numbers are wrong …

Freakonomics’ authors picked up two good authorities: Cato’s own Julian Sanchez and Cato’s own (adjunct) Tim Lee. It’s nice to see Cato scholars getting high-profile credit for their dogged insistence on real numbers, something Congress routinely fails to exhibit.

Losses from violations of copyright law are hard to calculate.

There are certainly a lot of people who download music and movies without paying. It’s clear that, at least in some cases, piracy substitutes for a legitimate transaction … In other cases, the person pirating the movie or song would never have bought it. This is especially true if the consumer lives in a relatively poor country, like China, and is simply unable to afford to pay for the films and music he downloads. Do we count this latter category of downloads as “lost sales”? Not if we’re honest.

And there’s another problem: even in the instances where Internet piracy results in a lost sale, how does that lost sale affect the job market? While jobs may be lost in the movie or music industry, they might be created in another. Money that a pirate doesn’t spend on movies and songs is almost certain to be spent elsewhere. Let’s say it gets spent on skateboards — the same dollar lost by Sony Pictures may be gained by Alien Workshop, a company that makes skateboards.

The challenges go deeper: The theoretical arguments about intellectual property laws are a congeries. Libertarian advocates of statutory intellectual property protection will cite Ayn Rand, who was a stalwart on defending creations of the mind as property. But a coherent system of rights does not produce conflicting claims, and intellectual property laws seem to exalt the property of some at a cost to the liberty of others. The some, in this case, are the music and movie industries, the others, Internet content companies and users.

This area still needs a good deal of sorting out. For the time being, a firm insistence on real numbers is a good thing. Serious empirical work is sorely needed. Killing off bogus numbers can only go so far.

A Dogged Insistence on Real Numbers is a post from Cato @ Liberty - Cato Institute Blog

John Mueller was right and everyone else was wrong. (Well, not everyone else…)

That’s Cato senior fellow John Mueller. He noted on the National Interest blog last week that 79 per cent of top terrorism experts queried in 2006 thought it was likely or certain that there would be another major terrorist attack in the United States by the end of 2011. They got it wrong.

When the survey came out, it touted these experts as the “very people who have run America’s national-security apparatus over the past half century.” Mueller lampoons them thus:

The Very People’s 79 percent error rate is especially impressive because, although there had been quite a bit of terrorist activity in Iraq and elsewhere during the four-and-a-half years between 9/11 and when the survey was conducted, none of these attacks even remotely approached the destruction of the one on September 11. Nor, for that matter, had any terrorist attack during the four-and-a-half millennia previous to that date. In addition, although terrorist plots have been rolled up within the United States, none of the plotters threatened to wreak destruction on anything like the scale of 9/11, except perhaps in a few moments of movieland-fantasy musings.

Mueller was one of few suggesting in 2006—and well before—that 9/11 might be more of an aberration than a harbinger.

Mueller’s studied correctness so far is not proof of what the future holds, of course. If you want to, it is certainly possible to cling to the threat of terrorism and the metastasis of policies that purport to address your fears. Part of terrorism’s design is its operation on fear to produce cognitive errors like probability neglect, for example.

But thanks to Mueller, terrorism is holding fewer and fewer people in thrall. It is a serious, but manageable security threat. Those still transfixed by terrorism may add another fear to their long list: They may be mocked by the man who knows the subject matter better.

Mueller Right; Terror Experts Wrong is a post from Cato @ Liberty - Cato Institute Blog

At a recent Cato event on transparency, I emphasized that there is no federal government “organization chart” published in a way computers can use.

Here’s what I mean:

Appendix C of the Office of Management and Budget’s Circular A-11 is the White House’s definitive public listing of agencies and bureaus, along with their OMB and Treasury codes—unique identifiers for the agencies and bureaus of the federal government.

First problem: It’s a PDF document. To be computer-usable this should be represented in digital form as a lookup table.

But beyond that, it doesn’t follow a coherent organization. There’s an agency code (“200″) called “Other Defense Civil Programs,” for example. There’s obviously no agency called “Other Defense Civil Programs.” That’s a catch-all description, not an agency.

With most agencies, the bureau codes refer to bureaus, such as the Bureau of Land Management (bureau code: “04″) in the Department of the Interior (agency code: “010″), but with respect to the Department of Defense (agency code: “007″), the bureau codes become functional descriptions such as “Military Personnel” (“05″). There is no bureau in the Department of Defense called “Military Personnel.”

