Archive for the ‘Administrative Law’ Category

Brett Frischmann’s Contribution to Policy Debates Regarding Governance of Infrastructures

posted by Barbara A. Cherry

Because the framing of issues is so critical to how policy debates are conducted and policy outcomes are ultimately chosen, Brett’s analysis contributes to more balanced discussion within policy debates related to governance of infrastructures. Brett’s book emphasizes the functional role both of infrastructure resources to society and of commons as a resource management strategy, providing important insights for considering appropriate governance of infrastructure resources. Its analytical strength stems from development of a typology of different infrastructures “based on the types of systems dependent on the infrastructural resource and the distribution of productive activities it facilitates” (p. 61), which is then used to understand the importance of (what Brett describes as) demand-side characteristics of various types of infrastructures. This demand-side functional approach is contrasted with the supply-side approach that has tended to dominate the focus of policy debates related to governance of infrastructures.

To understand Brett’s analysis, it is critical to understand the definitions of component terms and certain economic and legal concepts upon which his analysis is based. For this reason, one has to patiently work their way through substantial portions of the book that lay the foundation for understanding how his typology contributes to understanding commons management (a form of nondiscriminatory access rule) to infrastructures both generally and in specific contexts. This is a compliment – not a criticism – of how Brett took on the challenge of carefully constructing analytical arguments, particularly from concepts of law and economics of which readers are likely familiar but perhaps with differing shades of meaning.

However, it is also challenging to accurately incorporate the research of others who are also attempting to contribute towards a more balanced policy debate of governance related to access to infrastructures. In this regard, for me, a weakness in the analysis throughout Brett’s book is some inaccuracies (or insufficient clarity) as to the functional role of various bodies of law that have developed to address access problems in varying contexts. For example, discussion of common carriage (see p. 218) conflates origins of the common law of common carriage and public utilities. The origins of common carriage obligations are based on duties under tort law; and it is public utility law, not common carriage, that developed in part from laws of franchise and monopoly. But because some infrastructures – such as railroads, telegraphy and telephony – are both common carriers and public utilities, the distinctive functional roles of the two bodies of law have come to be conflated and misunderstood. This conflation, in turn, has tended to mislead discourse related to many deregulatory telecommunications policies, including network neutrality.

Therefore, in my view, the contribution of Brett’s work towards a more balanced policy discussion of governance of infrastructures would be further strengthened by juxtaposition of his functional approach to infrastructure resources with a more carefully delineated (and accurate), functional approach to the various bodies of law that have developed thus far to address varying forms of infrastructure access problems.

 

  April 25, 2012 at 2:57 pm   Posted in: Administrative Law, Economic Analysis of Law, Infrastructure Symposium, Politics, Symposium (Infrastructure)   Print This Post   2 Comments

Introduction: Symposium on Infrastructure: the Social Value of Shared Resources

posted by Brett Frischmann

I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts. 

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Abstract:

Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.

The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.

Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.

In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.

Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.

  April 24, 2012 at 3:05 pm   Posted in: Administrative Law, Antitrust, Bright Ideas, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Infrastructure Symposium, Innovation, Intellectual Property, Legal Theory, Media Law, Property Law, Technology, Uncategorized   Print This Post   No Comments

Cybersecurity Legislation and the Privacy and Civil Liberties Oversight Board

posted by Peter Swire

Along with a lot of other privacy folks, I have a lot of concerns about the cybersecurity legislation moving through Congress.  I had an op-ed in The Hill yesterday going through some of the concerns, notably the problems with the over broad  ”information sharing” provisions.

Writing the op-ed, though, prompted me to highlight one positive step that should happen in the course of the cybersecurity debate.  The Privacy and Civil Liberties Oversight Board was designed in large part to address information sharing.  This past Wednesday, the Senate Judiciary Committee had the hearing to consider the bipartisan slate of five nominees.

Here’s the point.  The debate on CISPA and other cybersecurity legislation has highlighted all the information sharing that is going on already and that may be going on in the near future.  The PCLOB is the institution designed to oversee problems with information sharing.  So let’s confirm the nominees and get the PCLOB up and running as soon as possible.

The quality of the nominees is very high.  David Medine, nominated to be Chair, helped develop the FTC’s privacy approach in the 1990′s and has worked on privacy compliance since, so he knows what should be done and what is doable.  Jim Dempsey has been at the Center of Democracy and Technology for over 15 years, and is a world-class expert on government, privacy, and civil liberties.  Pat Wald is the former Chief Judge of the DC Circuit.  Her remarkably distinguished career includes major experience on international human rights issues.  I don’t have experience with the other two nominees, but the hearing exposed no red flags for any of them.

