Archive for the ‘Administrative Law’ Category

When Joining Forces Spells Trouble: Proposed Merger of E-Voting Companies

posted by Danielle Citron

Last month, Diebold announced that ES&S would purchase its e-voting business for $5 million plus some outstanding revenue.  Diebold’s shareholders no doubt rejoiced: while the company’s ATM machines have a strong reputation, its e-voting machines brought the company only grief.  Diebold even changed its e-voting unit’s name to Premier to protect the company’s otherwise strong brand name.

This merger, however, is bad news for voters.  It would entrust 3/4s of e-voting machines into the hands of a company whose machines rival Diebold’s for inaccuracy and insecurity.  Consider this recent example.  In 2008, ES&S machines allocated votes cast in one race to a different race that was not even on the ballot.  As a result, the wrong candidate won a state House nomination race.  Given the consolidation of the e-voting market, we can have little hope that future machines will be more secure.  Ed Felten explains that  “[t]he odds of one major e-voting company breaking from the pack and embracing up-to-date security engineering are now even slimmer than before.”  Because breaking into the e-voting business is expensive due to high accreditation costs, ES&S may face limp competition in bids for upcoming contracts.  Voting administrators thus may be unable to obtain important terms crucial to transparency and accountability, such as the placement of source code in escrow.

Although voters should lament this development, all isn’t lost.  As Joe Hall notes,  California Secretary of State Debra Bowen has provided wise advice to the Election Assistance Commission with regard to the integrity of e-voting systems.  Bowen urges that the EAC require greater disclosure of vulnerabilities, the adoption of procedures that jurisdictions can follow to collect and report data about incidents they experience with their voting systems, and the systematic collection of data from election officials about how voting systems perform during general elections.  This recalls the important work of Heather Gerken in her book The Democracy Index: Why Our Election System is Failing and How to Fix It.  The EAC would be wise to adopt these proposals, especially in light of the upcoming merger.

  October 24, 2009 at 2:17 pm   Posted in: Administrative Law, Architecture, Current Events, Technology, Uncategorized   Print This Post   One Comment

Government’s Data Glut

posted by Danielle Citron

Government is increasingly automating its services.  From Medicaid coverage to building permits, machines help determine individuals’ ability to take advantage of important governmental benefits and services.  Agencies collect huge amounts of data in the process.  Mayor Michael Bloomberg recently remarked that the real payoff of such automation is “actually us[ing] the data.”  With that mission in mind, agencies emphasize the importance of linking government databases to take full advantage of tools that mine data for insights.  In the effort to make its city “smarter,” Dubuque, Iowa is working on a project that will use sensors, software, and networked computing to give its government and individuals the digital tools to measure, monitor, and alter the way that they use water, electricity, and transportation.

To be sure, computer algorithms can analyze linked databases to identify fraud and waste, as well as simply help government make better decisions and policy.  But one hopes that government is not following the “adopt first-think later” model (as with e-voting machine purchases) when it comes to privacy, security, and auditability of these linked systems.  To what extent are vendors accounting for these concerns?  As my work on Technological Due Process and Open Code Governance explores, government’s automated systems overwhelmingly fail to incorporate audit trails that would reveal where information comes from and who has been using it.  We see this problem at the state level, where agencies often collect information free of intrusive regulation such as the Privacy Act of 1974 and perhaps even if they did would contend that the merging of data to allow intra-agency access would constitute a “routine use.”  No matter, managing this data glut in an accountable and privacy-protective manner is crucial as we move forward.

On a related note, Ken Bamberger’s Technologies of Compliance: Risk and Regulation in a Digital Age does a superb job exploring another side to the automated systems story.  His piece addresses firms’ automation of their compliance with laws mandating risk management.  Click here to read the abstract.  A must read.

  October 14, 2009 at 1:12 pm   Posted in: Administrative Law, Privacy, Technology, Uncategorized   Print This Post   No Comments

Exciting Addition for Public Choice Profs

posted by Danielle Citron

My colleague, Max Stearns, and Todd Zywicki of the George Mason University School of Law have just published their new course book, Public Choice Concepts and Applications in Law (West Publishing Company).  This course book, the only one of its type, introduces law students to the concepts of public choice and the implications of those concepts for a host of substantive legal doctrines and for features of institutional design of various lawmaking bodies.  Covered concepts include an general economic reasoning (including an overview of price theory), interest group theory, social choice theory, and elementary game theory. The institutional applications unit includes chapters that consider the implications of covered concepts for legislatures, the judiciary, the executive branch (and bureaucracies), and constitutions as governing documents.  The book is designed for courses or seminars in public choice or for use as a supplement courses as legislation, administrative law, or jurisprudence.  Students will love this: the book is in paperback.  Max tells me that he and Todd will be submitting the Teachers’ Manual to West this week and that West will quickly make that available to potential adopters.  In addition, they are working toward posting supporting materials for part III on line.  That part which will include various chapters on discrete topics of law to be used in connection with the bound volume and that will be updated over time.  Max tells me that he is happy to respond to any questions or comments that you have by email.   Having sat in on Max’s public choice seminar and enjoyed, and learned from, his vast body of work in the area, I have no doubt that Public Choice Concepts and Applications in Law is a great contribution to the classroom and beyond.

