Law Librarian Blog

Statistical Analysis of Federal Court Judicial Nominations Since the Reagan Administration

It's not like partisan politics in the presidential nomination and Senate confirmation of federal judical candidates is a late 20th century development. It's been around since the days our founding fathers split into Federalists and Democratic-Republicans camps based on fundamental ideological differences over the role of the federal government. That, however, doesn't mean an analysis of the last 30 or so years of federal judicial appointments isn't warranted. In a recent CRS report, one of the takeaways is the following:

President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).

Of course, the Democratic Party is just as guilty of playing Beltway politics as the Republician Party. Here's an excerpt from the summary of the May 3, 2013 CRS Report, President Obama’s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan:

The process by which lower federal court judges are nominated by the President and considered by the Senate is of continuing interest to Congress. Recent Senate debates in Congress over judicial nominations have focused on issues such as the relative degree of success of President Barack Obama’s nominees in gaining Senate confirmation (compared with other recent Presidents) as well as the number and percentage of vacant judgeships in the federal judiciary and the effect of delayed judicial appointments on judicial vacancy levels. This report addresses these issues, and others, by providing a statistical analysis of nominations to U.S. circuit and district court judgeships during the first terms of President Obama and his four most recent predecessors.

[JH]

New CRS Report on Private Laws: Too late for this year's ALR courses but, hopefully, CRS reports are assigned readings for them

From the summary of Procedural Analysis of Private Laws Enacted: 1986-2013 (RS22450, April 9, 2013):

Between 1986 and 2013 (99th-113th Congresses), 170 private laws were enacted. As of this writing, no private laws have been enacted in the 113th Congress (2013-2014). Most private laws during this period dealt with immigration issues or claims against the government. Of these measures, 65% originated in the House, 9% had cosponsors, and 23% had companion bills. Most were enacted without amendment or need to resolve differences with the other house. This report examines the broad distinctions among these measures in terms of their subject matter, introduction, sponsorship and cosponsorship, referral, method of consideration, amendment, and reconciling of differences between the chambers’ versions of the bill.

Yes, a little late for an ALR course reading assignment this year.  But not next year. Of course, I'm assuming (and hoping) ALR instructors are going beyond the textbook by assigning CRS reports that address executive, legislative and judiciary topics. Another recent example that I believe would be appropriate is The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress (March 8, 2013; R41933) (Featured on LLB here.) [JH]

CRS Questions The Relation of Tax Cuts To Economic Growth

For some reason, the amount of taxes individuals pay compared to their voting habits is in the news.  I don’t take a position on that, but I refer you to this article in the Atlantic, Tax Cuts Don't Lead to Economic Growth, a New 65-Year Study Finds.  The study in question is stated in a CRS report released yesterday called Taxes and the Economy: An Economic Analysis of the Top Tax Rates Since 1945 (Order Code R42729, September 14, 2012).  Here is an excerpt from the Summary:

Advocates of lower tax rates argue that reduced rates would increase economic growth, increase saving and investment, and boost productivity (increase the economic pie). Proponents of higher tax rates argue that higher tax revenues are necessary for debt reduction, that tax rates on the rich are too low (i.e., they violate the Buffett rule), and that higher tax rates on the rich would moderate increasing income inequality (change how the economic pie is distributed). This report attempts to clarify whether or not there is an association between the tax rates of the highest income taxpayers and economic growth. Data is analyzed to illustrate the association between the tax rates of the highest income taxpayers and measures of economic growth. For an overview of the broader issues of these relationships see CRS Report R42111, Tax Rates and Economic Growth, by Jane G. Gravelle and Donald J. Marples. 

Throughout the late-1940s and 1950s, the top marginal tax rate was typically above 90%; today it is 35%. Additionally, the top capital gains tax rate was 25% in the 1950s and 1960s, 35% in the 1970s; today it is 15%. The real GDP growth rate averaged 4.2% and real per capita GDP increased annually by 2.4% in the 1950s. In the 2000s, the average real GDP growth rate was 1.7% and real per capita GDP increased annually by less than 1%. There is not conclusive evidence, however, to substantiate a clear relationship between the 65-year steady reduction in the top tax rates and economic growth. Analysis of such data suggests the reduction in the top tax rates have had little association with saving, investment, or productivity growth. However, the top tax rate reductions appear to be associated with the increasing concentration of income at the top of the income distribution. The share of income accruing to the top 0.1% of U.S. families increased from 4.2% in 1945 to 12.3% by 2007 before falling to 9.2% due to the 2007-2009 recession. The evidence does not suggest necessarily a relationship between tax policy with regard to the top tax rates and the size of the economic pie, but there may be a relationship to how the economic pie is sliced. 