Even the most basic organizational information is a hash, and it’s published in PDF, unusable for computer-assisted oversight of the government!

The House appears committed to improving its publication practices. If the administration wants to advance the ball on transparency for its part, it will begin to publish coherent information—starting with basic information about the organization of the executive branch—in machine-readable form, using standardized identifiers. An edict from OMB to harmonize on identifiers down to the program level could be implemented in months, if not weeks.

My recent paper “Publication Practices for Transparent Government” talks about what to do. Our data model for budgeting, appropriating, and spending articulates how government agencies, bureaus, programs, and projects—and the relationships among them—should be represented.

There’s No Machine-Readable Government Org Chart is a post from Cato @ Liberty - Cato Institute Blog

It’s a valuable public good, research is, isn’t it? Think of where we’d be without it! I mean, it was government research that came up with the Internet, for heaven sake.

That’s a response to the argument I made last week against government funding of scientific research. Moving away from public funding of scientific research would solve the problem of private companies capturing publication spoils from research that taxpayers funded.

The Defense Advanced Research Projects Agency did indeed come up with and popularize the protocol called TCP/IP, which the Internet uses. (Everyone’s use of the protocol really makes the Internet what it is, of course, but nevermind that.)

To take the Internet as proof that the government is a necessary producer of research and innovation, you have to reject the scientific method. Unfortunately, there are rarely controls in public policy. We can’t find out what would have happened if government policy had taken a different course, so we don’t know anything more about who should fund research from the fact that government-funded research has produced good things in the past.

But what would have happened if U.S. public policy had taken a different course? I’ve thought about the impossible-to-answer question of where we would have been without DARPA and other government influences on telecom. What most people don’t consider, I believe, is the restraining influence the government-granted AT&T monopoly had on telecommunications for most of the 20th century. AT&T developed a “Teletypewriter Exchange” system in 1931, for example, but had no need to develop it, there being little or no competitive pressure to do so. (Its patent on attaching devices to phone wires undoubtedly helped as well, preventing anyone using AT&T’s wires for modem service.)

Had there been competition, I suspect that someone would have come up with the idea of packet-switched networks—that’s what the Internet is—before Leonard Kleinrock did in 1962. Kleinrock was a student at MIT—he wasn’t at DARPA, which didn’t get into packet-switching until about 1966. (Then again, MIT was almost certainly awash in government money—specifically military money—so there you go. Maybe we owe all the good things we’ve got to war, but I doubt it.)

My guess—and it’s only that—is that we would have had the Internet some decades earlier if not for government interventions in telecommunications. We probably would have had multiple, competing “Internets,” actually, adopted more slowly than the Internet we got. (In a chapter of Privacy in America: Interdisciplinary Perspectives, I explored how government has accelerated the development of computing and communications, overpowering society’s capacity to adjust, with negative consequences for privacy.)

Support for government-funded research requires one to elide opportunity costs, the things foregone when one thing is chosen. As I said before, tradeoffs are ineluctable: Money spent on government research takes away from private research, or from other priorities such as reducing debt. In the absence of taxation to support research, the money would go to the public’s priorities as determined directly by the public in manifold spending and investing decision. Taxation and spending on government research is merely the substitution of centralized, political decision-making for a distributed, direct decision-making system. Its supporters are generally going to be beneficiaries of that system—elites, in short.

Even these beneficiaries of the status quo tend to agree that political decisions about funding for scientific research are warped. The solution to that problem, they’ll say, is fixing the political system—that is, creating a political system that is not so political.

Such a breakthrough is as unlikely as the invention of water that is not wet. Perhaps we can put DARPA on both projects.

But Don’t We Really Need Government Research? is a post from Cato @ Liberty - Cato Institute Blog

I came across an interesting information policy scuffle yesterday. It’s worth knowing about in general, and I’ll share my liberconoclastic view of things below.

Congressman Darrell Issa (R-CA) has introduced a bill called the Research Works Act. The consensus is that it’s meant to keep government-funded research from being published for free. This would keep the publication of that research going through scholarly and scientific journals, neatly maintaining profits for an industry that society might not need while restricting public access to research the U.S. taxpayer paid for. (I have my doubts that the language of the bill actually successfully does that, but that’s inconsequential.)