The debates about cybersecurity legislation show the centrality of information sharing to how government will respond to cyber-threats.  So we should have the institution in place to make sure that the information sharing is done in a lawful and sensible way, to be effective and also to protect privacy and civil liberties.

  April 21, 2012 at 5:02 pm  Tags: CISPA, civil liberties, cybersecurity  Posted in: Administrative Law, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security)   Print This Post   One Comment

Banning Forced Disclosure of Social Network Passwords and the Polygraph Precedent

posted by Peter Swire

The Maryland General Assembly has just become the first state legislature to vote to ban employers’ from requiring employees to reveal their Facebook or other social network passwords.  Other states are considering similar bills, and Senators Schumer and Blumenthal are pushing the idea in Congress.

As often happens in privacy debates, there are concerns from industry that well-intentioned laws will have dire consequences — Really Dangerous People might get into positions of trust, so we need to permit employers to force their employees to open up their Facebook accounts to their bosses.

Also, as often happens in privacy debates, people breathlessly debate the issue as though it is completely new and unprecedented.

We do have a precedent, however.  In 1988, Congress enacted the Employee Polygraph Protection Act  (EPPA).  The EPPA says that employers don’t get to know everything an employee is thinking.  Polygraphs are flat-out banned in almost all employment settings.  The law was signed by President Reagan, after Secretary of State George Shultz threatened to resign rather than take one.

The idea behind the EPPA and the new Maryland bill are similar — employees have a private realm where they can think and be a person, outside of the surveillance of the employer.  Imagine a polygraph if your boss asked what you really thought about him/her.  Imagine your social networking activities if your boss got to read your private messages and impromptu thoughts.

For private sector employers, the EPPA has quite narrow exceptions, such as for counter-intelligence, armored car personnel, and employees who are suspected of causing economic loss.  That list of exceptions can be a useful baseline to consider for social network passwords.

In summary — longstanding and bipartisan support to block this sort of intrusion into employees’ private lives.  The social networks themselves support this ban on having employers require the passwords.  I think we should, too.

  April 11, 2012 at 1:14 pm  Tags: Facebook, Maryland, passwords, polygraph  Posted in: Administrative Law, Cyber Civil Rights, Cyberlaw, Privacy, Privacy (Consumer Privacy), Social Network Websites   Print This Post   13 Comments

Viewpoint, Voting, and Structuring the Electorate

posted by Janai S. Nelson

I am delighted to join the blogging community of Concurring Opinions for the month of April.  Thanks to Solangel Maldonado and Daniel Solove for their gracious invitation.

Denying voting rights to citizens with felony convictions has gotten a bad rap. The reason it’s not worse is because that rap is based on only half the story.  Anyone familiar with the complexion of our prison population knows that felon disfranchisement laws extend striking racial disparities to the electoral arena.  Less known, however, is that citizens with felony convictions are excluded from the electorate, in part, because of perceptions about how this demographic might vote or otherwise affect the marketplace of ideas.  In other words, citizens with felony convictions are denied the right to vote because of their suspected viewpoint.

Picking up on this point earlier this year, Michael Dorf highlighted a dispute between Republican presidential candidates Mitt Romney and Rick Santorum about which of them held the most conservative position concerning the voting rights of citizens convicted of a felony.  Inventing a criminal persona named Snake, Dorf queried what issues might provoke such a person to vote: Lower protections for private property or public safety? Redistribution of public resources from law enforcement to education, health, or recreation?  Elimination of certain criminal laws?  I can fathom many other lawful motivations for voting.  However, as Dorf points out (and decidedly rejects), the underlying objection to allowing citizens with felony convictions to vote is based on an assumption that, if they could vote, they would express self-serving and illegitimate interests. In other words, the viewpoint that felons would express through voting has no place in the electoral process.

I have always assumed that my viewpoint was precisely what I and other voters are supposed to express at the ballot box.  Whether that viewpoint is shared, accepted, condoned or vehemently disdained and abhorred by others is irrelevant to the right to vote.  Not so for citizens with felony convictions.  This group of citizens is presumed to possess deviant views that justify their exclusion from the electorate and the denial of a fundamental right. Read the rest of this post »

  April 3, 2012 at 9:37 am  Tags: Constitutional Law, Election law, equal protection, felon disfranchisement, First Amendment, prisoner's rights, right to vote, voting qualifications, voting rights  Posted in: Administrative Law, Civil Rights, Constitutional Law, Courts, Culture, Current Events, Election Law, Law and Humanities, Race, Uncategorized   Print This Post   14 Comments

Recommended Reading: Harlan Yu and David Robinson on The New Ambiguity of “Open Government”

posted by Danielle Citron

Last week, we had an engrossing discussion of Julie Cohen’s Configuring The Networked Self, which embraces three key principles for protecting the structural conditions of human flourishing, including transparency of networked architecture which routes, shapes, and determines the collection, use, and flow of information.  Harlan Yu of Princeton’s Center for Information Technology Policy and David Robinson of the Yale Information Society Project have done important work puzzling through the question of transparency, and the related concerns of privacy and civil engagement, in “open government” efforts.  Their conclusion:

Separating technological from political “openness”—separating the ideal of adaptable data from that of transparent politics—will yield benefits for all sides. New technologies, cut free from the heavy political burdens they have recently been made to carry, will be free to assume their widely varied natural roles, spreading throughout government in nimble and unpredictable ways, and helping governments at every level pursue all kinds of objectives. The Internet will still help, where it can, to make regimes more transparent.