[MG]

"Partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court."

The author of the quote used in this post's title (emphasis in the original), UC Irvine law prof Richard Hasen, adds "[i]n its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. For more about the consequences and implications of congressional gridlock, see Hasen's End of the Dialogue? Political Polarization, the Supreme Court, and Congress [SSRN].

Here's the article's abstract:

This Article considers the likely effects of continued political polarization on the relative power of Congress and the Supreme Court. Polarization already is leading to an increase the power of the Court against Congress, whether or not the Justices affirmatively seek that additional power. The governing model of Congressional-Supreme Court relations is that the branches are in dialogue on statutory interpretation: Congress writes federal statutes, the Court interprets them, and Congress has the power to overrule the Court’s interpretations. The Court’s interpretive rules are premised upon this dialogic model, such as the rule that Supreme Court statutory interpretation precedents are subject to “super strong” stare decisis protection because Congress can always correct an errant court interpretation. Legislation scholars also write as though congressional overriding remains common.

In fact, in the last two decades the rate of Congressional overriding of Supreme Court statutory decisions has plummeted dramatically, from an average of 12 overrulings of Supreme Court cases in each two-year Congressional term during the 1975-1990 period to an average of 4.8 overrides for each term from 1991-2000 and to a mere 2.7 average number of overrides for each term from 2001-2012. Although some of the decline seems attributable to the lower volume of Supreme Court statutory interpretation decisions, the decline in overridings greatly outpaces this decline in cases. Instead, partisanship seems to have strongly diminished the opportunities for bipartisan overridings of Supreme Court cases, in which Democrats and Republicans come together to reverse the Supreme Court.

In its place we see a new, but rarer, phenomenon, partisan overriding, which appears to require conditions of near-unified control of both branches of Congress and the presidency. The two recent examples are the Military Commissions Act of 2006, in which Republicans overturned the Court’s statutory interpretation decision in Hamdan v. Rumsfeld on the habeas corpus rights of enemy combatants, and the Lilly Ledbetter Fair Pay Act of 2009, in which Democrats overturned the Court’s statutory interpretation decision in Ledbetter v. Goodyear Tire & Rubber Company on how to measure the statute of limitations period in certain employment discrimination lawsuits. In a highly polarized atmosphere and with Senate rules usually requiring 60 votes to change the status quo, the Court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation.

Although political polarization has benefited the Supreme Court’s power relative to Congress in the short term, the longer term power relations are more uncertain. Aside from the statutory interpretation dialogue, Congress interacts with the Supreme Court in other ways, including through Senate confirmation of Supreme Court judicial nominees. The recent partisan realignment of the Supreme Court makes it more likely that a Supreme Court judicial nominee will be filibustered in the Senate, thanks to the increasing willingness of Senators to oppose nominees on ideological grounds and increased partisan polarization in the Senate. The number of Senators from the opposing party of the nominating president voting against Supreme Court nominees is approaching or exceeding the filibuster level. Depending upon how the politics plays out in a possible filibuster of a Supreme Court judicial nominee, we may see either an erosion of the use of the filibuster in the Senate or a compromise which would weaken the power of the judiciary, such as term limits imposed upon future Supreme Court Justices.

Part I of this Article demonstrates that despite the model of Congress-Court dialogue, and Supreme Court statutory interpretation tools premised on dialogue, congressional overridings of Supreme Court statutory interpretation precedents have become exceedingly rare. The effect of this change is to empower the Court over Congress. Part II argues that the steep decline in overridings over the last two decades appears due in large part to increased polarization in Congress and not simply to a decline in the number of Supreme Court statutory interpretation cases. When Congress does override a Supreme Court case, it is now more likely to be a partisan overriding, pushed through in periods of unified government. Part III is more speculative. It considers how polarization in Congress and the partisan realignment of the Supreme Court — a Court in which all the conservative Justices are Republicans and all the liberal Justices are Democrats — may eventually lead to a major confrontation in Congress over the power of the Senate filibuster. That confrontation may leave the Senate, the Supreme Court, or both, looking very different than they are today. Furthermore, partisan realignment has the potential to harm the Supreme Court’s legitimacy in a way which we have not witnessed in modern times.

