Author Archive
Sunlight Before Signing . . . Clouded
I wrote the other day that it was poor implementation of President Obama’s Sunlight Before Signing promise to post bills for public review before Congress has sent them to the president. (The ideal time to start the Sunlight Before Signing five-day clock is “presentment,” the formal step when Congress sends a bill to the president.)
Today, three bills that have not been presented to the president are posted on Whitehouse.gov as if they are ready for him to sign. (One of them, S. 1508, has been cleared for the president, but not presented. The other two haven’t seen final votes in Congress.)
(Update: Later this morning, a fourth bill was added. H.R. 5502 has been passed by the House and Senate and cleared for the White House, but not presented, according to the Thomas legislative reporting system. It may be that the bill has been presented, but the fact is not yet reported on Thomas. Similarly, H.R. 4173 did have its final vote in Congress yesterday—it was my error to say otherwise—but its presentment is not indicated on Thomas. Based on that, I presume it has not been presented, but I cannot be sure. These facts—ahem—“cloud” this critique of Whitehouse.gov practice.)
They have the notation “In Progress” next to them rather than the date on which they were posted. What that means is lost on me, and I’m a lawyer with years of experience on Capitol Hill and more than a decade in public policy. Where does this leave Joe and Jane Six-Pack?
Transparency is about making public policy accessible to ordinary people so they can oversee their government. This doesn’t help.
Overall, the news remains good. The White House has created an institutional practice of posting bills online for five days before the president signs them, as he promised he would do. Perhaps it’s because we’re coming so close to full implementation of an important transparency promise that it’s disappointing to see this odd detour into posting bills that are not ready for the president’s signature.
WaPo on No-Fly: Black Hole to Quicksand
I wrote here Monday, and the Washington Post editorialized today, about the lawsuit in which the ACLU is representing a group of people who believe they have been wrongly placed on the government’s no-fly list. I find the Post‘s editorial needlessly equivocal and muddied.
The plaintiffs “have a point — to a point,” says the Post. “[T]he list is essentially a black hole.” But it never says how their suit overshoots the mark.
When someone vindicating a constitutional right has a point, he or she has a point—period. Due process is a right prescribed by the Constitution, not something to dither about like Hamlet.
Hewing to a reasoned-sounding middle ground, the Post says, “There are legitimate law enforcement reasons for keeping the list secret: Disclosure of such information would tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny.”
Think this through. The no-fly list is self-revealing. Any terrorist who tries to fly and can’t is “tipped off” that he or she is a suspect. (Does it matter whether the list or something else prevented him or her from flying? No.) Said terrorist will take steps to evade the list or someone else will take over—terrorists are fungible. The benefit of secrecy is small to the point of superfluous.
The Post correctly states that “U.S. citizens who believe they are on the list because of bad information should have a chance to challenge that designation before an independent arbiter.” But then it goes all mealy: “A federal court may be an appropriate forum, if governed by procedural safeguards to protect national security information. Creating an independent review panel within the executive might also meet the need.”
The secrecy rationale is tiny. The federal courts have vast experience with issues of all sensitivities. Developing a new (suitably) ”independent” panel would be a mountainous chore. And the constitutional doctrine of separation of powers cuts strongly against the Post‘s proposal.
This editorial’s “middle ground” looks a lot like quicksand—a lot like the black hole the no-fly list is.
Sunlight Before Signing: ‘Expected’ Is not ‘Pending’
Early this month, I reported on President Obama’s recent moves to implement Sunlight Before Signing and improvements in his Sunlight Before Signing average. The news is good, though we’ll pause here to highlight a small quibble with White House practice.
The essence of the president’s promise to post bills online for five days was to give the public a chance to review the legislation coming to him from Congress for a decent interval before he signs it. If Whitehouse.gov consistently posts all bills Congress passes, as promised, the public will develop a consistent practice of taking a last look before it becomes law.
One day, the national crowdsourcing effort may turn up an error or a late-coming provision that causes the president to send a bill back to Congress for retouching. Its influence overall will be to discourage members of Congress from slipping last-minute, parochial amendments into bills that they know will become law just hours later.
A White House practice of posting bills before they come down Pennsylvania Avenue would frustrate development of the habit of public review. If bills are posted prematurely, ordinary Americans who do not follow the day-to-day of the legislative process will see their time wasted when they review the early version of a bill only to find that it is later amended by Congress. People will shy away from participating in public review of bills coming to the president.