  October 12, 2009 at 12:39 pm   Posted in: Administrative Law, Economic Analysis of Law, Jurisprudence   Print This Post   No Comments

Czar Wars

posted by Jon Siegel

Two interesting articles on the Washington Post Op-Ed page recently about the increasing number of policy ”czars” in the White House.  These officials report to the President, are not subject to Senate confirmation, and play a nebulous role in policy formulation and implementation.  Senator Kay Bailey Hutchison suggests that czars therefore damage the constitutionally required separation of powers.  Lawyers David Rivkin and Lee Casey respond that the President can get advice from anyone he wants, and that, if anything, it would be unconstitutional for Congress to stop the President from getting advice from policy czars.

Both articles go too far, but, basically, Rivkin and Casey are right and Hutchison is wrong.  As Rivkin and Casey point out, the President can get advice from whomever he wants.  He could get all his advice from me if that’s what he wanted to do.  He doesn’t need Congress’s permission to seek anyone’s advice.

Hutchison expresses concern that the czars may be “impos[ing] the administration’s agenda on the heads of federal agencies and offices who have been vetted and confirmed by the Senate.”  But if we’re talking about officials who serve at the President’s pleasure, what’s wrong with that?  The President would be entitled to tell these officers personally what they need to do to keep him pleased (the President does that all the time with Executive Orders, for example).  But the President doesn’t have time to keep on top of every one of the innumerable officials who serve at his pleasure, so he appoints some trusted intermediaries to serve that function, and so what? 

Of course, these intermediaries could not, any more than the President himself, order officials to do anything illegal, but the President, like any boss, can tell his suboridnates that what would please him best would be for them to do what some intermediate official tells them, insofar as it is lawful to do so.  Imagine, for example, that the President said, “I want the heads of DOJ, DHS, the military, State, and Treasury to report directly to me.  Everyone else who serves at my pleasure, do what Joe Biden tells you to do.”  Could there be anything wrong with that?  I think not.

And with regard to officers who exercise power but who don’t serve at the President’s pleasure, the President’s ability to influence them is more limited, but again, whatever the President can do with these officials personally, he can tell them that someone else is his voice in their affairs.  So the President can’t exactly order Ben Bernanke to do something, but whatever influence the President has with Bernanke, he could say, “Ben, whatever my economic czar tells you, that’s what I want.”

So I think Hutchison is wrong to suggest that there’s a constitutional problem.  Of course, whether having so many czars makes sense as a public policy matter is a different question. 

And I do think Rivkin and Casey go too far in one respect — they suggest that there would be a constitutional problem in Congress’s insisting on vetting White House czars.  I’m not so sure about that.  If the President wants to seek my advice, Congress can’t stop him.  But if someone wants to be on the federal payroll, then Congress is footing the bill.  If Congress  wants to eliminate the budget for czars, I’m hard pressed to see how it could be prevented from doing so.  The President has a lot of power, but the power of the purse is pretty potent, too.

  September 21, 2009 at 7:09 am   Posted in: Administrative Law, Constitutional Law   Print This Post   2 Comments

PCAOB’s Constitutionality

posted by Lawrence Cunningham

The Sarbanes-Oxley Act of 2002 created the Public Company Accounting Oversight Board to set standards and supervise the public auditing profession.   A pending Supreme Court case will consider whether the result is constitutional under the Appointments Clause and separation of powers principles.   The DC Circuit thought it was good enough, seeing the Board as a subsidiary of the Securities and Exchange Commission. 

Thanks to Donna Nagy, a diverse group of law professors (including me)  join an amicus brief challenging that stance.    We emphasize that we believe that the idea of the Board is appealing but the design Congress chose is flawed.   A copy of the brief is available here.

  August 4, 2009 at 10:11 am   Posted in: Accounting, Administrative Law, Constitutional Law, Uncategorized   Print This Post   One Comment

Duke Law Journal Volume 58 May 2009

posted by Duke Law Journal

Volume 58 May 2009 Number 8

Articles

Pitfalls of Empirical Studies that Attempt to Understand the Factors Affecting Appellate Decisionmaking