Recommended for consideration as a possible reading assignment in an advanced legal research course, particularly if the ALR course is being conducted this presidential election semester. [JH]

Congressional Staffers Value CRS Reports Over Lobbyists

Those of us in the information business generally accept that Congressional Research Service reports are thorough for their topics and unbiased.  It seems that congressional staffers agree with that sentiment.  The National Journal takes a quick look at one part of survey of congressional staffers and lobbyists and finds that staffers find information from a CRS report valuable by a whopping 86% of respondents.  Issue experts are next on the list with the Congressional Budget Office third.  Lobbyists rate below Beltway publications, Internet searches and constituents for information.  Politico has a broader analysis of the survey results, including charts and graphs.

None of this respect for the CRS stopped the House from a budget vote last week that cut the CRS budget by 1% rather than cutting their own staff, travel, and office expenses.  The bill cuts back on repairs to the Capitol dome as well.  The Sacramento Bee reports the average congressional office budget is $1.4 million a year.  The source of that information?  A CRS report.  [MG]

Hein Adds Congressional Hearings Back to 1927 To HeinOnline

As everyone knows, it's hard to keep track these days of the comings and goings of information on databases.  In case anyone missed it, Hein is adding congressional hearings to its database.  Here's the announcement:

Access more than 3,000 of Covington & Burling's Congressional Hearings in HeinOnline's U.S. Congressional Documents Collection!

We are pleased to announce the addition of Covington & Burling's prestigious collection of Congressional Hearings to HeinOnline's U.S. Congressional Documents Collection. The initial release includes more than 3,000 hearings and 1 million pages of content covering hearings from the 71st Congress (1927) through the 103rd Congress (1994).

The initial screen allows browsing by Congress, chamber, and committee.  The alphabetical list indexes by article.  Thus, a hearing beginning with the word "A" as in "A proposal to modify the research tax credit, and H.R. 4138..." will be with other "A" material.  It's the same with any title beginning with "The."  Text search for the collection is available as well.

Let's hope this is another developing significant collection of congressional documents that helps bring the cost down on the other commercial alternatives.  This stuff is theorectically in the public domain.  Why isn't this collection or something like it on Google Books?  [MG]

Supreme Court Action Today: Statutes of Limitation in Securities Cases, and Congressional Power in Foreign Relations

The fact that the Court is just beginning three days of hearings on the constitutionality of the Affordable Care Act did not stop it from releasing two opinions this morning.  The first of these is Credit Suisse Securities (USA) LLC v. Simmonds (10-1261).  The case involves tolling of the statute of limitations for suits against corporate insiders who realize profits from the purchase and sale, or sale and purchase, of the corporation’s securities within any 5-month period.  The limitations period is two years under §16(b) of the Securities and Exchange Act of 1934.

Simmonds filed various actions against multiple corporate defendants which were consolidated in one case in the Western District of Washington.  These were based on underwritings for IPOs that were offered in the 1990s and 2000s.  That court dismissed 24 of the 55 complaints.  The Ninth Circuit reversed under its own case law which held that the §16b action was tolled until the defendants filed a disclosure statement under §16(a) of the act. 

The Supreme Court reversed the Ninth Circuit, holding that §16(b) by its terms starts the clock running at “the date such profit was realized.”  The Ninth Circuit’s tolling rule has no basis in the statute.  Moreover, the Ninth Circuit rule does not follow established equitable tolling principles which hold that the tolling ends when the fraud was discovered or should have been discovered.  Otherwise defendants could be sued for activities which took place decades before.  The opinion was delivered by Justice Scalia, and joined by all other Justices except Chief Justice Roberts who did not participate in the case.

The second case is Zivotofsky v. Clinton (10-699).  The facts in the case create a conflict between the power of the Executive in light of a Congressional enactment which may or may not intrude on that power.  Zivotofsky was born to American parents in Jerusalem in 2002.  The State Department practice was to stamp passports for those born in Jerusalem specifically with the word “JERUSALEM” and not Israel or Jordan. 

