Over on the WashingtonWatch.com blog, I’ve laid out in the simplest terms I could what’s going on in terms of procedure with health care overhaul legislation. The post, called “What is Deeming, Anyway?“, comes in at a mere 900 words… If you’re a real public policy junkie, you might like it.

But what about the transparency oriented processes that President Obama and leaders like Speaker Pelosi promised the public? Recall that the Speaker promised to post the health care bill online for 72 hours before a vote back in September.

There was debate about whether she stuck to her promise then. And it was probably a one-time promise. It’s almost certain that she will not do so now. If she lines up the votes to pass the bill, the vote will happen. Right. Then.

What about President Obama’s promise to put health care negotiations on C-SPAN? The daylong roundtable debate on health care was an engaging illustration of what happens when you do transparent legislating. Voters got a clearer picture of where each side stands—and perhaps saw that there actually is some competence on both sides of the aisle. Some competence.

The health care negotiations going on right now are the ones that matter. This is when the most important details are being hammered out. This is when the bargaining that draws the public’s ire is happening. But I’m not seeing it on C-SPAN.

President Obama’s promise may have been naive, but that doesn’t excuse breaking it. The inside negotiations going on this week represent an ongoing violation of the president’s C-SPAN promise.

And there’s good reason to anticipate that the president will violate his Sunlight Before Signing promise as well. This was his promise to post bills online for five days after he receives them from Congress before signing them into law.

The reason why I’m so confident of a prospective violation—aside from the promise being flouted more often than not—is that the White House has posted the Senate-passed health care overhaul bill on the “Pending Legislation” page of Whitehouse.gov. H.R. 3590 as passed by the Senate is right there in among the bills Congress has passed, which are getting their five-day public review.

If the White House plans to argue that the health care overhaul legislation got the five-day public review President Obama promised, that will not fly at all.

The substance of the Sunlight Before Signing promise is to post bills for five days after Congress’ final vote. (I’ve recommended starting the clock at “presentment,” the formal constitutional step when the president receives a bill from Congress.)

Something other than that, such as posting the Senate bill before it passes the House—while failing to post the “fixer” bill for five days—would fundamentally violate the president’s transparency promise.

What an irony if all this were to happen this week, which, after all, is Sunshine Week!

I wrote some posts a few months ago (1, 2, 3) about the difficulty of discovering and preventing essentially random events like the Fort Hood shooting. I was pleased by the compliment security guru Bruce Schneier paid them in his recent post, “Small Planes and Lone Terrorist Nutcases.” (Such happy subject matter we get to write about!)

Now comes Radley Balko with a great column illustrating what you get when authorities try to “get ahead” of this problem. “Pre-Crime Policing” tells the story of a gun buyer who had been tagged with the adjective “disgruntled.” A SWAT team appeared on his property, police tricked him into surrendering for a mental evaluation, they illegally entered his home, and they seized his guns.

Says the victim of these invasions, “South Oregon is big gun country. If something like this can happen here, where just about everyone owns a gun, it can happen anywhere.”

Especially if we ask law enforcement to prevent random violence.

It is “Sunshine Week,” a time for attending to government transparency issues. And the president issued a statement today commemorating the occassion. Norm Eisen, the president’s special counsel for ethics and government reform, put a more detailed “Happy Sunshine Week” post on the Whitehouse.gov blog today as well.

The administration has done some good things, and there is no doubt that it means to do well. My pet transparency issue is one on which the news is not so good, however: the “Sunlight Before Signing” promise to post bills received from Congress for five days before they are made law.

When I last reported, the president was seven for 142 on fulfilling this promise. Of 142 bills subject to Sunlight Before Signing, only seven have been posted for five days. Since then another law has passed—H.R. 1299/P.L. 111-145, which was presented to the president on March 2nd, posted on Whitehouse.gov on March 4th, and signed into law the same day.

No emergency excuses the “United States Capitol Police Administrative Technical Corrections Act of 2009” from the sunlight treatment. Had it been posted, Americans may have had the opportunity to ask why a bill of that name establishes a “Corporation for Travel Promotion” to encourage international travel to the United States.

(Answer: S. 1023 was rolled into it, obscuring what Congress was doing in a common but insidious way. Cost of S. 1023 per U.S. family: about $24.)

The White House’s fulfillment of the Sunlight Before Signing promise now stands at seven for 143, or .049.

In his post, Norm Eisen said, “We are proud of our successes, but we of course recognize that much remains to be done, and we intend to redouble our efforts to make government as transparent, collaborative and participatory as possible.” And in his statement, the president said, “We are proud of these accomplishments, but our work is not done. We will continue to work toward an unmatched level of transparency, participation  and accountability across the entire Administration.”

The successes touted by Eisen and the president are real. We’re looking forward to more!

Yesterday my government transparency site WashingtonWatch.com rolled out a transparency campaign (along with many collaborators) called “Just Give Us the Earmark Data!”

Visitors to Earmarkdata.org are encouraged there to sign a petition asking Congress to publish data about earmarks in formats that are useful for public oversight. Developers can also participate in perfecting the data schema that will capture the “earmarks ecosystem” in the best possible way.