At the same time, a clearer focus on transparency will give political reformers, who will no longer be shoehorned together with technologists, more freedom to focus on the political questions that motivate them in the first place. From their perspective, technology will do what it always does when working well: fade into the background and make room for human concerns.

When I spoke at Princeton about my work on Technological Due Process, Robinson and Yu helped me puzzle through my privacy concerns about Government 2.0, which I then developed in “Fulfilling Government 2.0′s Promise with Robust Privacy Protections,” 78 Geo. Wash. L. Rev. 822 (2010).  They are exciting thinkers, and their newest piece helps us appreciate and conceptualize calls for transparency and open government and the appropriate role technologists and technology can and should play.

  March 16, 2012 at 8:38 am   Posted in: Administrative Law, Cyberlaw, Politics, Privacy, Technology, Web 2.0   Print This Post   One Comment

Speaking of Automated Systems

posted by Danielle Citron

Thanks so much to everyone participating in the LTAAA symposium: what a terrific discussion.  Given my work on Technological Due Process, I could not help but think about troubled public benefits system in Colorado known as CBMS.  Ever since 2004, the system has been riddled with delays, faulty law embedded in code, and system crashes.  As the Denver Post reports, the state has a $44 million contract with Deloitte consultants to overhaul the system–its initial installation cost $223 million with other private contractors.  CBMS is a mess, with thousands of overpayments, underpayments, delayed benefits, faulty notices, and erroneous eligibility determinations.  And worse.  In the summer of 2009, 9-year-old Zumante Lucero died after a pharmacy — depending upon the CBMS system — wouldn’t fill his asthma prescription despite proof the family qualified for Medicaid help.  In February 2011, CBMS failed eight different tests in a federal review, with auditors pointing to new “serious” problems while saying past failures are “nearly the same” despite five years of fixes.  The federal Centers for Medicare and Medicaid Services (CMS), which provides billions of dollars each year for state medical aid, said Colorado risks losing federal money for programs if it doesn’t make changes from the audit.  All of this brings to mind whether a legal theory of automated personhood moves this ball forward.  Does it help us sort through the mess of opacity, insufficient notice, and troubling and likely unintended delegation of lawmaking to computer programmers?  Something for me to chew on as the discussion proceeds.

Image: Wikimedia Commons

  February 15, 2012 at 5:55 pm  Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents  Posted in: Administrative Law, Architecture, Symposium (Autonomous Artificial Agents)   Print This Post   3 Comments

The Yale Law Journal Online: Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming

posted by Yale Law Journal

The Yale Law Journal Online has published a response to Benjamin Ewing and Douglas Kysar’s article Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November 2011 issue of YLJ. In Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming, Richard Epstein argues Ewing and Kysar’s “prods and pleas” will not solve the issue of global warming. Because global warming is a worldwide phenomenon, “the traditional allocation of responsibility between private rights of action (for large concentrated harms) and direct government administrative action (for diffuse harms) remains the proper approach.” Epstein suggests that the Supreme Court made the correct decision in American Electric Power Co. v. Connecticut and adds that the powers given to the Environmental Protection Agency displace private rights of action under both federal and state law.

Preferred citation: Richard A. Epstein, Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming, 121 YALE L.J. ONLINE 317 (2011), http://yalelawjournal.org/2011/12/06/epstein.html.

  December 12, 2011 at 9:11 am   Posted in: Administrative Law, Law Rev (Yale), Tort Law   Print This Post   No Comments

Pretext, the Rule of Law, and the Good Official

posted by Jeffrey Kahn

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car.  One lesson of this case is that you should always signal before making a turn.  Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.”  In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal.  In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.”  Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.”  Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”  The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law?  When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one?  My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself.  Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands.  Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action.  One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice.  Surprisingly, that case foretold and influenced the “easy” Whren case.  The other involves a former college football player caught up in the current “War on Terror.”  That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

Read the rest of this post »

  November 29, 2011 at 3:15 pm   Posted in: Administrative Law, Civil Rights, Constitutional Law, Criminal Procedure, Immigration, Supreme Court, Uncategorized   Print This Post   No Comments

Recommended Reading: David A. Super’s Against Flexibility

posted by Danielle Citron

Cornell Law Review just published Professor David Super’s article Against Flexibility, a forceful and engrossing indictment of flexibility and legal procrastination at its core.  Here is the abstract:

Contemporary legal thinking is in the thrall of a cult of flexibility. We obsess about avoiding decisions without all possible relevant information while ignoring the costs of postponing decisions until that information becomes available. We valorize procrastination and condemn investments of decisional resources in early decisions.