Hon. Harry T. Edwards & Michael A. Livermore

A More Perfect System: The 2002 Reforms of the Board of Immigration Appeals

John D. Ashcroft & Kris W. Kobach

The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform

Catherine L. Fisk & Deborah C. Malamud

Political Control of Federal Prosecutions: Looking Back and Looking Forward

Daniel Richman

Federalism Accountability: “Agency-Forcing” Measures

Catherine M. Sharkey

Depoliticizing Administrative Law

Cass R. Sunstein & Thomas J. Miles

The Parliament of the Experts

Adrian Vermeule

Administration of War

John Yoo

Comment

Comment on Professor Yoo, Administration of War

Richard H. Kohn

Retrieve All Pieces

  July 5, 2009 at 10:26 am   Posted in: Administrative Law, Law Rev (Duke)   Print This Post   One Comment

Improving the Grant System with Prizes

posted by Michael Abramowicz

In a front-page article in yesterday’s New York Times, Gina Kolata argues that the system of awarding grants for cancer research unduly favors research projects that make incremental advances over projects that have a smaller probability of achieving more fundamental breakthroughs by challenging established dogmas. This particular problem is part of a broader problem: Decisions on grant funding are not made using cost-benefit analysis or any systematic methodology for assessing which projects are the most promising. And that in turn is part of a broader problem still: Granting agencies don’t have much incentive for identifying the procedures that are likely to lead to the socially best allocation of research dollars.

At a bare minimum, grant-granting institutions ought to generate probability distributions of different levels of benefit for alternative proposed projects. I suspect that resistance to such an approach stems from recognition that any subjective estimates of both probabilities and benefits are likely to be somewhat arbitrary. How can even an expert scientist know that there is either a 1% or a 5% chance that an experiment testing an unorthodox claim will be successful? And that difficulty pales in comparison to the challenge of assessing the benefits of experiments. We might be able to estimate the benefits of a cure for cancer, by estimating the effects of a cure on quality-adjusted life years, but it is difficult to assess how far toward that goal any particular successful experiment will bring us. The task is made still more complicated by the fact that some experiments will be valuable not because they confirm either the experimenters’ or skeptics’ views, but because they produce some entirely serendipitous discoveries.

My view is that grant decisions will be better if we force scientists making assessments to give their best subjective estimates, ultimately producing a probability distribution of different possible benefit levels, even if such numbers are inherently subjective. It seems unlikely that intuitive decisionmaking will produce better results than more rigorous approaches. Scientists may worry that quantification would discourage investments in basic research relative to more applied research. The reverse seems likely to be true. The more foundational the research, the greater the potential benefits to which it may contribute, and this factor seems likely to outweigh the fact that any single highly theoretical experiment may provide only a small bit of progress. Whether I’m right or wrong about this, allocation decisions ideally should be based on rigorous analysis of this question, or at least on moderately developed back-of-the-envelope calculations, rather than on pure intuition.

One objection is that any system that the government or indeed any bureaucracy develops for making more mathematically rigorous assessment of grants may be flawed by ignoring important criteria that scientists may take into account implicitly. But it need not be government that is charged with making these estimates. An alternative to the grant system would flip government’s role to ex post evaluation of benefits and costs. Twenty-five years from now, it should be much easier for scientists to assess the relative benefit of experiments conducted today. Instead of grants, the government could place grant money into a prize fund, let it accumulate interest, and distribute the money later. This approach would give private parties, akin to venture capitalists, incentives to anticipate the benefits of research. At the least, such parties should be less risk averse than the grant agencies that Kolata describes.

This may seem too radical a change from our existing system of scientific funding. But it is possible to integrate a modest version of this system within the existing grant system. For example, we might set aside just 10% of current grant money for a prize fund. Private parties would be required to auction their rights to any prize to independent third parties, conditional on the grants being approved. The grant agency might then consider the results of the auctions, in addition to any information they ordinarily would consider. At the least, this could help provide the grantors cover for approving low-probability, high-benefit projects. Moreover, the practices of the third parties-What kind of models do they use? What kind of disclosure do they expect from grant applicants?-might help us identify how we could improve the government’s own procedures. Whether or not the auction participants do a better job than the government (and with relatively small stakes, they might not), the types of projects they select with their own money on the line could help inform the government about what its decisionmakers’ biases might be.

  June 29, 2009 at 12:33 pm   Posted in: Administrative Law   Print This Post   5 Comments

A Win For Lessig on Health Reform?

posted by Frank Pasquale

I admit to having been skeptical of Larry Lessig’s move from cyberlaw to anti-corruption work. It’s a veritable Augean stables of influence on Capitol Hill, and key Supreme Court decisions seem to foreclose real reform. However, Lessig has recently shown the potential of distributed Web 2.0 technology to get key leaders to rethink their position on donors’ pet issues:

[S]ome . . . think they’ve figured out a way to use the Web to pressure [Senator Ben] Nelson, whose big contributions from the health-insurance industry and banks has made him a target. . . [Larry Lessig's] organization, Change-Congress.org, is claiming its first “major victory.” In early June, Nelson backed off from his comment that a public option for health insurance was “a deal breaker” and let it be known that he would not join any filibuster against the president’s health-care bill. Lessig says this came after ChangeCongress announced it would spend $10,000 in online ads and send 3,000 direct-mail pieces to Democratic donors in Nebraska pointing out that Nelson received more than $2 million from special interests in health care who oppose the public option.