After a surprisingly successful effort at “crowdsourcing” earmark data last summer, the push for earmark transparency gained steam in January, when President Obama spoke about it in his State of the Union speech. A White House “fact sheet” issued the same day called for a “bipartisan, state-of-the-art disclosure database that allows Americans to examine the details of every proposed earmark.”

(We were going to ask for good earmark data anyway, but this gave the idea currency in a lot of quarters.)

The focus on earmarks and transparency got the political calculators whirring on Capitol Hill. “Is earmarking worth doing considering the political heat it is going to draw?”

One set of actors came up with their answer last week. House Democrats announced that they would restrict their earmarking only to non-profits. They want for-profit businesses seeking taxpayer money to go through conventional channels like competitive bidding.

The next day, House Republicans came back over the top of Democrats’ political bet. They announced that they would forgo earmarking entirely.

That’s House Democrats and House Republicans. Don’t assume that earmarking is going to go away. A good-government bidding war is on, though—spurred by the political challenge of transparency.

A couple of observations, least important first:

• If it wasn’t obvious before, this illustrates that politicians are very capable political risk balancers. Indeed, surfing political waves is arguably the primary task of elected officials, most especially at the national level, and without this skill, they are goners. (That’s why looking for a wellspring of principle in an elected official usually gets you swamped in disappointment.)

  I’ve had a number of friendly cynics suggest that politicians wouldn’t mind earmark transparency—bringing home the bacon brings in the votes! This appears in general not to be true. There may still be earmarking from a hard core group who do perceive overall political benefits from it, but they’ll have to buck their parties, who do not.

  (Alas, I can’t say “I told you so!” because I tended to just grin and say “Maybe you’re right!” For future reference, I agree with the tendency, but doubt the direct outcome described in the adage attributed to Benjamin Franklin, “When the people find that they can vote themselves money, that will herald the end of the republic.” Thankfully, it’s more complicated than that.)

• Notable: Elected officials’ political tuning is not just reactive. The anticipation of earmark transparency is what started this bidding war.This is especially worth noting with respect to President Obama’s “Sunlight Before Signing” promise, which I most recently reported on here. Skeptics have said that President Obama’s promise to post bills he receives from Congress online for five days before making them law wouldn’t make any difference because a bill that Congress has sent down Pennsylvania Avenue is already final. But a parochial amendment hanging out there for five days threatens to draw political discredit on its author and supporters—and their party. Sunlight Before Signing was a meaningful promise.

  (SBS has two advantages over the creditable “Read the Bill” proposal to hold bills 72 hours before a vote in Congress: 1) SBS takes advantage of interbranch rivalry, and 2) it was a campaign promise of the president!)

• Broadly, this episode illustrates how transparency can bring welcome change. It’s correct to observe that earmarks represent only a tiny part of overall spending. But applying parallel transparency efforts to other parts of the legislative and regulatory processes are likely to elicit similar good behavior from government officials. There are manifold directions to go with government transparency. Each in its way stands to create political dynamics more congenial to good government and—more importantly—to liberty.

In a highly symbolic gesture, the Federal Communications Commission published the executive summary of its “National Broadband Plan” in one of the most opaque formats going: It’s a PDF scan of a printed document.

This means you can’t cut and paste the bullet point that says:

“Increase civic engagement by making government more open and transparent, creating a robust public media ecosystem and modernizing the democratic process.”

Can an agency that publishes documents in inaccessible formats be relied on to deliver transparency? Did you know that this is Sunshine Week?! Let’s segue from symbolism to substance . . . 

That bullet and the many that accompany it explode the FCC’s proper authority and propose an industrial policy fit for . . . well, the industrial age—not that industrial policies were any good then.

The executive summary is 56 bullets broken into four sections, and six “goals” carefully crafted to avoid measurement with nebulous concepts like “affordable.” (We all want it, but affordability is subjective. Nothing is universally “affordable” while it bears a price tag.)

The one goal that is measurable is telling in its own way:

“Goal No. 6: To ensure that America leads in the clean energy economy, every American should be able to use broadband to track and manage their real-time energy consumption.”

(Why should it take broadband to monitor your energy consumption? Does the FCC plan to send out scanned PDFs of photos of your electric meter?)

Whether we should have a network-managed energy system or not, note how the Federal Communications Commission’s “broadband” plan would make it a player in the energy business. It would also be a player in health care. And education. And “economic opportunity.”

As to the latter, maybe the FCC has a leg to stand on. Expanding the current “universal service” tax-and-subsidy scheme would provide economic opportunity of a sort to the better lobbied firms in the telecommunications industry.

As I wrote before, in an even more summary way, “The Federal Communications Commission should be shuttered.” That’s still the gist of what I have to say about the “National Broadband Plan.”

If you haven’t been paying attention to the Comcast-NBC Universal merger, here’s a reason to: A good fight has broken out!

It starts with Mark Cooper, Director of Research at the Consumer Federation of America, who testified against the merger to the House Commerce Committee’s Subcommittee on Communications, Technology, and the Internet on behalf of CFA, Free Press, and Consumers Union.