Both public and private law should be understood as a productive activity converting information, norms, and decisional and enforcement capacity into outputs of social value. Optimal timing depends on changes in these inputs’ scarcity and in the value of the decision they produce. Our legal culture tends to overestmate the value of information that may become available in the future while discounting declines over time in decisional resources and the utility of decisions. Even where postponing some decisions is necessary, a sophisticated appreciation of discretion’s components often exposes aspects of decisions that can and should be made earlier.

Disaster response illustrates the folly of legal procrastination as it shrinks the supply of decisional resources while increasing the demand for them. After Hurricane Katrina, programs built around flexibility failed badly through a combination of late and defective decisions. By contrast, those that appreciated the scarcity of decisional resources and had developed detailed regulatory templates in advance provided quick and effective relief. 

  September 30, 2011 at 6:03 pm   Posted in: Administrative Law, Economic Analysis of Law, Law and Inequality, Legal Theory   Print This Post   2 Comments

Jost on a Drafting Error in the Affordable Care Act

posted by Frank Pasquale

A few days ago, Timothy Jost offered insights on the Fourth Circuit’s jurisdictional rulings on constitutional challenges to the Affordable Care Act. (That post was part of a terrific series he has done for the Health Affairs Blog.) Today, Jost offers a fascinating perspective on “an ACA drafting error that would seem to deprive millions of uninsured Americans of tax credits to purchase health insurance and invalidate regulations recently proposed by HHS and the Treasury Department:”

The mistake is found in section 1401 of the ACA, which creates a new section 36B of the IRC. Two subsections of 36B ((b)(2)(A) and (c)(2)(A)(i)) suggest that premium tax credit eligibility under the ACA depends on the applicant being enrolled in a qualified health plan “through an Exchange established by the State under section 1311.” This would in turn suggest that individuals enrolled in a qualified health plan through a federal exchange established under section 1321(c) would not be eligible for premium tax credits, contrary to the recent proposed regulations.

That this is a drafting error is obvious to anyone who understands the ACA. Section 1311 of the ACA requests the states to establish American Health Benefit Exchanges and sets out the duties of the exchanges. Section 1321 of the ACA, however, provides that if a state elects not to establish and exchange or fails to do so, HHS must “establish and operate” an exchange in such a state and “take such actions as are necessary to implement” the other requirements of title I of the ACA, which includes section 1401. There is no coherent policy reason why Congress would have refused premium tax credits to the citizens of states that ended up with a federal exchange. None of the CBO reports scoring the ACA suggest that premium tax credits would only be available though 1311 state exchanges and not through 1321 federal exchanges. It is, finally, highly unlikely that the House, whose bill included only a federal exchange, would have approved a bill that only provided tax credits through state exchanges but not through the federal exchange.

For the full argument, check out his post at the Health Reform Watch blog.

  September 11, 2011 at 10:04 am   Posted in: Administrative Law, Health Law, Tax   Print This Post   20 Comments

Recommended Reading: The People’s Agents and the Battle to Protect the American Public

posted by Danielle Citron

My colleague Rena Steinzor and Sidney Shapiro recently published The People’s Agents and the Battle to Protect the American Public: Special Interests, Government, and Threats to Health, Safety, and the Environment (University of Chicago Press).  The book analyzes the performance of five agencies they call the “protector agencies:”  the Consumer Product Safety Commission, Environmental Protection Agency, Food and Drug Administration, National Highway Traffic Safety Administration, and Occupational Safety and Health Administration.  Its findings are grim.  Using case studies, the book shows how the protector agencies are malfunctioning and explores the sources of the trouble.  It attributes the disappointing performance of the agencies to external pressures, including the President’s requirement that agencies engage in cost-benefit analysis before issuing a major rule and other forms of Presidential interference as well as the weakening of the civil service and inadequate funding and staffing of agencies.  The book offers thoughtful solutions that are carefully tailored to the problems that the authors identify.