Several innovative groups are following similar strategies on the state level. At the national level, Little Sis, Sourcewatch, and Political Friendster have all tried to tell the corruption story in interesting ways. But people in Nelson’s office still say these issues bring in nothing like the attention raised by guns and abortion, and Jonathan Alter concludes that Lessig “needs at least 5,000 to 10,000 more [letter-writers] per congressional district before he can begin to make good on his boast of making a powerful senator quiver and quake.” The ultimate effect of Web 2.0 on real politics remains to be seen.

  June 18, 2009 at 11:53 am   Posted in: Administrative Law, Health Law, Politics   Print This Post   No Comments

The Privacy Implications of “Friending” the White House (Part II)

posted by Danielle Citron

Since I last wrote about President Obama’s Facebook friends, Government 2.0 has  steadily progressed.  Since early May, our Commander-in-Chief has added more than 150,000 new friends.  The FDA has initiated its Transparency Blog and will soon add a Twitter feed and Facebook page.  More state agriculture agencies reach the public through social networking sites.  Of course, the government social-networking phenomenon is not brand new:  since 2007, the Commerce Department’s National Oceanic and Atmospheric Administration has maintained a virtual island in Second Life  and the CDC has had a MySpace page.   Nonetheless, it is a particularly auspicious time to think about this trend’s privacy implications especially in light of the GSA’s recent agreement with video-sharing and social networking sites to permit agencies to use their services.

What are the public’s privacy expectations when using government social media?  It is surely too early to identify a clear sense of our expectations, at least in any well-studied way.  But the Obama Administration has provided some sense of what we should expect when we join a future Facebook group sponsored by OMB or engage in virtual conversations with agency officials in Second Life.  How so?  The current push for agencies to use Web 2.0 platforms stems from President Obama’s January 21, 2009 Open Government memorandum.  The memorandum urges executive departments and agencies to be more transparent, participatory, and collaborative.  Agencies “should harness new technologies to put information about their operations and decisions online and readily available to the public.”  They should “offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information.”  And they should use “innovative tools, methods, and systems to cooperate” and collaborate with the public and private sectors in making policy.  USA.gov’s Sheila Campbell has explained that agencies will appoint directors of new media to determine how they can use social networking tools to meet mission goals and comply with President Obama’s Open Government directive.  As White House CIO Vivek Kundra has noted, public comment on programs will hopefully be a “two-way interaction between government and its citizens.”  White House spokesperson Moira Mack clarified the point:  “we are focused on opening government to the people (and not the other way around), and like with any other online friends, the individual users can still choose to keep information private using their privacy settings.”

So what does all of this signal about our privacy when interacting with government agencies via Facebook, MySpace, Twitter, You Tube, etc.?  The Open Government directive tells us that government wants to shine light on its activities and get our opinions and expertise on policy matters.  It says nothing about government’s interest in our personal lives, i.e., what we write on our friends’ walls, the 25 things you don’t know about us, our network of friends, etc.  Our personal lives seem downright out of place in any discussion of the Open Government directive.  This seems to create a presumption of openness as to policy-related matters and a presumption of privacy as to individuals’ personal matters.

Read the rest of this post »

  June 18, 2009 at 10:41 am   Posted in: Administrative Law, Google & Search Engines, Privacy, Privacy (Consumer Privacy), Technology, Uncategorized   Print This Post   7 Comments

Special Masters, Not “Czars”

posted by Lawrence Cunningham

Mainstream media all used the colloquial “czar” to report yesterday’s Treasury Department appointment of a “special master” for executive compensation at companies getting exceptional financial assistance from the federal government. This is a longstanding but poor media word choice to describe an equally longstanding political expedient to manage public perceptions of intractable policy problems.

The coinage is costly because it implies powers special masters lack, which can lead to two contending but undesirable consequences. On one hand, it can lead the special master to wield power for which he lacks authority; on the other, it makes media unwitting partner in achieving the political goal of providing a public relations palliative to thorny problems accountable officials would rather duck. Read the rest of this post »

  June 11, 2009 at 10:52 am   Posted in: Administrative Law, Current Events   Print This Post   4 Comments

Routing Around Government Pay Scales

posted by Frank Pasquale

I know, you’re expecting a post on the new compensation czar. But before commenting on that, I want to think a bit about the way in which Sallie Mae–once a GSE, now “fully privatized”–may amount to a de facto end-run around the usual pay scales for government work.

Back in May, Gail Collins editorialized on “the epicenter of the college loan strangeness,” guaranteed student loans. For such loans, she says, the following holds:

We the taxpayers pay the banks to make loans to students.

We the taxpayers then guarantee the loans so the banks won’t lose money if the students don’t pay.