The merger has so many anti-competitive, anti-consumer, and anti-social effects that it cannot be fixed,” says Cooper.

Cato Adjunct Scholar Richard Epstein lays into Cooper’s testimony with aplomb: ”Dr. Cooper has achieved a rare feat. The evidence that he presents against this proposed merger suffices to explain emphatically why it ought to be approved.”

And in a second commentary, Epstein ladles out another helping of humble pie to Cooper, concluding:

The cumbersome Soviet-style review process that Mr. Cooper advocates does no good for the consumers who he purports to represent. It only shows how far out of touch he is with the basics of antitrust theory as they relate to the particulars of the telecommunication market.

Maybe Cooper will have a rejoinder. But until then, I’ll just note that the best fights are the ones that your guy wins.

Compromise is catnip in Washington, D.C. That’s my best guess at why Senator Lindsey Graham (R-SC) would endorse New York Senator Chuck Schumer’s (D) widely reviled plan to create a mandatory biometric national ID system.

Schumer’s national ID plans have no more definition today than when he wrote about them in his 2007 campaign manifesto Postitively American. Among the thin gruel of that book is a two-page lump displaying more ignorance than understanding of how identity systems work and fail. Schumer doesn’t know the difference between an identifier—a characteristic used to distinguish or group people—and an identification card or system, which does the entire task of proving a person’s previously fixed identity. (My thin gruel on the topic is the book Identity Crisis: How Identification is Overused and Misunderstood.)

“All the national employment ID card will do is make forgery harder,” says Schumer.

No, that’s not all it would do: It would also subject every employment decision to the federal government’s approval. It would make surveillance of law-abiding citizens easier. It would allow the government to control access to health care. It would facilitate gun control. It would cost $100 billion dollars or more. It would draw bribery and corruption into the Social Security Administration. It would promote the development of sophisticated biometric identity fraud. How long should I go on?

Senator Graham’s take is equally simple: “We’ve all got Social Security cards,” he said to the Wall Street Journal. “They’re just easily tampered with. Make them tamper-proof. That’s all I’m saying.”

No, Senator, that’s not all you’re saying. You’re saying that native-born American citizens should be herded into Social Security Administration offices by the millions so they can have their biometrics collected in federal government databases. You’re saying that you’d like a system where working, traveling, going to the doctor, and using a credit card all depend on whether you can show your national ID. You’re saying that bigger government is the solution, not smaller government.

The point for these senators, of course, is not the substance. It’s the thrill they experience as nominal ideological opponents finding that they can agree on something, securing a potential breakthrough on the difficult immigration issue.

They’re only ”nominal” ideological opponents, though. Chuck Schumer has always been a big government guy—and long a supporter of having a national ID, despite the lessons of history. Lindsey Graham is not really his ideological opponent. Typical of politicians with years in Washington D.C., Graham is steadily migrating toward the big-government ideology that unites federal politicians and bureaucrats against the people.

I’ve seen plenty of stories and gotten a fair number of calls from reporters about the national broadband plan. They generally want to get some insight from down in the weeds of the communications world. What do you think of this part? What do you think of that?

But I’m keeping my eye on the ball: This is another industrial-policy boondoggle. It’s a government spending program, created by the so-called “Recovery Act,” that will distort the communications marketplace, and it comes at the cost to taxpayers of having their resources taken from them and handed out to the firms that are best equipped to lobby for government succor.

I don’t care which community gets 1-gigabit connections. The money to pay for it should have been left with the American people to spend as they choose—on 1-gigabit connections if they choose. The debt overhang produced by all this spending makes us worse off, not better off, and the shiny bauble of hi-def, two-way video doesn’t change that.

The Federal Communications Commission should be shuttered. That’s the gist of what I have to say about the “National Broadband Plan.”

So reports the Wall Street Journal:

Lawmakers working to craft a new comprehensive immigration bill have settled on a way to prevent employers from hiring illegal immigrants: a national biometric identification card all American workers would eventually be required to obtain.

It’s the natural evolution of the policy called “internal enforcement” of immigration law, as I wrote in my paper, “Franz Kafka’s Solution to Illegal Immigration.”

Once in place, watch for this national ID to regulate access to financial services, housing, medical care and prescriptions—and, of course, serve as an internal passport.

A new BBC poll is garnering plenty of press attention for its striking finding that 78% of global respondents believe that Internet access “should be a fundamental right of all people.” Fascinating!  Except… what exactly does that mean?

The obvious problem here is that, at least as it’s worded in English, the question is ambiguous between two equally plausible readings.  Especially when juxtaposed with another question about whether the Internet should be regulated by government, it could be understood as asking whether there’s a fundamental negative right to be free to use the Internet — to read and communicate free of government censorship or other onerous barriers.  That’s probably how we’d interpret a parallel question about whether people had a “fundamental right” to “access” information via newspapers or books.