This is currently the risk with H.R. 4173, the Restoring American Financial Stability Act of 2010, Congress’ plan to revamp financial services regulation in the United States. It was posted on Whitehouse.gov June 30th, the day that the House-Senate compromise on the bill passed the House, and it is the only bill on the “Pending Legislation” page at this writing. But the Senate did not agree to the conference report at that time, and the bill may see changes before it passes, or it may fail to pass altogether.
We credited the White House with a Sunlight Before Signing “win” when it posted the DTV Delay Act for five days after final passage, even though it wasn’t five days after presentment—the formal step in which Congress passes a bill to the president. This is because a bill will be unchanged after final passage. The public can review it confident that it is in its final form.
This is not the case with the financial services regulation revamp. The bill should not be getting sunlight on the White House’s web site while it still sits in Congress. A bill that the White House expects to receive is not “pending” in a sense consistent with President Obama’s Sunlight Before Signing pledge to voters and the public.
Time to End the “Gore Tax”
When the Telecommunications Act of 1996 passed, section 254 was dubbed the “Gore Tax” by detractors of the policy and the then-Vice President whose project it was.
A system of cross-subsidy that was implicit in the old AT&T was made explicit as a tax on interstate telecom services—euphemistically referred to as a “contribution”—and expanded to reach to a small universe of sympathetic interests—more accurately, the telecommunications providers serving those interests.
The amount of the “contribution” would be set by the Federal Communications Commission. That is, the agency would set the level of taxes on telecommunications, then hand out the money it produced by taxing. (I wrote previously about the Taxpayers Defense Act (House -105th Congress, House – 106th, Senate – 106th), introduced in recognition that this is taxation without representation.)
Under the program, subsidies go in four directions: to high-cost telecom users, such as those in remote locations; to low-income telecom users; to schools and libraries; and to rural health care efforts. Surprise, surprise! The program has grown over the years, and it has been plagued by allegations of corruption and misuse.
To its credit, the House Energy and Commerce Committee has been doing some oversight, and it recently sent a letter asking the FCC to provide some data on the program. The FCC has responded, and the results are striking.
The FCC’s list of the top ten recipients and the subsidies they received in 2007, 2008, and 2009 show hundreds of millions of dollars going to large telecom firms, more than a billion each to AT&T and Verizon.
A state by state list of subsidies under each of the four universal service programs also shows each state’s “contribution” and whether it was a net winner or loser. The total “dollar flow” is negative by some $187 million in 2009. That’s the money that went to administrative expenses—essentially Washington, D.C.’s take.
Then there’s the shocking list of the largest per line subsidies. Westgate Communications in Washington state received $301,966 in 2009 to support 17 subscribers to their services—a subsidy of $17,763 per line. Adak Eagle Enterprises in Hawaii received $23,945,376 for 2,192 customers, a subsidy of $10,926 per customer. Subscription news service TechLawJournal notes that the top five per line subsidies are all in states with representation on the Senate Commerce Committee.
Folks with the biggest heart-to-brain ratio might interpret this as good news: People who otherwise might not have telecommunications services are getting it! But even a big-heart might recognize the brainiac/green-eyeshade perspective. These subsidies do at enormous cost what might be done better and cheaper with competition and innovation. Utterly top-class communications can be delivered anywhere in the United States—pretty much anywhere in the world—for far less than $10,000 per customer per year.
Equally importantly, people who live in remote areas have no just claim that others should pay for their communications, just as people in areas with expensive housing have no just claim that rural folk should pay their rent.
Section 254 was a bad policy at the outset, and these data manifest that. Expensive government “universal service” programs should be eliminated so that unhampered competition in the private telecommunications market can deliver cost-effective telecom services everywhere they are supposed to be. That would satisfy both the hearts and the brains among us, and it would do so justly.
No-Fly With Me
The ACLU is representing several plaintiffs in a recently filed lawsuit challenging the U.S. government’s ”No Fly” list. The video in this “Blog of Rights” post tells the story of two of the plaintiffs. “I wanna go home!” laughs U.S. Marine veteran Ayman Latif. “I wanna see my mom. I want her to see my babies.”
