Topic: Telecom, Internet & Information Policy

The Chilling Effect of the Government’s Subpar Subpoenas

By Ilya Shapiro

Here we go again. History repeats itself with classified-ad website Backpage.com’s announcement yesterday that it’s shuttering its “adult” section after years of unrelenting pressure from public officials at all levels of government. 

Most recently, the Senate’s Permanent Subcommittee on Investigations (PSI) hauled several Backpage.com officials before it for a public shaming without bothering to wait for a ruling on the legality of its “investigation.” In California, just before Christmas then-attorney general (now U.S. Senator) Kamala Harris refiled criminal charges against Backpage’s CEO and its former owners in the face of a December 9 ruling throwing her initial charges out.

These tactics represent a marked escalation since September 2010, when Craigslist caved in to pressure from a group of 17 state attorneys general and shut down its “adult advertisements” section. As a federal court had already ruled at that time—and numerous courts have held since—the government cannot assume that ads that mention sex are advertising illegal transactions, much less coercive sex-trafficking. Laws censoring such websites have been roundly and repeatedly held to violate the First Amendment.

But the law is one thing, and less-direct pressure tactics are quite another. It’s harder to hold government accountable when it tries to hide what it’s up to with public letters, demands, and investigations, even if meritless.

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Topics:
Law and Civil Liberties, Regulatory Studies, Telecom, Internet & Information Policy

Power Arrangements in Identity Systems

By Jim Harper

Since the launch of the Sovrin Foundation, Phil Windley has been blogging a lot (no, really—a lot and more, more, more, more, and more) about how self-sovereign identity works and can be used. His most interesting and accessible post for a liberty-minded identity-layperson might be “On Sovereignty,” in which he briefly lays out what it means to have a “self-sovereign” identity.

Sovereignty over your identity doesn’t mean having complete control over information about yourself, but it puts you in a peer relationship with others, including the larger organizations we deal with, such as governments. “The beauty of sovereignty,” Phil emphasizes, is the “balance of power that leads to negotiations about the nature of the relationships between various entities in the system.” I want to expand on this notion that there are power arrangements in identity systems.

In a centralized identity system, the identity provider (such as your Department of Motor Vehicles) determines whether you can assert information and what you can assert. Centralized systems also often share information about you, or facilitate such sharing, whether you want them to or not. Implementation of the REAL ID Act would essentially move these powers from state governments to the U.S. Department of Homeland Security.

A self-sovereign identity system, on the other hand, gives you power to assert information about yourself, which others may accept or reject. It also better positions you to decline to share information about yourself. Those powers are important.

“Power” is an elusive concept. We’re more familiar with talking about power in terms of political and legal arrangements, such as how the Constitution gives certain powers to the U.S. federal government or denies all U.S. governments other powers. But absent these rules, “pre-political” power is simply the ability to do something or act in a particular way, or the capacity to direct or influence the behavior of others or the course of events. Power comes down to what resources you can bring to bear in going after what you want.

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Topics:
Telecom, Internet & Information Policy

Ask Not What Technology Leaders Can Do for You, Mr. Trump, But What the DATA Act Can Do for Them

By Jim Harper

According to a New York Times report on President-Elect Donald Trump’s meeting with technology leaders last week, Mr. Trump asked the executives “to see if they could not apply data analysis technology to detect and help get rid of government waste.”

They can not. The existence of data that would permit them to do so will be dictated by the Trump administration’s approach to implementing the DATA Act.

The DATA Act requires the federal government to transform all spending information into open data. If the federal government follows through on publishing spending data in open formats—which is very much an open question—technology companies old and new will be able to work the kind of magic they have in other fields.

There is not an algorithm, of course, to separate wasteful spending from useful. These are value judgments made by humans. But while the data underlying these judgments is held by insiders, their preferences for lush spending will be satisfied. Average Americans seeing multiplicitous government programs and bloated government contracts perceive that as waste.

Nothing specific that I’m aware of suggests any Trump administration policy yet with respect to the DATA Act, but the selection of Rep. Mick Mulvaney (R-SC) to head the Office of Management and Budget may bode well. OMB has been a drag on government spending transparency, and Mulvaney is the type to do away with business as usual. The DATA Act would do for the whole government what he sought from National Credit Union Administration in recent legislation: line-by-line budget transparency.

When the time comes to formulate policy on spending transparency, ask not what technology leaders can do for you, Mr. Trump, but what the DATA Act can do for them.

Topics:
Telecom, Internet & Information Policy

The IRS Believes All Bitcoin Users are Tax Cheats

By Jim Harper

The Internal Revenue Service has filed a “John Doe” summons seeking to require U.S. Bitcoin exchange Coinbase to turn over records about every transaction of every user from 2013 to 2015. That demand is shocking in sweep, and it includes: “complete user profile, history of changes to user profile from account inception, complete user preferences, complete user security settings and history (including confirmed devices and account activity), complete user payment methods, and any other information related to the funding sources for the account/wallet/vault, regardless of date.” And every single transaction:

All records of account/wallet/vault activity including transaction logs or other records identifying the date, amount, and type of transaction (purchase/sale/exchange), the post transaction balance, the names or other identifiers of counterparties to the transaction; requests or instructions to send or receive bitcoin; and, where counterparties transact through their own Coinbase accounts/wallets/vaults, all available information identifying the users of such accounts and their contact information.

The demand is not limited to owners of large amounts of Bitcoin or to those who have transacted in large amounts. Everything about everyone.

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Topics:
Telecom, Internet & Information Policy

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

By Jim Harper

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

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

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

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

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

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Topics:
Telecom, Internet & Information Policy

Trump’s Real Immigration Policy

By Alex Nowrasteh

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

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

Optimistic Take: Why Trump Could Not be THAT Bad

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

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Topics:
Telecom, Internet & Information Policy

European Criticism of American Internet Platforms

By Simon Lester

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

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

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

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

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

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

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

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

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

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

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Topics:
Telecom, Internet & Information Policy

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