We the taxpayers then buy back the loans from the banks so they can make more loans to students, for which we will then pay them more rewards.

As she noted in another column, “The White House believes that if it cuts out the middlemen, and just gives the loans to the students directly, it can save $94 billion over 10 years.”

Predictably, the middlemen have furiously lobbied to preserve their prerogatives. Sallie Mae has “hired two prominent lobbyists, Tony Podesta, whose brother, John, led the Obama transition, and Jamie S. Gorelick, a former deputy attorney general in the Clinton administration.” The lobbyists are to press the case that private lenders create value via “marketing, customer relations, billing, default prevention and collection of delinquent loans.” Collins counters that “The real competition among the lenders is not to win over students so much as the school financial aid officers . . . [leading to] thinly disguised bribes and kickbacks.” The Wall Streeting of higher education encourages such shenanigans.

I only have a couple of comments on the situation.
Read the rest of this post »

  June 10, 2009 at 6:41 pm   Posted in: Administrative Law, Economic Analysis of Law, Law School   Print This Post   One Comment

Open Code Governance in Action: Data.Gov

posted by Danielle Citron

Government has a long history of hiding its problems.  It has done so through policy. For instance, the state secrets privilege owes its beginnings to a cover-up of agency mismanagement.  It has done so with technology.  Closed code systems prevent the public from identifying automated systems’ policy inaccuracies and security problems.  E-voting machines and public benefits systems exemplify the kind of black boxes that can wreak havoc on government decision-making.

The Administration has made clear its interest in shining the light on the Executive Branch’s policymaking, problems and all.  Last week, federal CIO Vivek Kundra launched Data.gov, the first-ever catalog of raw federal data for the public’s machines to read, analyze, and mash up.  The site now has 47 feeds.  Most concern what the Executive Branch knows about the weather and natural resources, including mineral resources and migratory birds.  For instance, one involves a database of Tornado, Large Hail, and Damaging Wind Reports, 1950-2006.  White House budget director Peter Orszag says that the goal is to have a “one-stop shop for free access to data generated across all federal agencies.”  He explained that the site will “open up the workings of government by making economic, health care, environmental, and other government information available on a single website, allowing the public to access raw data and transform it in innovative ways.”

Like all beta projects, this one has begun with baby steps.  Beyond weather and soil, one hopes that Data.gov will include data sets and statistics on the OMB’s budget, EAC-funded studies on voting machines, and FTC’s consumer research.  It also would be particularly intriguing to broaden its reach beyond the Executive Branch to include data from the Legislature and Judiciary.  But no matter, this project is exciting both for its future utility and its expressive value.  Companies and researchers can make great use of the data to find new ways to solve difficult problems.  The Administration is also sending a powerful message here.  As Saul Hansell from The New York Times explains, the Administration is putting its imprimatur on an effort to “unlock government information.”  This is Open Government indeed.

Wikimedia Commons Image

  May 27, 2009 at 10:30 am   Posted in: Administrative Law, Technology, Uncategorized   Print This Post   No Comments

E-Voting Machines on Trial

posted by Danielle Citron

On Monday, a New Jersey Superior Court wrapped up a fifteen-week trial in Gusciora v. Corzine.  There, plaintiffs challenged New Jersey’s use of e-voting machines on the grounds that the machines cannot be trusted to count the votes accurately given how easily they can be hacked.  The trial centered on security problems of the state’s 11,000  e-voting machines manufactured by Sequoia Voting Systems.  Plaintiffs argued that the machines are vulnerable to physical and digital attacks that could compromise elections.  Expert witnesses in the case included Professor Andrew Appel from Princeton University, Dr. Roger Johnston of Argonne National Laboratory, and Professor Wayne Wolf of Georgia Institute of Technology, who testified that vote-stealing software could be installed by attackers without specialized training or expensive equipment.  At trial, the experts demonstrated multiple hacks of the machines’ source code and user interface, attacks on the machines’ circuitry, and methods for bypassing New Jersey’s physical security measures.

A few tidbits from Professor Appel helps demonstrate the importance of the judge’s decision and the ramifications of the court’s future findings.  As Appel explained, “in 7 minutes you can replace the ROM and make the machine cheat in every future election, and there’s no practical way for the State to detect cheating machines (in part because there’s no voter-verified paper ballot).”  For Appel, the course of the inaccuracy is the machines’ vulnerability to hacking.  There is no practical means of testing for hacking, and the State of New Jersey does not attempt to test for hacking.  Appel also explained that when he examined the State’s machines in July 2008, they had no security seals preventing ROM replacement.  He demonstrated on video (which was played by the court at trial) that he could pick the lock, unscrew some screws, and replace the ROM with one that cheats, replaces the screws, and lock the door, all within seven minutes.  On cross-examination, the State defendants asked Appel to demonstrate this process in the courtroom, which he did carefully and slowly in 47 minutes.  As Appel testified, “someone with more practice (and without a judge and 7 lawyers watching) would do it much faster.”