No-fly listing is a constitutional aberration in which the executive branch unilaterally imposes a disability on persons it selects using unpublished criteria. It often denies these individuals any recourse by obscuring the reasons why they aren’t permitted to fly. Bills in the House and Senate would extend the use of the “no-fly” list to use in gun control.
There is no way to clear up the “no-fly” status of innocent travelers once and for all. The DHS’ Traveler Redress Inquiry Program may be good for unraveling mistaken name matching, but evidently it hasn’t cured the problem for these travelers.
No-fly listing is also a weak security measure. It’s CYA—”See? We did something!”—but it creates a class of people too dangerous to let fly but not so dangerous that they are sought for arrest.
There is some merit to watch- and no-fly-listing in the international context, where the U.S. is often unable to pursue threatening individuals. But generally, as I wrote in my book, Identity Crisis, “this procedure is like posting a most-wanted list at a post office and then waiting for criminals to come to the post office. It is a singularly lazy way to ‘pursue’ terrorists.”
Another security demerit: No-fly listing gives away the store. It tells any terrorist on a list that he or she is a suspect.
Since 9/11, airports and air travel have been something of a constitution-free zone. Exigency in the first year after that stunning attack may have justified some of the practices begun then, but we are secure and confident enough today to adhere to the Constitution. This lawsuit may vindicate due process values and the important liberty interest in freedom of movement.
The Recess Appointment of Donald Berwick
Late last week, President Obama made a recess appointment of Dr. Donald Berwick to head the Center for Medicare and Medicaid Services (formerly the Health Care Financing Administration). This has provided a good chunk of the week and weekend’s polititainment.
I know little about Berwick or his merits as an administrator of the government health care system, but in an April Cato@Liberty post I reviewed an article of his on “patient-centered health care.” If you’re interested, take a look at my comment, “A Little Less Poetry, a Little More Economics.”
A Lame Duck, a National/Voter ID, and the Pun That Makes it All Worthwhile
In a Wall Street Journal opinion piece this morning, John Fund speculates about a post-election, lame-duck strategy in which Democrats move a variety of controversial proposals before giving up power to November’s presumed victors. Among these proposals is “a federally mandated universal voter registration system to override state laws.”
The answer to that idea is No.
Part of the reason is because this proposal hasn’t seen any discussion or debate. Its benefits, costs, and consequences have had no public vetting.
Likely, a national voter ID system would also be a national ID system. Its utility in addressing whatever voter fraud there is would be matched or outstripped by its utility for controlling our access to health care, travel, guns, financial services, and every other thing that the federal government might like to regulate more thoroughly. That’s also part of why the answer is No.
I’m not too worried. Fund is interested in voter and election fraud, so he may be overweighting the likelihood of legislation to address it. And, as I said this morning in a broader WashingtonWatch.com blog post worth reading only for the pun, “Chances are that Fund is using the lame-duck speculation to goose (yuk yuk) his generally conservative readership, and that the Democratic leadership in the House and Senate aren’t thinking that far ahead yet.”
Consumer Watchdog Gets Creepy
When I know I’m going to write something more technical and detailed, I generally switch over to writing on the TechLiberationFront blog, which has a lovable propeller-head audience (and authors).
If you don’t mind wading through semi-technical talk of radio waves and encryption, you might enjoy the TLF post, “Consumer Watchdog Gets Creepy With Congress Trying to Make its ‘WiSpying’ Case.”
In its misleading and over-the-top effort to highlight corporate wrongdoing, Consumer Watchdog—a California corporation that reported over $3 million in 2008 revenue—arguably did more to invade privacy than the object of its attack.
‘Perfect Citizen’: Congress’ Perfect Failure
Reliable national security reporter Siobhan Gorman at the Wall Street Journal has broken a story about an Internet surveillance program called “Perfect Citizen” to be managed by the National Security Agency.
Reading about it is frustrating, and for me blame quickly settles on Congress. Our legislature is utterly supine before the national security bureaucracy, which exaggerates cybersecurity threats and consistently uses the secrecy trump card to defy oversight.
If there is to be a federal government role in securing the Internet from cyberattacks, there is no good reason why its main components should not be publicly known and openly debated. Small parts, like threat signatures and such—the unique characteristics of new attacks—might be appropriately kept secret, but no favor is done to any potential attackers by revealing that there is a system for detecting their activities.
A cybersecurity effort that is not tested by public oversight will be weaker than ones that are scrutinized by private-sector experts, academics, security vendors, and watchdog groups.