Richard Pierce reviewed the book in the George Washington Law Review, and he writes that this “excellent book is compulsory reading for anyone who is interested in the performance of regulatory agencies.”  For Pierce, the “book is so well researched and well written that I learned a lot even from the chapters with which I disagree.”  He explains that, for instance, while he continues to believe in agency cost-benefit analysis for major rules, the authors “do such a good job of criticizing the cost-benefit analysis requirement and of documenting its bad effects that I am forced at least to acknowledge the need for major changes in the ways in which agencies and the White House implement” it.  The authors also “provide an accurate and persuasive account of the many adverse effects of the hard look doctrine,” that is, the judicial requirement that an agency must take a hard look at a problem and its potential solutions before issuing a rule, and prescribe a new approach that would be less intrusive and more determinate.  Pierce ends the review with this:

Justice Scalia once said that ‘Administrative law is not for sissies –so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture’  I highly recommend that anyone who is interested in the future of administrative law and government regulation read Steinzor and Shapiro’s important book.  But to paraphrase Justice Scalia, you should not read the Steinzor and Shapiro book in conjunction with this review unless you are prepared to “lean back, clutch the sides of your chairs, and steel yourselves for” a serious encounter with depression.  Oh, and you should make sure there are no sharp objects in the vicinity if you take seriously both the points Steinzor and Shapiro make in their book and the points I make in this review.”

  July 22, 2011 at 5:44 pm   Posted in: Administrative Law, Consumer Protection Law, Environmental Law   Print This Post   One Comment

The Continued Need for Technological Due Process

posted by Danielle Citron

As my work on Technological Due Process explored, government increasingly uses automated systems to help human administrators make decisions about people’s important rights.  Sometimes, the computers make the decisions with varying degrees of oversight.  Government decision-making systems include data-matching programs, which compare two or more databases with an algorithmic set of rules that determine the likelihood that two sets of personal identifying information represent the same individual.

Data-matching programs frequently misidentify individuals because they use crude algorithms that cannot distinguish between similar names.  Sometimes, this accords with policy.  Better to have more false positives when it comes to finding terrorists, than more false negatives.  Other times, it’s a problem that humans resolve before anyone gets hurt.  Yet, time and again, human operators fall down on the job.

Here’s a recent example.  An anti-terrorism facial recognition system scans databases of state driver’s license images to prevent terrorism, reduce fraud, and improve the accuracy of identification documents issued by states.  Massachusetts started using the software after receiving a $1.5 million grant from the U.S. Department of Homeland Security.  On March 22, Massachusetts resident John Gass received a letter from the state motor vehicles registry informing him that he had to cease driving because his license had been revoked.  From various news reports, it seems that the letter did not tell Mr. Glass why he lost his license.  It was only after various calls and a hearing with motor vehicle officials that he learned that the system identified his license as evidence of potential fraud.  The system flagged Glass because he looked like another driver, not because his image was used to create a fake identity.  The motor vehicles registry reinstated his license after ten days of wrangling “to prove he is who he says he is.”  Not surprisingly, Gass is not alone.  The system picked out more than 1,000 cases last year that resulted in investigations, and some were guilty of nothing more than looking like someone else. Read the rest of this post »

  July 20, 2011 at 1:19 pm   Posted in: Administrative Law, Technology   Print This Post   2 Comments

Treasury’s AIG Gag Order

posted by Lawrence Cunningham

Top business executives in the United States regularly contact Members of Congress to lobby on legislation and other matters of public policy. But since the September 2008 government takeover of AIG, executives of that company have been forbidden to do so, unless they first get the Treasury Department’s permission, and the Treasury Department refuses to grant it.

Since AIG executives are afraid to speak out, disclosure of this un-American provision was left to Maurice (“Hank”) Greenberg, former chair and until 2008 the largest shareholder of AIG. He disclosed it yesterday on CNBC.

This is yet another example of the dubious tactics used in Sept. 2008 by Hank Paulson and Tim Geithner when they wrested control of AIG for the U.S. government. Besides having scant legal authority for their takeover actions, the successive Treasury Secretaries tried to keep from the public how the government funds injected into AIG did not support it or its shareholders or employees but were funneled as a backdoor bailout of Goldman Sachs and other Wall Street firms.

It is thus par for the course—but equally outrageous—that we now learn that when Paulson and Geithner imposed this straightjacket on AIG, they also made the company (a) adopt a policy suspending all lobbying and then (b) sign a loan agreement prohibiting it from changing that policy without Treasury’s consent—which apparently may be withheld for any reason or no reason. Read the rest of this post »

  June 21, 2011 at 2:37 pm   Posted in: Administrative Law, Civil Rights, Contract Law & Beyond, Corporate Finance, Corruption, Current Events, Politics   Print This Post   No Comments

Black Box Government: The Whole Picture

posted by Danielle Citron

The media often assesses governmental transparency issue by issue.  The Obama Administration gets an annual rating for its performance on FOIA compliance.  It receives press for its invocation on the state secrets privilege.  And so on.  But it may be worth taking stock of the total picture.  From the state secrets privilege to the proposed SHIELD Act and FOIA, the Obama Administration seems in pursuit of black box government much like its predecessor.  On reflection, the Administration’s call for a more transparent government in January 2009 seems a mismatch with its actions.  In this way, theory and practice don’t coincide.