Congress passed Foreign Relations Authorization Act, Fiscal Year 2003 which made several policy decisions as to the official treatment of Israel by the United States.  One of these was included a provision that would stamp passports in these circumstances with Israel as the birthplace.  The Act was signed by President Bush with a signing statement that said the provision “impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch.”  Zivotofsky’s parents brought suit to have the passport stamped “Jerusalem, Isreal.”

The lower courts held that the suit was based on a political question and dismissed the case.  The Supreme Court reversed, holding that this is not a political question.  Rather, it is a question as to whether the Act does intrude on the President’s authority to conduct foreign affairs.  If so, it is unconstitutional.  The case was returned to the lower court to create a record.  As the Court noted, it is a court of last resort, not the first resort.  As such it declined to decide the constitutional question at hand.  Chief Justice Roberts delivered the opinion of the Court, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.  Justice Sotomayor filed an opinion concurring in part and concurring in the judgment.  Justice Alito filed an opinion concurring in the judgment.  Justice Breyer dissented.  From my perspective, the validity of the rationale contained in a signing statement gets litigated at last.  [MG]

"Co-sponsor" House Legislation: There's an app for that

Well, it is a Facebook app sponsored by House Majority Leader Eric Cantor. Called Citizen CoSponsor, it allows users to track  and comment on House legislation. Citizen CoSponsor also "provides the majority leader's office with an interesting new grassroots marketing tool for the Republican party's ideas." Quoting from Sarah Lai Stirland's TechPresident story. She adds "For now, the list of legislation that citizens can choose to support is controlled, of course, by Cantor's office and is listed on a section of his web site." (Meaning MajorityLeader.gov.)

This could backfire. All one has to do is "co-sponsor" a bill one opposes and speak one's mind by adding comments. [JH]

More Details On Your Phone Is Spying On You

The news on Carrier IQ software embedded in smart phones seems to be heating up.  Carriers are starting to talk, a little, and Congress is taking notice.  Senator Al Franken is asking pointed questions the company no doubt will not want to answer in any more detail than necessary:

            I ask that you provide answers to the following questions by December 14, 2011. 

(1)                    Does Carrier IQ software log users’ location? 

(2)                    What other data does Carrier IQ software log? Does it log: 

    a.         The telephone numbers users dial?

    b.         The telephone numbers of individuals calling a user?

    c.         The contents of the text messages users receive?

    d.         The contents of the text messages users send?

    e.         The contents of the emails they receive?

    f.          The contents of the emails users send?

    g.         The URLs of the websites that users visit?

    h.         The contents of users’ online search queries?

    i.          The names or contact information from users’ address books?

    j.          Any other keystroke data? 

(3)                    What if any of this data is transmitted off of a users’ phone?  When?  In what form?   

(4)                    Is that data transmitted to Carrier IQ?  Is it transmitted to smartphone manufacturers, operating system providers, or carriers?  Is it transmitted to any other third parties?   

(5)                    If Carrier IQ receives this data, does it subsequently share it with third parties? With whom does it share this data?  What data is shared? 

(6)                    Will Carrier IQ allow users to stop any logging and transmission of this data? 

(7)                    How long does Carrier IQ store this data? 

(8)                    Has Carrier IQ disclosed this data to federal or state law enforcement?     

(9)                    How does Carrier IQ protect this data against hackers and other security threats? 

(10)                  Does Carrier IQ believe that its actions comply with the Electronic  Communications Privacy Act, including the federal wiretap  statute (18 U.S.C. § 2511 et seq.), the pen register statute (18 USC § 3121 et seq.), and the Stored Communications Act (18 U.S.C. § 2701 et seq.)? 

(11)                  Does Carrier IQ believe that its actions comply with the Computer Fraud and Abuse Act (18 U.S.C. § 1030)?  Why? 

I appreciate your prompt attention to this matter.

Senator Franken and other members of Congress may want to ask similar questions to carriers as to what information they collect and what they do with it.  As of now, any statements made so far point to user licensing agreements in accepting the phone.  Look there, the phone companies say.  We comply with that, and since our customers agreed to terms by using our phones and network, well, what’s the problem?  Maybe they haven’t said that in exactly these words, but reports are coming out suggesting that is the essence of the response.  Computerworld has a story where it asked each major company for comment.  Let’s summarize what Computerworld found:

• AT&T admitted using the software, declined to say which phones had it, pointed to privacy policies and would state nothing further, probably on advice of counsel.
• Sprint says it collects information to understand the user experience but does not and cannot look at content.  The “cannot” is not defined as a matter of law or capability.  Just because we can doesn’t mean we will.
• Verizon, RIM, and Nokia say they do not use Carrier ID software, contrary to initial reports.  
• Apple is another matter.  There are reports that the software is there, but limited and turn-offable.  If I had to guess, it’s more likely an AT&T move than something Apple would insist upon, and that’s based on the track record of the two companies.  But again, who knows.  As they used to say on the X-Files, the truth is out there.  
• HTC and Samsung confirmed that they use the software.