Many folks, though, seem to be reading it as a measure of support for a fundamental positive right to be provided with (broadband?) Internet access. And that just seems a bit silly, frankly. There’s a decent case to be made that it’s desirable for governments that can afford it to make some kind of public Internet access available to citizens who can’t.  You can even imagine that, a few years down the line, some states in the developed world might have moved so heavily toward interacting with the public online that it would become more or less necessary for full political equality.  But a basic human right? Something that governments are “violating fundamental rights” if they don’t do? It’s not just that I don’t believe this; I have trouble imagining that much of anyone literally thinks so.  A few of my friends at Free Press, maybe, but 4/5 of the world’s population?  Color me dubious.

I’ll confess being startled at the response to a much less ambiguous question: A global majority agreed that “the Internet should never be regulated by any level of government anywhere.” While I find this pattern of responses congenial enough, I can’t take it much more seriously.  After all, what falls under the category of “regulation of the Internet”?  Censorship, of course, which I expect is what most people immediately thought of.  But in reality, of course, there are a whole panoply of laws and rules that at least arguably “regulate” the Internet in some sense, some of which even I would approve of. I have many, many issues with the Digital Millennium Copyright Act, for instance, but there’s nothing wrong with the idea that there should be a basic protocol that provides both a safe harbor for service providers hosting user content and a mechanism for complaining about copyright-infringing or libelous or otherwise tortious material.  Probably there are other “regulations” I’d approve too, but I’d have to sit and think about it for an hour to even enumerate all the different kinds of rules that might be considered to “regulate the Internet” in one way or another.

Because it’s at least not susceptible to such dramatically divergent readings, this response might be more useful as a kind of big-picture attitude check. But the reality is that almost none of the respondents can really mean it because even someone steeped in tech policy would have to sit and think about the question for a half hour to really get a grip on what it entails. Or might entail. If the BBC were engaged in some kind of serious social science, they probably would have worked up better questions.  But of course, that’s not the business they’re in.  They’re in the business of asking the sort of question that will let them run exciting headlines that get re-tweeted and drive page views. And 100% of respondents in my poll of myself agree they’ve succeeded.

When I last reported on Sunlight Before Signing—President Obama’s promise to post bills online for five days before signing them—the administration had begun to rack up the wins. Of the 13 bills he signed in December, five had received the Sunlight Before Signing treatment.

Alas, since January, only one of the 18 bills subject to the promise has gotten the online exposure the president promised. (That was H.R. 1377/P.L. 111-137, a bill dealing with reimbursement of veterans for services they receive at non-V.A. facilities.)

It’s an unfortunate slow-down from the heady days when the president’s SBS batting average rocketed from a dismal .009 to .048. The president’s current Sunlight Before Signing average is only slightly improved at .049 (7 for 142).

The average could have risen quite nicely. Eight bills were post office renamings that sat at the White House for more than five days anyway. It was just a matter of posting them on Whitehouse.gov. True: these aren’t important bills, but the Sunlight Before Signing promise was simply to post all bills. The American people could benefit from seeing the “unimportant” work of Congress and the president along with the important.

There was one interesting development in SBS since I last reported: we saw a bill go through that was not subject to the Sunlight Before Signing promise.

S. 2949/P.L. 111-127 provided additional funds to the U.S. Repatriation Program in light of the disaster in Haiti. That money was for getting people out of harm’s way, and waiting five days to release the funds would have kept people in physical peril. It was ”emergency” legislation, which President Obama sensibly excluded from the five-day waiting period of Sunlight Before Signing.

(By contrast, H.R. 4462/P.L. 111-126—which accelerated tax deductability of contributions for Haiti—was about an emergency, but not emergency legislation itself: changing the tax treatment of charitable contributions would only indirectly affect people’s physical safety, health, etc.)

More than a year into the current administration, we’ve seen the contours of the Sunlight Before Signing promise. We’ve seen the White House make a good run at fulfilling the promise. But in the early months of this year, we haven’t seen much more actual execution.

When the president does follow through on Sunlight Before Signing, it will be a simple but important service to the millions of Americans who might get a better idea of how the government works and what it does. It will also fulfill a campaign promise.

Below is the latest Sunlight Before Signing chart:

* Page now gone, but it was either directly observed, evidence of it appears in a Whitehouse.gov search, or the White House says it existed.
† Bill was posted for five days after final passage, though not formal presentment. Counted as “Yes.”
‡ Link to final version of bill on impossible-to-find page.
E! Emergency legislation not subject to five-day posting

This morning’s Senate Judiciary Committee hearing on global Internet freedom opened with Sen. Dick Durbin (D-IL) announcing that he would “introduce legislation that would require Internet companies to take reasonable steps to protect human rights or face civil or criminal liability.”  Durbin’s staff tell me they’re in the early phases of hammering out a draft, so exactly what that amounts to isn’t clear yet, but my first-pass gut reaction is that this has the potential to do as much harm as good.

The argument for establishing some such set of rules is pretty straightforward: You don’t want the perverse scenario where corporations worry they’re shirking their fiduciary responsibility to their shareholders if they fail to compete in the market to provide sophisticated technologies of control and repression to the world’s most authoritarian regimes. You don’t want despots exploiting the innovation that springs from the very freedom they deny their own people as a means to cement their own control. It’s possible to frame this as a collective action problem, with tech companies happy to “do the right thing” provided all their competitors do—but with each ultimately deciding to play ball for fear that if they don’t, someone else will.  If that accurately captures the dynamic—and, crucially, if the field of competitors is heavily concentrated in the United States—the binding power of legislation could increase the pressure on foreign governments to abandon repressive Internet policies. In theory, anyway.