The Administration has not backed away from its predecessor’s aggressive use of the state secrets privilege.  According to Steven Aftergood, “there is a great deal of continuity between the Bush and Obama administrations . . . . there is no case where the Obama administration has rescinded a claim of state secrets privilege that was advanced by the Bush [administration].”  The U.S. government has recently invoked the state secrets privilege in instances that appear designed to hide government screw ups rather than to protect national security.  For instance, the government hopes to block evidence in a case against a contractor who duped the government into spending millions on allegedly fake counterterrorism technology.  It has invoked the privilege to block a personal injury lawsuit by a CIA employee who alleged that environmental contamination in his home made his family sick. In a case inherited from the Bush administration, Obama’s Justice Department has continued to argue that classified records of eavesdropping on an Islamic charity were state secrets.  Two wiretapped lawyers were awarded $20,400 each, a ruling that last week the Obama administration indicated it would appeal.  ACLU Executive Director Anthony Romero laments that although the President promised to reform abuses of the state secrets privilege as a candidate, he has reneged on that promise as the President.

The Obama Administration has devoted significant energy to punishing whistle blowers.  As Politico reporter Josh Gerstein explains, the Administration is “pursuing an unexpectedly aggressive legal offensive against federal workers who leak secret information to expose wrongdoing, highlight national security threats or pursue a personal agenda.”  Since President Barack Obama took office, prosecutors have filed criminal charges in five cases involving unauthorized distribution of classified national security information to the media and is now considering prosecuting WikiLeaks founder Julian Assange.  The U.S. government, by contrast, only brought three such cases in the preceding 40 years.  Moreover, in response to the Wikileaks disclosures, the Administration has gotten behind the proposed SHIELD Act, which would amend Section 798 of the Espionage Act of 1917.  The amendment would expand the kinds of information covered by the Espionage Act and enables the U.S. government to prosecute private citizens who have not worked for the government or signed a security agreement.

In a recent post, I underscored that FOIA compliance continues to disappoint.  The National Security Archive recently issued its report “Glass Half Full: 2011 Knight Open Government Survey Finds Freedom of Information Change But Many Agencies Lag in Following Obama’s Openness Order.”Although the group found some progress (49 agencies took concrete action in light of the March 2010 White House memorandum instructing agencies to update all FOIA material and assess whether their FOIA resources were adequate), its results were decidedly mixed.  Only 24 agencies actually updated their FOIA training materials, only 13 agencies followed its mandate, and 41 of the agencies remained inert. Of those 41 agencies, 17 could not provide concrete records showing that they had followed the memo’s instructions; two agencies withheld documents by incorrectly citing FOIA exemptions; 17 agencies were still working on the request after more than 100 business days (in violation of FOIA); and four agencies never acknowledged the team’s requests despite numerous calls and faxes. Ancient requests, as old as 18 years, “still languish in the system.” As the team reports, twelve agencies have outstanding FOIA requests older than six years.” Eric Newton, an advisor to the Knight Foundation, remarked that “at this rate, the President’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office.”  At a hearing before the House Committee on Oversight and Government Reform, FOIA expert Daniel Metcalfe expressed his disappointment by the “surprising slowness and incompleteness of the Obama Administration’s new FOIA policy implementation.” Metcalfe lamented the administration’s “do as I say, not as I do mentality,” as evinced by the performance of its lead agency, the Department of Justice, whose FOIA backlog is worse than it was a year ago.

Viewed together with my co-blogger Frank Pasquale’s insights on fusion centers (see our forthcoming article) and his important forthcoming book on The Black Box Society, the Obama Administration, issue for issue, seems to support black box government, not a transparent one.

  May 11, 2011 at 1:02 pm   Posted in: Administrative Law, Government Secrecy   Print This Post   No Comments

Accounting for Power

posted by Andrew Sutter

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a daily segment, “Kyou no genpatsu kiiwaado” – “Today’s nuke reactor keyword”. Any goodwill toward TEPCO has long since evaporated, thanks to its management’s sloth in apologizing, its spokespersons’ frequent misstatements and evasions in daily press conferences, and sympathy for the thousands displaced from the evacuation zone, their livelihoods derailed (and their pets and livestock reluctantly left behind to starve, an aspect of the story that has mobilized many activists here). But it turns out that even the initial goodwill was probably misplaced.
Read the rest of this post »