I can understand carriers needing to diagnose their networks, possibly with a client on each phone to help.  That makes some business sense.  Microsoft does it with Windows error reports, though if anyone had noticed, they leave it to the customer/user to enable/decide whether a report is transmitted back to Redmond.  Does AT&T et al. really need every phone forcibly enabled for network diagnostics to be effective?  I’ll just note in passing that if any company’s cell and data network needs help, it is good old AT&T, which may explain why that company is so hot on the idea of Carrier IQ software.  I speak from personal experience as an AT&T customer.  I’ll also note that Verizon runs a large nationwide network successfully without Carrier IQ.  What do they use?

But let’s come back to Senator Franken’s questions for a moment.  I, for one, would very much like to know if any data has been shared with third parties and law enforcement.  I’m not suggesting that law enforcement isn’t entitled to investigatory information.  If we are wrangling over whether agents need a warrant to track cars 24/7 or gather cell phone tracking information via triangulation of tower data, then all of a sudden this treasure trove of tracking/information gets even more interesting in light of the Fourth Amendment.

Senator, don’t limit your questions to Carrier IQ.  Ask their customers how they use the software, without allowing them to hide behind terms of service.  And it’s worth asking, I suppose, what else is lurking in our phones?  Any chance for a hearing?  I understand it's a crime to lie to Congress when under oath.  

Update:  As I read Joe's post below, Lawyers and Firm C-Level Types Oftentimes are No Smarter Than the Ordinary Consumer: The Case of Mobile Phone Monitoring, I'll just remind everyone that the problem goes beyond lawyers.  Federal law places certain non-disclosure obligations on student data maintained by schools.  Anyone sending or reviewing senstive or confidential information protected by law needs to be concerned about the security of their phones.  At least until it comes to this.  Then it's really time to give up.  

Update 2:  CNET has published an article that contains more information about carrier responses to inquiries.  AT&T, for example, stands by its privacy policies in the way that it uses the software.  HTC stated it uses the software at carrier request and suggests contacting them for more information.  Apple released a statement saying that they don't collect user data without an opt in and does not include it in iOS5.  Future updates to iOS will remove the software from earlier versions.  Carrier IQ (the company) has denied the wholesale collection of data as demonstrated earlier by researcher Trevor Eckhart.  The CNET story contains mention of security researcher Dan Rosenberg having reverse-engineered Carrier IQ and his analysis shows that the company is telling the truth about its software.  He says there is no code that collects keystrokes for data collection purposes.  As nice as it is to be provocative about this software, there needs to be definitive, verifiable statements as to what this software does and does not do, statements that do not shift meaning depending on the context of who is making it.

The discovery of this software is disturbing, irrespective of the truth of what it does.  Did any of the parties using it wonder what would happen if it eventually got discovered?  Is corporate confusion the best response with some companies tersely admitting that they use it and others gleefully distancing themselves from the product?  I asked earlier what else is on these devices?  We rely on portable communication electronics too much to leave it as a matter of trust that what we do with them remains private when we want it to be private.  At least that's what this disclosure means to me.  Even if it turns out that Carrier IQ is benign, and the jury is still out on that, I'd rather know about it than not.  Do we need an incognito mode just for phone calls?  [MG]

Google's Eric Schmidt Appears Before The Senate Judiciary Committee

Google’s chairman, Eric Schmidt, appeared before the Senate Judiciary Committee yesterday.  The witness testimony is available in prepared remarks and an archived webcast.  The hearing was titled “The Power of Google: Serving Consumers or Threatening Competition?”  Other witnesses included Jeff Katz, the Chief Executive Officer of Nextag, Jeremy Stoppleman, Co-founder and Chief Executive Officer of Yelp, Thomas O. Barnett, Partner at Covington & Burling LLP, and Susan A. Creighton, Partner in Wilson, Sosini, Goodrich & Rosati, PC.  Barnett is a former Bush administration antitrust official and represents Expedia.  Creighton is part of a firm that acts as outside counsel to Google.