But which steps are “reasonable,” and who decides? Google’s recent announcement that it would—eventually—cease its complicity in China’s regime of Internet censorship was greeted with general approbation, to the point where it’s easy to forget that, even if you’re exclusively concerned with what’s in the interest of the Chinese people, it’s a hard call whether and when a principled refusal to deal is really better than distasteful engagement. As Google’s Nicole Wong put it at the hearing, the company’s decision to launch Google.cn in 2006 was premised on “the belief that the benefits of increased access to information for people in China and a more open Internet outweighed our discomfort in agreeing to censor some results.” They’ve now apparently decided that the balance of considerations cuts the other way, but it needs to be stressed that it’s still a question of balance, and there will be real costs to withdrawal.

The tools Google provides can be useful to scholars and activists despite the constraints imposed by the Chinese government—and even when Google does censor search results, it endeavors to make that censorship at least somewhat transparent, announcing to users that some content has been removed. Few expect China to blink in the face of Google’s ultimatum, but it’s also worth noting that whatever leverage companies like Google do have over foreign regimes depends in significant part on their having been there in the first place to develop a user base.  One can imagine the government facing a political backlash if China’s second most popular search engine disappears; it’s hard to imagine much outcry over the decision not to enter the market in the first place. Then again, maybe the upshot of all this will just be that the 30 percent of Chinese Internet users who’d gotten censored results on Google will shrug and get their censored results from Baidu instead.

None of this is to say that Google’s new course is wrong, just that the questions are complex enough that I’d be chary of imposing criminal penalties on a company that made a different call about the balance of interests. Our own government, after all, routinely decides that some Greater Good is served by cooperation with frankly loathsome regimes, and the track record to date does not inspire vastly more confidence in their judgment than in Google’s.

Speakers at the hearing also broached the possibility of government support for various encryption and circumvention technologies that would be useful to foreign dissidents. I’m all for loosening export controls, but as Durbin himself noted, there’s a tricky line to walk here: Without a clear separation of Tech and State, repressive regimes will eagerly seek to reframe their arguments with tech firms over the degree of freedom their people should enjoy as an argument with the United States, which will be portrayed as seeking to “force” our particular conception of democracy on sovereign nations. It will be a spurious argument, but that doesn’t mean it won’t work.

I’ll wait to see the actual bill before rendering any firm judgment, but it seems like it would be awfully easy to pass legislation that lets us pat ourselves on the back for our noble ideals without actually doing a whole lot to advance online freedom in practice.

Today, the U.S. Postal Service warned that it could lose $238 billion over the next ten years if it doesn’t receive greater managerial flexibility from Congress.

The European Union and other countries around the world have long been moving toward competition and privatization for mail delivery services. Yet the United States remains way behind the global trend.  The rise of the internet and other advances in telecommunications have fostered an irreversible decline in the USPS’s mail volume. At the same time, it’s being weighed down by a predominantly unionized workforce whose compensation and benefits constitute 80 percent of USPS costs.

As President Obama himself said last August, “UPS and FedEx are doing just fine…It’s the Post Office that’s always having problems.”

In the short term, Congress should remove the USPS’s monopoly on the mail, and in the long term lay the foundation for its breakup and privatization. That is unlikely to happen, of course, because the politics of any issue will trump a sound business decision any day of the week.

One of the USPS’s requests is to eliminate Saturday service to cut back on costs. In a world where the government’s mail monopoly no longer existed, private mail delivery firms could compete to deliver mail on Saturday, or even Sunday. But no such competition exists because the government will not allow it. The federal government has wasted untold taxpayer dollars on anti-trust witch hunts against private companies like Microsoft, but apparently what’s good for the goose isn’t good for the gander.

Here’s a great conversation at Slate.com about Shane Harris’ new book The Watchers.

We’ll be having the author here at Cato on March 10th for a similar discussion of his book and the growth of the surveillance state.

Register here.

Today, President Obama began to fulfill the promise that health care legislation would be hashed out on C-SPAN. His discussion with congressional leaders was broadcast on that cable channel and streamed live on the Internet. The nearly six-and-a-half hour-long meeting began to touch on many of the issues at stake in the health care area. 

I’ll leave observations about the merits to our experts, who live-blogged the morning session. I found a few things interesting from a transparency perspective:

The format was far more conducive to productive discussion than procedures for “debate” in Congress. What generally happens in the House and Senate is display of members’ and senators’ well-settled views.  So today interested Americans could get a real sense of the issues and how their representatives think about them.

There seemed to be a division between representatives who knew the technical subject matter and those who—for lack of a better phrase—knew the emotional subject matter. Surprisingly astute commentaries on fiscal realities were met with appeals to the story of one constituent or another—or of members’ own families’ health predicaments.