  May 9, 2011 at 10:24 am   Posted in: Accounting, Administrative Law, Current Events, Environmental Law, International & Comparative Law   Print This Post   2 Comments

The Illusion of Transparency

posted by Danielle Citron

On January 21, 2009, President Obama issued the Open Government memorandum, expressing his commitment to a transparent government.  In that memo, the President instructed executive departments and agencies to administer FOIA with a “clear presumption” in favor of openness.  Attorney General Eric Holder quickly filled in details of the transparency mandate.  His March 19, 2009 FOIA memorandum explained that agencies should err on the side of making discretionary disclosure of information unless the agency could “reasonably foresee” that the disclosure would harm an interest protected by a statutory exemption.  It ordered partial disclosure if an agency determines it cannot make full disclosure of a record as well.  At the time, FOIA experts deemed the President’s commitment to transparency transformational.  No previous President had seemed so interested in open government.

Last year, the National Security Archive issued a cautiously optimistic review of the Administration’s implementation of the FOIA mandate.  According to the Archive’s audit, 38 out of 90 agencies responded to the Holder memo either by explicitly changing their internal policies or by training employees.  Only 13 out of 90 agencies though had actually made concrete changes in their FOIA procedures.  The remaining 52 agencies either had no records to suggest that they had done anything to change their practices or provided no response at all.  With its report, the Archive sent a clear message to the Obama Administration that its policies looked good on paper but needed more leadership.

A few weeks ago, the National Security Archive issued its report “Glass Half Full: 2011 Knight Open Government Survey Finds Freedom of Information Change But Many Agencies Lag in Following Obama’s Openness Order.”  Like the year before, the survey’s team filed FOIA requests with 90 federal agencies that have chief FOIA officers, asking for concrete changes in their FOIA regulations, manuals, training materials, or processing guidance as a result of the Open Government memorandum and a March 2010 White House memorandum instructing agencies to update all FOIA material and assess whether their FOIA resources were adequate.  The team found some progress. For instance, 49 agencies took concrete action in response to the March 2010 memo.  Nonetheless, just 24 agencies actually updated their FOIA training materials, and only 13 agencies followed its mandate.  The bad news: 41 of the agencies remained inert.  Of those 41 agencies, 17 could not provide concrete records showing that they had followed the memo’s instructions; two agencies withheld documents by incorrectly citing FOIA exemptions; 17 agencies were still working on the request after more than 100 business days (in violation of FOIA); and four agencies never acknowledged the team’s requests despite numerous calls and faxes.  Ancient requests, as old as 18 years, “still languish in the system.”  As the team reports, twelve agencies have outstanding FOIA requests older than six years.”  Eric Newton, an advisor to the Knight Foundation, remarked that “at this rate, the President’s first term in office may be over by the time federal agencies do what he asked them to do on his first day in office.” Read the rest of this post »

  April 6, 2011 at 5:14 pm   Posted in: Administrative Law   Print This Post   No Comments

IP vs. Auto Safety

posted by Frank Pasquale

Two items of note on this topic recently. First, the NYT reports on NHTSA’s lazy approach to IP overreach by automakers:

For years, the National Highway Traffic Safety Administration has declined to post on its Web site reports from automakers about problems with their cars and about specialized warranty extensions that could save consumers large sums on repairs. . . . The technical service bulletins . . . provide information on unusual problems with vehicles . . . . Special service campaigns are a form of technical service bulletin that often tell dealers of warranty extensions for particular repairs. “Many manufacturers have asserted that technical service bulletin information is copyrighted and will not waive those copyrights,” [said] an agency spokeswoman . . . . “N.H.T.S.A. has a legal obligation to abide by copyright law.”

NHTSA could easily excerpt the gist of bulletins as fair use. Or it could communicate facts in them without using any of the actual language or diagrams they contain. Anyone who has taken a week of copyright knows about the idea/expression or fact/expression dichotomy. But copyfraud obfuscates this obvious workaround.

Second, ongoing legal battles over Toyota’s sudden acceleration incidents may lead to “security measures typically reserved for classified government secrets:”

The fight centers on access to Toyota’s source code, the software that controls sophisticated engine management and other electronics in its vehicles. Plaintiffs’ attorneys believe the code might contain evidence that could bolster their cases. The Japanese auto maker has been fighting to restrict access to the software, saying it needs to protect what it calls the “crown jewel” of its global enterprise.

Toyota said the attorneys should only be allowed to view parts of the code in a highly secure room, the likes of which is used by members of Congress or in trials against terrorists and spies for viewing classified information.

As I note in the piece, this kind of “qualified transparency” will become more and more common in tech disputes. Debates about “channeling” innovation protection (to patent or trade secret law) will increasingly need to take into account how patent law’s disclosure function could help more people understand potentially dangerous products.