The main question raised by the hearing is whether Google is too dominant in search and whether it uses that search leverage to favor its own properties.  The statements and testimony of the parties were somewhat predictable in their points of view.  For Schmidt, Google does not cook its results to favor itself.  For the others, the dominance represents the ability to steer searchers to Google’s own sites to increase revenue and profits.  Senator Mike Lee (R-UT), was hostile to Schmidt.  Lee’s background included representing 1-800-Contacts in actions against Google and pushed for laws limiting the use of keywords.  According to the Wall Street Journal (subscription), a Lee spokesman said the Senator’s call for hearings was not related to his past work.  I’ll take him at his word and leave it at that.

All in all, the hearing did not reveal much in terms of new or startling information.  Is Google a monopoly?  Schmidt said “We’re in that area,” which could be taken as Google may or may not be considered a monopoly.  The company is big enough, has undisputed dominance in search, but whether Google is categorically a monopoly, that answer was not forthcoming in any definitive form.  

Some questions and answers were related to what Google could do voluntarily to prevent government intervention into its practices, and even these were somewhat vague despite the biases of the parties on the issue.  Google tried to portray itself as a provider of information while its antagonists tried to portray it as a company that leveraged its properties to increase revenue.  If anything, no one could consistently agree on such things as what would be the defining market to measure Google’s dominance and practice.  Was it a local advertiser?  A national advertiser? Did it try to manipulate the use of content from sites such as Yelp in Google Places?  Was any of this in the best interest of consumers?  Google is free after all.  Does that matter?  There was a lot of discussion, but no real answers in the legal sense.

Then there were self-serving questions such as whether Stoppelman would start Yelp in today’s search market.  He responded that he would not.  Who knows, really?  Schmidt was at times making similar statements.  He apologized for the business mistakes that Google made in accepting ads for Canadian pharmacies that led to a $500 million fine.  What else was he going to say? That Google pushed it until the revenue the ads generated was no longer worthwhile?

It was a good show on the part of everyone involved, and possibly a preview of the positions the parties will stake out in the real inquiries that are starting up in the European Union and before the Federal Trade Commission.  The Senate may be in a position to explore policy issues, but I can’t imagine legislation aimed at Google and its practices coming to the fore without being driven by some administrative or court ruling in place.  I wouldn’t be so sure that legislation would be forthcoming even then.  Otherwise, the Senate hearing was a nice bit of competent theatre with very important people playing the actors.  How anyone will view it will depend on their biases on the issues and Google.  [MG] 

CRS On The Debt Limit

What with all the goings on about the need to raise the debt limit and the implications for doing so, or not, the Congressional Research Service has issued a report entitled The Debt Limit:  History And Recent Increases.  It doesn't forecast what would happen if the debt ceiling was not raised.  It does note that the Social Security Trust Fund, among other government accounts, is the owner of a whole lot of bonds issued by the government in exchange for cash from social security tax collections.  There may be something to Obama's statement that he can't guarantee the checks to seniors going out after the beginning of August if there is a default.  Anyone following the dance of the debt limit as it has been performed by Congress and the President over the years would find this interesting.  [MG]

Tom Bruce to Congress: Get Your Data in Order

Reporting on last week's hearing of the Committee on House Administration's subcommittee on oversight in Congress Mulls How iPads, XML Can Cut Costs, Elizabeth Montalbano featured Cornell LII Tom Bruce's presentation. Bruce suggested use of smart XML-based word processing, better document management, status tracking and smart tools could increase collaboration in conducting the business of Congress.

To implement these new technologies, however, Bruce said the House needs to get its data in order, which it can do by maintaining compliance with XML-based standards, ensuring the quality of its data, and creating systems that accurately archive legislative information over an extended period of time.

[JH]

Some Thoughts on Internet Privacy Legislation

Yesterday's hearing on consumer privacy before the Senate Judiciary Subcommittee on Privacy, Technology and the Law did not merely highlight the concern of Congress on online data amassed by marketers.  It exposed the conflict within government over its own needs for most of the same information for criminal investigations and prosecutions.  This came in the form of testimony from Jason Weinstein, Deputy Assistant Attorney General in the DOJ's Criminal Division.  While we can all argue about whether there is a need for Apple and Google (an others) to collect location data, the DOJ does like the idea.  It's evidence, after all.