Though there was much talking past one another, these are all good things to see. It will inform the public, and a better informed public will make better decisions about health care legislation, about individual representatives, and about the proper role of government. 

I know how I feel about these things. (I’m soft-pedaling my views here as hard as I can…) My opinions didn’t change, though I adopted new nuances to my thinking.

It’s doubtful that many people’s opinions will change. But I’m confident that a more open process will lead to better results in many senses: specific policy results; electoral activity; and people’s overall sense of the role of government.

Today’s meeting only scratched the surface, of course. Sessions like this in the days and weeks to come will do more to improve the transparency of the lawmaking process, in this issue and hopefully others. Today’s transparency precedent is something that the president and federal lawmakers should not retreat from.

It looks as though we’ll be getting a straight one-year reauthorization of the expiring provisions of the Patriot Act, without even the minimal added safeguards for privacy and civil liberties that had been proposed in the Senate’s watered down bill.  This is disappointing, but was also eminently predictable: Between health care and the economy, it was clear Congress wasn’t going to make time for any real debate on substantive reform of surveillance law. Still, the fact that the reauthorization is only for one year suggests that the reformers plan to give it another go—though, in all probability, we won’t see any action on this until after the midterm elections.

The silver lining here is that this creates a bit of breathing room, and means legislators may now have a chance to take account of the absolutely damning Inspector General’s report that found that the FBI repeatedly and systematically broke the law by exceeding its authorization to gather information about people’s telecommunications activities. It also means the debate need not be contaminated by the panic over the Fort Hood shootings or the failed Christmas bombing—neither of which have anything whatever to do with the specific provisions at issue here, but both of which would have doubtless been invoked ad nauseam anyway.

Everybody’s wrong. That’s sort of the message I was putting out when I wrote my 2008 American University Law Review article entitled “Reforming Fourth Amendment Privacy Doctrine.”

A lot of people have poured a lot of effort into the “reasonable expectation of privacy” formulation Justice Harlan wrote about in his concurrence to the 1967 decision in U.S. v. Katz. But the Fourth Amendment isn’t about people’s expectations or the reasonableness of their expectations. It’s about whether, as a factual matter, they have concealed information from others—and whether the government is being reasonable in trying to discover that information.

The upshot of the “reasonable expectation of privacy” formulation is that the government can argue—straight-faced—that Americans don’t have a Fourth Amendment interest in their locations throughout the day and night because data revealing it is produced by their mobile phones’ interactions with telecommunications providers, and the telecom companies have that data.

I sat down with podcaster extraordinaire Caleb Brown the other day to talk about all this. He titled our conversation provocatively: “Should the Government Own Your GPS Location?“

Google executives who had nothing to do with the creation, uploading, review, or display of a video have been criminally convicted in Italy for its brief appearance on a Google site.

The video, which showed Italian children taunting an autistic schoolmate, was promptly taken down after Italian authorities notified Google. The company assisted the authorities in locating the girl who uploaded it, according to Google’s account. (Her subsequent conviction makes it safe to assume that Google was cooperating with a criminal investigation as required by Italian law.) But four Google employees were charged with criminal defamation and failure to comply with the Italian privacy code.

That can’t happen here—unless we let it happen here.

This is a good time to review and extoll the Communications Decency Act—not because it attempted to censor Internet speech (that part was overturned), but because it protected providers of interactive services (like Web sites) from having to become gatekeepers over Internet content.  The law shielded them from liability for what users of their services do.

I believe common law would have eventually reached that result had the statute not been passed, but without protections like that in the CDA’s section 230, the wide-open, rollicking, soapbox-for-all Internet we know would not exist—it would be just a plussed-up television because everything uploaded would have to get a professional’s review for potential liability.

That’s what Italy stands to end up with if it allows liability against providers of interactive services. It’s what we stand to end up with if the many threats to CDA section 230 get traction.

The state of Nevada is one of few that is tripping over itself to comply with the REAL ID Act, the U.S. national ID law.

It’s worth taking a look at the sample license displayed in this news report, especially the gold star used on the license to indicate that it is federally approved.

The reasons for “improving” drivers’ licenses this way are complex. The nominal reason for REAL ID was to secure the country against terrorism. The presence of a gold star signals that this the card bears a correct identity and that watch-list checking has ensured the person is not a threat.

Don’t be too thrilled, though. The weakness of watch-listing was demonstrated again by the Christmas-day attempt on a Northwest airlines flight. The underpants bomber wasn’t listed, so checking his name against a watch-list didn’t do anything.

The real reason for REAL ID, though, was anti-immigrant fervor. If the driver licensing system distinguished between citizens and non-citizens, the theory goes, possession of a driver’s license can be used to regulate access not just to driving, but to working, financial services, health care, and anything else the government wants. Illegal presence in the country could be made unpleasant enough that illegal immigrants would leave.

Alas, human behavior isn’t that simple. If ‘driven’ to it—(I had to…)—people will get behind the wheel without licenses—and without the training that comes with licensing. Then they’ll crash. When the governor of New York briefly de-linked driver licensing and immigration status in 2007, he cited public safety and the likelihood that insurance rates would fall, to the benefit of New Yorkers. (When the state of New Mexico de-linked driver licensing and immigration status, uninsured vehicle rates in the state dropped from 33 percent to 17 percent.) But the governor suffered withering criticism from anti-immigrant groups and quickly reversed course.