  April 3, 2011 at 1:38 pm   Posted in: Administrative Law, Consumer Protection Law, Intellectual Property, Privacy (National Security), Technology   Print This Post   2 Comments

The (Still Yet) Unfulfilled Promise of Automated Government Decision-Making

posted by Danielle Citron

In Technological Due Process, 85 Wash. U. L. Rev. 1249 (2008), I explored the promise and perils of the increasing automation of administrative decision-making.  The automated administrative state took root after the convergence of a number of trends — the budget shortfalls of the 1990s, the falling costs and increased performance of information systems, and the emergence of the Internet.  Government officials saw computerized automation as an efficient way to reduce operating costs: Automated systems meant less paperwork and fewer staff.  Today, all states now automate a significant portion of the administration of their public benefit programs.  More than fifty federal agencies execute policy with data-matching and data-mining programs.  As a result, agencies increasingly use information systems to make decisions about important individual rights.

Technological Due Process identified three central problems with administrative automated systems.  First, when programmers translate policy into code, they inevitably distort it, thus embedding incorrect policy into systems.  Second, data matching programs misidentify individuals because they use crude algorithms that cannot distinguish between similar names.  Last, automated systems often have problems providing notice to individuals, often because they lack audit trails that capture why government agencies take particular action.

Colorado’s automated public benefits system, known as CBMS, served as an important case study for my work.  Responses to open-sunshine requests revealed that from September 2004 to April 2007, programmers embedded over 900 incorrect rules regarding Medicaid, food stamps, and other public benefits into CBMS.  As a result, CBMS terminated Medicaid benefits of patients with breast cancer based on income and asset limits unauthorized by federal or state law.  It denied food stamps to individuals with prior drug convictions in violation of Colorado law.  And it demanded that eligibility workers ask applicants if they were “beggars,” even though neither federal law nor state law required an answer to that question for the provision of public benefits.  Moreover, because CBMS lacked audit trails, individuals often received wholly deficient notice when the system cut or terminated their benefits.  At times, individuals received no notice.

The past four years has seen little progress.  Although state officials in 2009 thought that entering into a $48.6 million, four-year contract with Deloitte Consulting would help fix these problems, matters have arguably gotten worse.  CBMS, for instance, has delayed processing applications for benefits in 70% of cases (in violation of federal law).  It continues to terminate individuals’ public benefits without notice.  (One case led to the death of a nine-year old boy after a pharmacy would not fill his asthma prescription despite proof that his family qualified for Medicaid help).  Business school professor Don McCubbrey, who I interviewed for Tech Due Process, recently explained to the Denver Post that the recent failures cannot be due to the thousands of new Medicaid and other benefit applications from the recession.  In his view, a “system that large should be able to scale.”  According to Ed Kahn of the Colorado Center on Law and Policy, the system hasn’t just failed to fulfill its federal and state requirements but has “regressed.” Read the rest of this post »

  February 28, 2011 at 12:30 pm   Posted in: Administrative Law, Architecture, Technology   Print This Post   One Comment

Nondelegation and the Bank

posted by Gerard Magliocca

I’m going to observe a “no individual mandate” posting policy for a while. That issue has been flogged to death and there’ll really be nothing new to say until the circuit courts issue their opinions.

So let’s try out something on the nondelegation doctrine.  Most people don’t know that the first major controversy where this argument was made involved the Second Bank of the United States.  Consider these portions of Andrew Jackson’s Veto of the Bank:

“The Government is the only ‘proper’ judge where its agents should reside and keep their offices, because it best knows where their presence will be ‘necessary.’ It can not, therefore, be ‘necessary’ or ‘proper’ to authorize the bank to locate branches where it pleases to perform the public service, without consulting the Government, and contrary to its will. . . . The power which this act gives to establish two branches in any State, without the injunction or request of the Government and for other than public purposes, is not ‘necessary’ to the due execution of the powers delegated to Congress.”

“It is maintained by some that the bank is a means of executing the constitutional power ‘to coin money and regulate the value thereof.’ Congress have established a mint to coin money and passed laws to regulate the value thereof. . . . But if they have other power to regulate the currency, it was conferred to be exercised by themselves, and not to be transferred to a corporation. If the bank be established for that purpose, with a charter unalterable without its consent, Congress have parted with their power for a term of years, during which the Constitution is a dead letter. It is neither necessary nor proper to transfer its legislative power to such a bank, and therefore unconstitutional.”

Both of these passages (especially the latter one) make a nondelegation claim. Indeed, a similar point was advanced by the lawyers for Maryland in McCulloch, but Chief Justice Marshall ignored the issue in his opinion.

  February 7, 2011 at 2:02 pm   Posted in: Administrative Law, Uncategorized   Print This Post   No Comments

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