So what might come of all of this?  The court could certainly order local precincts to refrain from using the machines until the security problems have been addressed.  It is also possible that such a ruling would influence other jurisdictions currently using the Sequoia machines to rethink their use.  Because our electoral federalism leaves ultimate administrative decisions concerning elections to states and local precincts (unless Congress says otherwise under its Elections Clause power), such a finding won’t guarantee any change beyond New Jersey (if even that comes about).  Nonetheless, it would provide strong signals about e-voting machines’ security in ways that would be more productive than (my) grumbling from the peanut gallery does.

Wikimedia Commons Image

  May 20, 2009 at 4:12 pm   Posted in: Administrative Law, Technology   Print This Post   One Comment

Mercketing

posted by Frank Pasquale

In an era of information overload, how can a drug marketer get its message across? One new method is creating its very own “journal”, as Merck and Elsevier did in Australia:

From 2002 through 2005, the Australian affiliate of Merck paid the Australian office of Elsevier, an academic publisher, to publish eight compilations of scientific articles under the title Australasian Journal of Bone and Joint Medicine, a spokesman for Elsevier said.

Elsevier issued a statement last week acknowledging that its Australian office had created paid-for compilations “that were made to look like medical journals and lacked the proper disclosures” of their drug company sponsors and calling such practices “unacceptable.” A company spokesman said Elsevier believed that one of the Merck issues was distributed to 20,000 doctors in Australia while other issues went to about 10,000 doctors.

Thus the current gallows humor in the halls of research: “Is medical science for sale?” “No, its current owners are perfectly happy with it.”*

This latest twist in the sorry saga of modern drug marketing has raised many eyebrows. This deal is problematic on many levels. But as big pharma and big publishing get more sophisticated, keeping track of these interactions will become more difficult. We need more academic work like Ellen Goodman’s on stealth marketing and the new Wagner/McGarity book Bent Science.

Rob Walker coined the term “murketing” to describe “murky marketing”–the increasingly blurred line between paid and unpaid product promotion. I don’t mind murketing when it’s just trying to get me to buy a candy bar or dvd. But in matters of life and death, it seems out of place. The Mercketing at the core of this case has led some commentators to propose a total sequestration of drug research and marketing. As Trudo Lemmens has argued, “an independent drug testing agency . . . would create a healthy separation between those with financial interests in research from those conducting the research.”

Hat Tip: Sergio Sismondo’s Academic Affairs Article, “Is Medical Science for Sale?”

  May 15, 2009 at 8:18 pm   Posted in: Administrative Law, Economic Analysis of Law, Health Law   Print This Post   10 Comments

Tips, Bribes, and Campaign Finance

posted by Frank Pasquale

One of the predictable side effects of the excessive financialization of the US economy is mushrooming corruption. Here’s the latest story:

[A new report says] the former head of the federal pension insurer [PBGC] . . . improperly contacted some of the firms potentially bidding on [government] contracts and later sought and received job-hunting help from an unnamed executive of Goldman Sachs after the company had been awarded a contract to manage up to $700 million.

At the heart of the inspector general’s inquiry is a controversial decision made in early 2008 to gradually shift billions of dollars from bonds, which make up the bulk of the agency’s assets, into stocks, real estate, and private equity investments.

I’ve also been following New York Attorney General Andrew Cuomo’s ever-expanding investigation into state pension funds. I am happy to see that Cuomo is starting to get at the heart of the problem by targeting campaign finance:

Under the terms of [a May 14] agreement, [the Carlyle Group] will adopt Cuomo’s Public Pension Fund Code of Conduct. The code of conduct bans investment firms from hiring, utilizing, or compensating placement agents, lobbyists, or other third-party intermediaries to communicate or interact with public pension funds to obtain investments. To avoid pay-to-play schemes, the Code prohibits investment firms (and their principals, agents, employees and family members) from doing business with a public pension fund for two years after the firm makes a campaign contribution to an elected or appointed official who can influence the fund’s investment decisions.

As the Center for Public Integrity has noted, there’s no clear definition of a bank “too big to fail”–the cash hogs at the bailout trough are “simply ‘too politically connected to fail.’” Andrew Cuomo is one of the few political officials to make that connection explicitly as he addresses the public corruption that’s become de rigeur in our age of “Bad Money.”