Like linking immigration status and driving, linking immigration status and work through an ID system imposes costs on the law-abiding citizen. Complications and counterattacks raise costs on workers and employers while reducing the already small benefits of such programs. I articulated those in my paper on employment eligibility verification.

REAL ID transfers well-being and wealth from individuals to the state.

But let’s return to this gold star…

The article says that the Nevada ID is becoming one of the hardest in the country to forge. But it’s hard to be sure. The gold star may undermine the anti-forgery goal.

Forgery is the making or altering of a document with the intent to defraud or deceive. The question is not whether the whole document can be made—I’m sure the new Nevada license is bristling with security doodads—it’s whether a document can be made to deceive.

Watch for the people who check licenses to fall into the habit of checking the gold star and taking that as evidence that the document is “good.” By a small but relevant margin, ID checkers will forget to compare the picture on the license to the face of the person presenting it. (Gold star? Go.) Putting a gold star on the license may make forgery easier. It’s not about the technical feasibility of creating the card; it’s how to fool people.

But this gold star. It will be taken as a shorthand for “citizen.” There are examples from the past in which governments used symbols to assign status to populations. It’s easy to go overboard with such comparisons, but the Nevada license, with this gold star, takes a dramatic step toward carving the population into groups—groups that can be divided. Maybe soon two stars will be for military veterans, or people licensed to own firearms. Three stars could be for elected officials.

With this gold star system, a Nevada license-holder is a little less of a free, independent person with rights and privileges based on individual merit. A Nevadan becomes an undifferentiated status-holding subject. We’re a long way from the day when the “gold star” people are assigned to better rail cars, but the idea is that it should never happen. We should reject entirely the tools that could allow the government to do that.

Last week, I noted the strange story of a lawsuit filed by parents who allege that their son was spied on by school officials who used security software capable of remotely activating the webcams in laptops distributed to students. A bit more information on that case has since come out. The school district has issued a statement which doesn’t get into the details of the case, but avers that the remote camera capability has only ever been used in an effort to locate laptops believed to have been lost or stolen. (That apparently includes a temporary “loaner computer that, against regulations, might be taken off campus.”)  They do, however, acknowledge that they erred in failing to notify parents about this capability.  The lawyer for the student plaintiff is now telling reporters that school officials called his client in to the vice principal’s office when they mistook his Mike and Ike candies for illegal drugs.

Perhaps most intriguingly, a security blogger has done some probing into the technical capabilities of the surveillance software used by the school district. The blogger also rounds up comments from self-identified students of the high school, many of whom claim that they noticed the webcam light on their school-issued laptops flickering on and off—behavior they were told was a “glitch”—which may provide some reason to question the school’s assertion that this capability was only activated in a handful of cases to locate lost laptops. The FBI, meanwhile, has reportedly opened an investigation to see whether any federal wiretap laws may have been violated.

It’s this last item I want to call attention to. The complaint against the school district states a number of causes of action.  The most obvious one—which sounds to me like a slam dunk—is a Fourth Amendment claim. But there are also a handful of claims under federal wiretapping statutes, specifically the Electronic Communications Privacy Act and the Stored Communications Act. These are more dubious, and rest on the premise that the webcam image was an “electronic communication” that school officials “intercepted” (as those terms are used in the statute), or alternatively that  the activation of the security software involved “unauthorized” access by the school to its own laptop. The trouble is that courts considering similar claims in the past have held that federal electronic surveillance law does not cover silent video surveillance—or rather, the criminal wiretap statutes don’t.

That leads to a strange asymmetry in a couple of different ways. First, intelligence surveillance covered by the Foreign Intelligence Surveillance Act does include silent video monitoring. Second, it seems to provide less protection for a type of monitoring that is arguably still more intrusive. If officials had turned on the laptop’s microphone, that would fall under ECPA’s prohibition on intercepts of “oral communications.” And if the student had been engaged in a video chat using software like Skype, that would clearly constitute an “electronic communication,” even if the audio were not intercepted. But at least in the cases I’m familiar with, the courts have declined to apply that label to surreptitiously recorded silent video—which one might think would be the most invasive of all, given that the target is completely unaware of being observed by anybody.

One final note: The coverage I’m seeing is talking about this as though it involves one school doing something highly unusual. It’s not remotely clear to me that this is the case. We know that at least one other school district employs similar monitoring software, and a growing number of districts are experimenting with issuing laptops to students. I’d like to see reporters start calling around and find out just how many schools are supplying kids with potential telescreens.

This Reason.tv video illustrates the weak case for network neutrality regulation of Internet service providers.

In the AT&T case, which the video touches on, an AT&T web site blocked some (barely) controversial statements by Eddie Vedder—the Pearl Jam lead singer who stopped mattering a really long time ago. This was an error, and it was contrary to AT&T policy, according to this August 2007 story. Yet the example is one of a few used to argue for net neutrality regulations.