Here’s a good opponent-side article on the bill. The Association of American Publishers likes the bill.

On a discussion list, Jonathan Band articulated how the business of government-funded research works. It’s helpful to know if you haven’t focused on this area before:

1. Federal and state governments, directly or indirectly, pay salaries of researchers.
2. Federal government awards grants for specific research projects. Average NIH grant is around $500,000.
3. Researcher performs the research and writes a draft article about it.
4. Researcher submits the draft article to publisher.
5. Publisher requires the researcher to transfer the copyright in the draft article (for free) before it will touch the draft.
6. Publisher emails the draft article to other researchers in the field.
7. These “peers” review the article for free as part of their contribution to the field. (As noted in step 1, their salaries are paid by government.)
8. The researcher revises the draft in response to the peers’ comments.
9. Publisher does copy editing and publishes article. Publishers acknowledge that their costs per article are under $5,000.
10. Publisher sells subscriptions to research libraries, which ultimately are largely government funded.

“In other words,” Band concludes, “the public invests $500,000 in the creation of the article, and the publisher invests under $5,000. Yet, the publisher recoups all the profits from the sale of the article. Profit margins for STM publishers exceed 40%.”

I’m inclined to share these concerns. It appears to be a classic example of regulatory controls—in this case, on information—creating supra-normal rents for a particular business sector.

My conclusion is a little different, though. You see, to me, what Band describes is a situation where researchers—who nobody is paying their own money to hire—are doing research that nobody is paying their own money to produce, which results in journal articles that nobody is paying their own money to read. Privatized profit from government-funded research is as anathema to me as the next open government advocate, but I would solve the problem by letting private ordering decide where research dollars go.

Is this a retrograde argument against research? Who could possibly be against research? Publicly funded research is like nutritious vegetables for a healthy modern society!

Well, I’m against researchers, research, and research results that nobody pays their own money for because it’s demanded by political actors responding to political cues. I would rather have research dollars meted out through private ordering, because then research dollars would go to where they’re most likely to produce the scientific and intellectual gains society actually wants.

Tradeoffs are ineluctable: Money spent on government research takes away from private research, or from other priorities such as reducing debt, or reducing taxes so I can spend my money on things like donating to charity or to the impoverished individual of my choice.

Open Government Research—or Maybe Private Ordering is a post from Cato @ Liberty - Cato Institute Blog

The Federal Trade Commission has no jurisdiction over government entities so when it looks with concern at the use of facial recognition technology, it’s looking at the private sector.

Facial recognition is only one of many biometric technologies, of course, and Congress is pushing hard for biometrics that can help track and control us for various purposes. If anyone should be looking with concern, it should be us looking at the federal government.

There are legitimate uses for biometrics, of course, and well-designed implementations will undoubtedly benefit us all. But biometrics programs implemented for the government will tend to prioritize hoovering up federal cash over striking delicate balances among cost, effectiveness, privacy, and civil liberties.

So let’s look at how Congress is pressing—and in one case insufficiently restraining—the rapid advance of biometrics.

H.R. 658, the FAA Reauthorization and Reform Act of 2011, has passed the House and awaits action in the Senate. It says that “improved pilot licenses” must be capable “of accommodating a digital photograph, a biometric identifier, and any other unique identifier that the Administrator considers necessary.”

H.R. 1690, the MODERN Security Credentials Act, establishes that air carriers, airport operators, and governments may not employ or contract for the services of a person who has been denied a TWIC card. “TWIC” stands for “Transportation Worker Identity Card,” the vain post-9/11 effort to secure transportation facilities from bad people. TWIC cards use biometrics.

The Army deploys biometrics. Public Law 112-10, the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (cost per U.S. family: $13,500+) allowed spending on Army field operating agencies “established to improve the effectiveness and efficiencies of biometric activities and to integrate common biometric technologies throughout the Department of Defense.”

There are lots of biometrics plans in the immigration area. H.R. 1842 is an immigration bill called the Development, Relief, and Education for Alien Minors Act of 2011. (Senate version: S. 952) It would allow an otherwise qualified immigrant to get conditional permanent resident status only after submitting biometric and biographic data for use in security and law enforcement background checks. (Alternative procedures would be available for applicants unable to provide such data because of a physical impairment.)