Weinstein's testimony notes that 64% of Americans use smart phones.  I pointed out in this earlier post how Alexis Madrigal subjected his smart phone to forensic analysis and how the results yielded a lengthy virtual history of his online activities.  Think of it as a cautionary tale.  This is the age where some courts are ruling that smart phone and computer hard drive analysis can be conducted by government either without a warrant or expansively beyond the original warrant.  (See 88 Criminal Law Reporter 644).  The real point here is while location tracking is useful for marketers to provide lawful services, the government has an interest in that same information.

Apple says in its various responses to the revelation that iPhones store location information is that the information represents cell phone tower locations.  This information assists the phone in determining its location without resorting to satellite calculations, which in turn extends battery power by using less of it.  The fact that about a year's worth of data collection exists on the phone and computer back ups now turns this feature into a "bug."  Apple claims that none of this shows a person's true location history.  This, I guess, should be interpreted as saying Apple doesn't compromise personal privacy.  Apple, for its part, is updating its software to shorten the data collection period and give customers some options.  What's a person to do, extend battery life or be tracked?  It is now a consumer choice.

But the same information collected by a software "bug" can work with other cell phone information collected by the telcos.  Prosecutors can match phone data with that lawfully subpoenaed from the cell phone companies to the detriment of a defendant.  Or at least a prosecutor would try that strategy.  That the same information collected by marketers on our hand held computers that incidentally make phone calls is also useful to the government is not lost on the DOJ.  Hence Weinstein's testimony suggesting that any legislation take into account existing business surveillance tracking of customers.

The draft bill proposed by Senators McCain and Kerry on consumer privacy does exactly that.  Note that the bill doesn't completely stop data collection as much as it regulates how it is used and disclosed.  Consumers would have rights to opt out of some data collection situations and opt in to others.  Whether a groundswell of people would take advantage of these options is debatable.  Nonetheless, section 405(c) states that the bill does not expand or limit the duty of a covered entity to provide information to a government entity.  I haven't checked the competing bills, but I suspect they will have a provision similar to this if not already included in drafts.  See this story in CNET for additional analysis.   

My prediction on all of this is that either no privacy provision will be enacted, or if one is, it will be weak.  There is too much incentive in the business and law enforcement communities to dramatically change the rules at this point.  Remember the outrage to the Total Awareness Information data mining project did not end it as much as Congress quietly transferring funding and functionality to various security agencies instead.  The government also fought to keep the library provisions in successive re-authorizations of the PATRIOT Act.  That shows some motivations to keep the information pipeline open to government law enforcement agencies.  The information businesses collect is a potential evidence goldmine to attractive to eliminate. 

While we're on the subject, check out this editorial in the Los Angeles Times that highlights some of the privacy problems and rounds up some of the legislative reactions.  It notes, for example, that Facebook tracks users and non-users alike through its "Like" button.  It may not be able to put faces to the non-users, but tracks nonetheless.  Law enforcement likes that.  [MG]

Recent CRS Reports of Interest

What with events happening in Japan, the Middle East and Africa, and the budget issues in the new congress, it's no surprise that the Congressional Research Service is writing topically on these issues.  For the budget, look to the recent report Shutdown of the Federal Government:  Causes, Processes, and Effects (RL3460, February 18, 2011).  It describes in detail how the government implements a shutdown (there is a contingency plan in place), and what services are affected.

Other reports of recent interest are:

• Libya: Unrest and U.S. Policy (RL33142, March 29, 2011)
• Nuclear Power Plant Sites: Maps of Seismic Hazards and Population Centers (R41729, March 29, 2011)
• The Japanese Nuclear Incident: Technical Aspects (R41728, March 29, 2011)
• Operation Odyssey Dawn (Libya): Background and Issues for Congress (R41725, Ma rch 28, 2011)
• Japan's 2011 Earthquake and Tsunami: Economic Effects and Implications for the United States (R41702, March 25, 2011)
• War Powers Resolution: Presidential Compliance (RL33532, March 25, 2011)
• Fukushima Nuclear Crisis (R41694, March 24, 2011)
• Japan-U.S. Relations: Issues for Congress (RL33463, March 24, 2011)
• Japan 2011 Earthquake: U.S. Department of Defense (DOD) Response (R41690, march 22, 2011)
• Yemen: Background and U.S. Relations (RL34170, March 22, 2011)