Do we really want the government treading any of this ground?

Most people would probably agree that web site operators should be free to publish or not publish whatever they want. Regulations barring web sites from editing out controversial political statements, or requiring them to broadcast them, would be facially unconstitutional. Strangely, proponents of net neutrality regulation tout this kind of regulation as a virtue at the Internet’s transport layer.

Tim Lee points to “The Toyota Recall and the Case for Open, Auditable Source Code.”

Knowing how the technology in our cars work is not just a safety issue, but a privacy issue—and maybe even a tax issue.

Researching government invasions of privacy all day, I come across my fair share of incredibly creepy stories, but this one may just take the cake.  A lawsuit alleges that the Lower Merion School District in suburban Pennsylvania used laptops issued to each student to spy on the kids at home by remotely and surreptitiously activating the webcam built into the bezel of each one. The horrified parents of one student apparently learned about this capability when their son was called in to the assistant principal’s office and accused of “inappropriate behavior while at home.” The evidence? A still photograph taken by the laptop camera in the student’s home.

I’ll admit, at first I was somewhat skeptical—if only because this kind of spying is in such flagrant violation of so many statutes that I thought surely one of the dozens of people involved in setting it up would have piped up and said: “You know, we could all go to jail for this.” But then one of the commenters over at Boing Boing reminded me that I’d seen something like this before, in a clip from Frontline documentary about the use of technology in one Bronx school.  Scroll ahead to 4:37 and you’ll see a school administrator explain how he can monitor what the kids are up to on their laptops in class. When he sees students using the built-in Photo Booth software to check their hair instead of paying attention, he remotely triggers it to snap a picture, then laughs as the kids realize they’re under observation and scurry back to approved activities.

I’ll admit, when I first saw that documentary—it aired this past summer—that scene didn’t especially jump out at me. The kids were, after all, in class, where we expect them to be under the teacher’s watchful eye most of the time anyway. The now obvious question, of course, is: What prevents someone from activating precisely the same monitoring software when the kids take the laptops home, provided they’re still connected to the Internet?  Still more chilling: What use is being made of these capabilities by administrators who know better than to disclose their extracurricular surveillance to the students?  Are we confident that none of these schools employ anyone who might succumb to the temptation to check in on teenagers getting out of the shower in the morning? How would we ever know?

I dwell on this because it’s a powerful illustration of a more general point that can’t be made often enough about surveillance: Architecture is everything. The monitoring software on these laptops was installed with an arguably legitimate educational purpose, but once the architecture of surveillance is in place, abuse becomes practically inevitable.  Imagine that, instead of being allowed to install a bug in someone’s home after obtaining a warrant, the government placed bugs in all homes—promising to activate them only pursuant to a judicial order.  Even if we assume the promise were always kept and the system were unhackable—both wildly implausible suppositions—the amount of surveillance would surely spike, because the ease of resorting to it would be much greater even if the formal legal prerequisites remained the same. And, of course, the existence of the mics would have a psychological effect of making surveillance seem like a default.

You can see this effect in law enforcement demands for data retention laws, which would require Internet Service Providers to keep at least customer transactional logs for a period of years. In face-to-face interactions, of course, our default assumption is that no record at all exists of the great majority of our conversations. Law enforcement accepts this as a fact of nature. But with digital communication, the default is that just about every activity creates a record of some sort, and so police come to see it as outrageous that a potentially useful piece of evidence might be deleted.

Unfortunately, we tend to discuss surveillance in myopically narrow terms.  Should the government be able to listen in on the phone conversations of known terrorists? To pose the question is to answer it. What kind of technological architecture is required to reliably sweep up all the communications an intelligence agency might want—for perfectly legitimate reasons—and what kind of institutional incentives and inertia does that architecture create? A far more complicated question—and one likely to seem too abstract to bother about for legislators focused on the threat of the week.

In typical Washington, D.C. fashion, the capitol city is convincing itself that it has a role in “saving” journalism from the technological and market forces that are now reshaping it.

Adam Thierer summarizes his remarks this morning—aimed at bursting D.C.’s bubble—in this TechLiberationFront post.

My 2004 Cato Policy Analysis, “Understanding Privacy — and the Real Threats to It,” talks about how government programs intended to do good have unintended privacy costs. “The helping hand of government routinely strips away privacy before it goes to work,” I wrote.

There could be no better illustration of that than the recent CNN report on government collection and warehousing of American babies’ DNA. “Scientists have said the collection of DNA samples is a ‘gold mine’ for doing research,” notes a sidebar to the story.

I have no doubt that it is—and that government-mandated harvesting of this highly valuable personal data from children is an unjust enrichment of the beneficiaries.

If you have a mobile phone, that’s the upshot of an argument being put forward by the government in a case being argued before the Third Circuit Court of Appeals tomorrow. The case is called In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic Communication Service To Disclose Records to the Government.

Declan McCullagh reports:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.

I wrote about these cases, and the courts’ misunderstanding of privacy since 1967’s Katz decision, in an American University Law Review article titled “Reforming Fourth Amendment Privacy Doctrine“:

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.