  May 15, 2009 at 6:31 am   Posted in: Administrative Law, Economic Analysis of Law   Print This Post   No Comments

The Privacy Implications of Wiki Government

posted by Danielle Citron

Beth Noveck has just published what looks to be a terrific book entitled Wiki Government.  (Thankfully, my Prime Amazon membership guarantees the book’s speedy delivery to my door).  Noveck is currently serving on the Obama Administration’s Technology, Innovation, and Reform Team where she will be working on ways to enhance public participation and transparency in government policymaking.  In a video produced by Government Technology, Noveck explains her overall strategy on the participatory democracy front: government needs to make better use of the public’s expertise using Web 2.0 technologies.  Rather than encouraging electronic town halls that might result in massive, unhelpful opinion dumps, agencies and the EOP should use blogs and wikis to recruit subject matter experts on specific issues.  The more focused the question, she explains, the better the public comments are likely to be.  She describes the current Peer to Patent program that recruits citizen input on patent applications as an example and it sounds like the White House blog is engaging in similar activity.

This all sounds very exciting.  We could of course imagine the mischief that interest groups could engage in at these sites, from sock puppetry to hired guns posing as neutral experts on various issues.  But no matter, Noveck’s work will produce important strides in participation, and I am really looking forward to seeing it unfold. 

My question is whether government is thinking about the privacy implications of all of this participation.  Will agency wikis and blogs require and retain personal information about participants?  One would imagine it would, and perhaps should, do so if it is going to weed out trickery and if it is going to create ties with citizen participants who government would like to recruit for help in the future.  Perhaps Noveck’s book will address these questions but I thought I would seek comments and insights from our readers in the meanwhile.

Wikimedia Commons Image

  May 14, 2009 at 2:46 pm   Posted in: Administrative Law, Cyberlaw, Privacy, Technology, Uncategorized   Print This Post   No Comments

Terrorist Watchlist, Troubling Flaws Revealed

posted by Danielle Citron

Last week, I wrote about how crude algorithms in the name-matching “No Fly” system produce an outsize number of false positives as a matter of deliberate policy.  We are willing to tolerate additional delays so that we can stop terrorists from flying.  Yesterday, the DOJ’s Office of the Inspector General issued a report that seriously calls into question the bargain that we have struck with regard to the “No Fly” system.  The report explains that the FBI (the agency amassing the list that is then matched to travelers’ names) has incorrectly kept 24,000 names on the terrorist watch list on the basis of outdated and irrelevant information, while “missing people with genuine ties to terrorism who should have been on the list.”  According to the report, these mistakes not only posed a risk to national security due to the failure to flag actual terrorist suspects, but also created unnecessary delays and detentions for innocent travelers.  A fact of great concern: the Inspector General sampled 216 FBI terrorism investigations and found that in 15% of them, a total of 35 subjects were not referred to the list even though they should have been.

During a talk that I gave last week for Princeton University’s Center on Information Technology Policy, Ed Felten (who served on TSA’s Secure Flight Study Group where he studied the No-Fly mechanism) explained that there are two aspects to the no-fly list, one that puts names on the list and the other that checks airline reservations against the list.  The two parts operate separately from each other.  The FBI heads up the first part, putting names on the list through a secret process that seemingly requires that people on the list be a sufficiently serious threat to aviation security.  The other part is the one that I wrote about last week: a data-matching system that checks travelers’ names against the list.  Because the matching algorithm requires only an approximate match (because flight reservations so often have misspelled names), we have many false positives so that we can sweep within the system the right match, i.e., the terrorist suspect, along with many innocent others.

So here is the rub: we are willing to live with so many false positives because we trust those amassing the list to ensure that it is accurate and complete.  In other words, it worth all of those false positives if indeed they serve the greater good.  Yes, we will endure the delay and perhaps inability to fly if indeed our names are akin to someone’s who is correctly suspected to be a terrorist.  But preventing innocent individuals from flying, or subjecting them to questioning, based on matches with other innocent people’s names while failing to do enough homework so that you let real terrorist subjects board airplanes with no hassle?  Really?  This report suggests reconsidering having a “No Fly” system in its current form at all.

Thanks to Wikimedia Commons for the picture

  May 7, 2009 at 7:03 am   Posted in: Administrative Law, Current Events, Government Secrecy, Privacy (National Security), Technology, Uncategorized   Print This Post   No Comments

Fixing the “No Fly” List and Redress Mess

posted by Danielle Citron

As travelers no doubt know, the “No Fly” computer matching system routinely labels innocent individuals as terrorists. Over half of the tends of thousands of matches sent to the Terrorist Screening Center between 2003 and 2006 were misidentifications. The “No Fly” system has targeted two U.S. Senators, airplane crew members, and an eight-year old boy. These false positives stem from faulty information stored in “No Fly” databases and from the crude matching algorithms that cannot distinguish between the same or similar names. This system is over-inclusive as a matter of policy: as Ed Felten explains, we tolerate high rates of false positives to lower the rates of false negatives and the concomitant disaster accompanying the error in letting terrorists board airplanes.