Benign intentions do not control future results, and governmental surveillance of the Internet for “cybersecurity” purposes may warp over time to surveillance for ideological and political purposes.
These abstract criticisms of “Project Citizen” are all that publicly available information allows. Far better would come from me and others more qualified if Congress were to do its job.
Congress owes it to us, the United States’ true citizens, to have public hearings on “Perfect Citizen.” Congress should reject broad assertions of secrecy so that the whole body politic can participate in securing our country from all threats.
Congressional and public oversight—searching oversight that tests assumptions and asks hard questions—would strengthen any government cybersecurity effort we find warranted. It would also ameliorate the threat of such programs to our civil liberties, democratic processes, and privacy.
Busting the Myth that Web Sites ‘Sell Your Data’
On TLF, Berin Szoka comes up just shy of ranting, but it’s a good rant against the myth that Web sites like Facebook sell or give your data to advertisers.
In targeted online advertising, the business model is generally to sell advertisers access to people based on their demographics. It is not to sell individuals’ personal and contact info. Doing the latter would undercut the advertising business model and the profitability of the web sites carrying the advertising.
I did some myth-busting of my own last year when the Wall Street Journal published erroneous information about a health-interest site called RealAge.com, which does not give or sell visitors’ data to drug companies.
Understanding how technologies and business models work is job one for crafting good public policies, but as I noted yesterday…
Nor Does Tech Get D.C. . . .
Politico has a pretty thorough article on D.C.’s thorough ignorance of things tech.
Take a 2008 hearing before the Senate Commerce Committee about privacy and online behavior-based advertising. The discussion seemed to fall apart when Sens. Tom Carper (D-Del.), Bill Nelson (D-Fla.) and others seemed not to understand the term “cookies.”
Cookies. That’s the (utterly rudimentary) technology that was an issue a decade ago. Washington, D.C. naturally overreacted, but luckily only harmed itself. The White House recently revamped the cookie policy for federal government web sites.
It’s worth noting Tech’s thorough misapprehension of Washington, D.C. as well. Judging by how they act, most tech executives have all the insight they could pick up from Schoolhouse Rock. It seems cool and helpful to come to Washington and give money, so they do, encouraging the bears to rip open their cars looking for peanut butter.
Obama Administration Moves to Implement Sunlight Before Signing
I have written here once or twice before—well, 26 times, but who‘s counting?—about “Sunlight Before Signing“—President Obama’s campaign promise to post bills he receives from Congress online for five days before signing them.
It was his first broken campaign promise, but a presidential term lasts four years, and a pledge like this is redeemable. So I have been delighted to see moves over the past few weeks to implement President Obama’s simple, but important transparency promise.
First, Whitehouse.gov began posting all legislation that comes to the president’s desk from Congress. An early decision to exclude “insignificant” legislation such as bills to rename post offices needlessly drove down the White House’s Sunlight Before Signing average.
Why would the public want to know about such things? Perhaps because the numerous post office renamings passed this year stand in contrast to the budget resolutions not passed this year. Foremost, all bills should be included in Sunlight Before Signing because that was the president’s promise.
More importantly, though, the White House’s web site recently added a section covering something fairly central to the president’s role: legislation! In Whitehouse.gov’s “Briefing Room,” there is now a legislation section, in which you can find lists of pending legislation (the stuff getting its five days of public review), signed legislation, and vetoed legislation.
(The signed legislation section is a bit of a jumble. It’s in no apparent order, it does not include public law numbers, it has different “signed” dates for some bills than the Thomas system has, and it even lists a few bills that have not been signed into law.)
Crucially, each of these pages has RSS feeds that make it easy for the public to stay informed about what bills have reached the president’s desk to get their five-day review. Voters and bloggers can easily get a quick sense of what Congress and the president are doing. Think of the social studies teacher who might use the bills Congress sends to the president in any given week for a class assignment.
Each time a bill reaches the president, it will pop up in RSS feeds nationwide. A habit of civic awareness can take root thanks to these RSS feeds, and the administration deserves credit for implementing them, even if it has done so tardily.
Thanks to these changes, the Obama administration’s Sunlight Before Signing average is on the rise. When we last reviewed things, just under 10% of bills had received the Sunlight Before Signing treatment, even though many were held for five days at the White House as a matter of course.
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