S. 1258 does roughly the same thing with regard to any lawful immigration status. This bill is called the Comprehensive Immigration Reform Act of 2011, one of many attempts at comprehensive reform. In addition to requiring immigrants to submit biometrics, it also requires the government to issue “documentary evidence of lawful prospective immigrant status” that includes a digitized photograph and at least one other biometric identifier. The bill would also reinforce the use of biometrics in employer background checks and at the border.

H.R. 2463, the Border Security Technology Innovation Act of 2011, calls for continued study of mobile biometric technologies at the border. The Under Secretary for Science and Technology of the Department of Homeland Security would coordinate this research with other biometric identification programs within DHS.

H.R. 2895, the Legal Agricultural Workforce Act, would create a nonimmigrant agricultural worker program. In the program each nonimmigrant agricultural worker would get an identification card that contains biometric identifiers, including fingerprints and a digital photograph.

S. 1384, The HARVEST Act of 2011, is similar. In providing for the temporary employment of foreign agricultural workers, it calls for “a single machine-readable, tamper-resistant, and counterfeit-resistant document” that verifies the identity of the alien through the use of at least one biometric identifier.

There’s more than just immigration. Pursuing waste, fraud, and abuse, H.R. 3735, the Medicare Fraud Enforcement and Prevention Act of 2011, would establish a biometric technology pilot program. The five-year pilot program would use biometric technology seeking to ensure that Medicare beneficiaries “are physically present” when receiving items and services reimbursable under Medicare. How many biometric scanners would have to be out there for that to work?

S. 744, the Passport Identity Verification Act, calls on the Secretary of State to conduct a study into whether people applying for or renewing passports should provide biometric information, including photographs that facilitate the use of facial recognition technology. I bet the answer they get back is “Yes!” That’s how you build programs in the federal government: do a study, then a pilot program, and then—bingo—you’ve got a full-fledged, permanent drain on the public fisc.

Speaking of money, S. 1604, the Emergency Port of Entry Personnel and Infrastructure Funding Act of 2011, establishes a grant program in which the Department of Homeland Security would give cash out to state and local law enforcement for the purchase of various technologies including “biometric devices.”

I mentioned that there is a bill that would restrain biometrics insufficiently. H.R. 654 is the Do Not Track Me Online Act. It would direct the Federal Trade Commission to prescribe regulations regarding the collection and use of information obtained by tracking the Internet activity of an individual. The bill would treat unique biometric data, including fingerprints and retina scans, as “sensitive information” while allowing the FTC to modify its definitions.

And the FTC would have to modify the definitions because one’s face is unique biometric data, meaning that anyone who stores photographs online would be subject to regulation under the bill—oh, except the government.

The bill specifically excludes “the Federal Government or any instrumentality of the Federal Government, nor the government of any State or political subdivision of a State.” Too bad biometric sensors don’t pick up hypocrisy.

So there you have it. The Congress is quite engaged in pushing biometrics, including facial recognition. The one bill I found to restrain their use doesn’t apply to the federal government or the states. I’ll be keeping an eye on all this, while the government uses lasers and infra-red scanners to watch all of us….

Congress Pushes Biometrics is a post from Cato @ Liberty - Cato Institute Blog

At a recent Capitol Hill briefing on government transparency, I made an effort to describe the importance of getting data from the government reflecting its deliberations, management, and results.

I analogized to the World Wide Web. The structure that allows you to find and then view a blog post as a blog post is called hypertext markup language, or html. HTML is what made the Internet into the huge, rollicking information machine you see today. Think of the darkness we lived in before we had it.

Government information is not yet published in useable formats—as data—for the public to use as it sees fit. We need government information published as data, so we can connect it in new ways, the way the World Wide Web allowed connections among documents, images, and sounds.

And when you connect data together, you get power in a way that doesn’t happen with the web, with documents. You get this really huge power out of it.

Tim Berners-Lee was not thinking of wresting power from government when he said that, but the inventor of the World Web does a better job than I could of arguing for getting data and making it available for any use. We’ll look back on today with bemusement and surprise at the paucity of information we had about our government’s activities and expenditures.

Why Data Transparency? is a post from Cato @ Liberty - Cato Institute Blog