At present, approximately 3,800 people a month file redress claims with the DHS Traveler and Redress Inquiry Program (DHS TRIP), which by all accounts has not fixed the problem. Wired blogger Ryan Singel explains that some “lucky ones are given a ‘cleared letter’ and a redress number to help prove they are the terrorist the government is looking for.” Nonetheless, the House Subcommittee on Transportation Security and Infrastructure notes that individuals who have successfully gone through the redress process “continue to experience problems.”

Recent developments suggest that the redress process, and the troubled “No Fly” list, is in for some tinkering. Wired reports that the TSA has begun taking over the job of comparing airline passengers against its terrorist watchlist, relieving airlines of that duty. Under the Secure Flight program, passengers will be required to provide their date of birth and gender when booking flights. The TSA hopes that Secure Flight will reduce the number of false positives and help those who have applied to DHS TRIP for redress. But how TSA will actually do so is somewhat of a mystery as its spokeswoman Lauren Gaches has said that “TSA does not maintain the list and cannot add or remove any names.” In addition, the House recently passed the FAST Redress Act, which would set up an office within DHS to address redress claims in a “timely and fair” manner and require DHS to create a “Comprehensive Cleared List” of people who were wrongly included on the “No Fly” list. The bill, currently under consideration in the Senate, may move the ball in the right direction, providing some kind of procedural due process (though short of technological due process) and some means to clear yourself (perhaps by an official “I am not a terrorist card”).

  April 27, 2009 at 7:53 am   Posted in: Administrative Law, Privacy (National Security)   Print This Post   2 Comments

New York’s Workman’s Comp Swamp as Economic Indicator

posted by Frank Pasquale

While there is a lot of irrational animus against government nowadays, some agencies seem tailor-made to provoke public ridicule and scorn. Kudos to N.R. Kleinfeld and Steven Greenhouse for investigating a tragically cronified bureaucracy at the New York State Workers’ Compensation Board:

Workers’ compensation systems across the country are troubled, and reform efforts are under way here. But New York, a pioneer of the concept and home to the nation’s second-largest system, has some signature claims to dysfunction and is widely recognized as the most adversarial.

Though its commissioners largely function as a legal tribunal, most are not lawyers but relatives or allies of politicians, appointed usually without regard to experience in the field.

Though many cases turn on medical evaluations, the board has not had its own medical director for nearly a decade. Decisions are often driven by the opinions of doctors certified by the state as so-called independent medical examiners. Yet claimant lawyers and treating doctors say these examiners often understate workers’ ailments to win business from the insurers who pay them. . . . [E]verywhere the system tolerates delays that can make the injured wait months or years for money and care. . . . “A lot of it is meatball justice” [said one lawyer named Anthony Pizza].

Sadly, this process is becoming ever more common in the US, as endless lines become de facto rationing mechanisms for veterans’ benefits and SSDI payments. The chaotic structure of the NY Board reminds me of Simon Johnson’s must-read article on the financial crisis–particularly the sections on elites’ taste for chaos.

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  March 31, 2009 at 8:43 pm   Posted in: Administrative Law, Economic Analysis of Law   Print This Post   No Comments

E-Voting: Something Broken In Need of Something New

posted by Danielle Citron

Vendors assure us that security concerns about their e-voting machines are overblown and that bugs are a thing of the past. But the overwhelmingly evidence suggests otherwise and, at least for Premier (formerly Diebold), these claims ring hollow. Consider these recent events. Last week’s public hearing held by California’s Secretary of State Debra Bowen confirmed that a coding error in Premier’s Global Election Management System (GEMS) tabulation software automatically deletes the first batch of tallied votes from optical scan paper ballots after they are fed into optical-scan machines. As testimony made clear, that software flaw erased 197 vote-by-mail ballots in the November election in Humboldt County, California. At the hearing, Premier representatives admitted that every version of its GEMS tabulation software fails to record significant events that occur on the machines, including when errors in the software deletes votes or when election officials intentionally delete ballots from the system. This problem is widespread as GEMS software tabulates votes for Premier’s touch-screen and optical-scan machines used in more than 30 states. Why are such audit logs critical? They record events that occur on voting systems to ensure the integrity of elections and to help identify the source of any problems in those machines.

These kinds of problems are particularly serious as vote rigging isn’t the unheard of occurence as vendors suggest. For instance, a 10-count indictment unsealed last week accuses five Clay County, Kentucky officials, including a county clerk and election officials, of engaging in corrupt tactics to obtain political power and personal gain in violation of the federal RICO statute. The indictment alleges that an election officer defendant marked votes or issued tickets to voters who had sold their votes and changed votes at electronic voting machines. Another defendant is accused of instructing election officers on how to change votes at the voting machines. Not suprisingly, Colorado’s Election Reform Commission has recommended that county clerks do away with e-voting and shift to all-paper ballot system by 2014. But is that the answer given our long history of fraud with paper ballot systems and the complexity of local voting ballots? Your insights are sorely needed.

  March 26, 2009 at 9:57 am   Posted in: Administrative Law, Technology   Print This Post   4 Comments

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