I wonder if there will be any more CRS Reports forthcoming if the government shuts down.  [MG]

The Freedom of Information Act: Ensuring Transparency and Accountability in the Digital Age

On Tuesday, March 15, the Senate Judiciary Committee held a hearing on The Freedom of Information Act: Ensuring Transparency and Accountability in the Digital Age. Follow the link for the hearing's webcast. Testimony was provided by:

Miriam Nisbet
Director, Office of Government Information Services (OGIS)
National Archives and Records Administration

Melanie Pustay
Director, Office of Information Policy
Department of Justice

Sarah Cohen
Sunshine In Government Initiative
Knight Professor of the Practice of Journalism and
Public Policy Sanford School of Public Policy, Duke University

John Podesta
President and Chief Executive
Center for American Progress

Thomas Fitton
President
Judicial Watch

See also Senate Judiciary Committee discusses FOIA improvements by the Reporters Committee for Freedom of the Press.

Hat tip to First Amendment Law Prof Blog. [JH]

A Bit More on Data Caps

Quite coincidentally (or not), the subject of data caps came up briefly at a House Judiciary Committee hearing on Monday.  Daniel Castro, Senior Analyst for the Information Technology and Innovation Foundation (ITIF) spoke in favor of a stronger legislative response to online piracy.  Much of it focused on legislation that would give law enforcement the tools to combat illegal file sharing such as allowing the editing of DNS servers to eliminate references to know pirate sites, among others.  One of his suggestions concerned the use of data caps to discourage illegal downloading.  I assume he means that consumers would be discouraged from using the Internet to download content if they had to pay more for their data. 

I do not believe ISP data caps would have any significant effect on piracy.  AT&T's has stated that the company would charge $10 for an additional 50 GB after three occurrences of exceeding the monthly limit of 150 GB.  50 GB represents about 10 or more films, in compressed format, and a huge number of songs whether in lossless or mp3 format.  $10 for 50 GB of media sounds like a bargain.  AT&T is essentially taxing pirated content where the "tax" goes to itself rather than the RIAA, the MPAA, or the content creators.  AT&T is not discouraging piracy, merely taking advantage of it to earn a buck or two (billion).  It would take significantly stronger data limits and costs associated with other controls to discourage illegal file sharing, and that's not commercially viable.  Imagine telling middle eastern protesters they have to pay extra to coordinate their revolutions through Facebook.  This is hardly affected by caps in the United States, but the concept is there.  Or telling domestic political operatives that distributing their campaign videos are subject to a possible surcharge on some consumers.  Free but illegal movies and music or Sarah Palin.  What a choice.  Nice try, though. 

Ars Technica has a story on the testimony, and the hearing materials are here.  The Ars story is a bit over the top, but the point is well taken.  While we're on the subject on intellectual property controls, see this Ars Technica article on what amounts to the Son of the ACTA treaty.  The U.S. government didn't get the global intellectual property controls it wanted through ACTA.  Now comes Trans-Pacific Partnership (TPP) which has its own secret history, apparently, for the last four years.  [MG]

Government Wants ISPs to Retain User Information To Aid Law Enforcement

Last week Congress heard from the Justice Department and other law enforcement officials on the proposal to require ISPs to keep detailed records on its customers' activities on the Internet for about two years.  This comes up from time to time, most recently before this in 2006 when then Attorney General Alberto Gozales pushed the proposal.  The purpose would allow law enforcement authorities to have a detailed online history for anyone who caught their interest.  The main justification at the time was to aid investigation into child pornography offenses.  Congress listened and did not enact a law to that effect.  That hasn't changed with the current hearing, titled "Data Retention as a Tool for Investigating Internet Child Pornography and Other Internet Crimes."  

There was push back at the time of the 2006 hearing from various civil liberties groups on how citizen privacy would be affected by such a law (like a lot).  There was also push back from ISPs, as keeping detailed records which the government wanted costs more money than the standard billing record retention.  The current practice for storing minimal information would be anywhere from one to six months depending on provider.  The government answered that one by offering to subsidize the ISPs, to some extent, for the extra overhead.     

The legislator pushing the current proposal is the same on who pushed it the last time, Rep. James Sensenbrenner (R-WI).  He is reported to have backed away from actually submitting the bill shortly after he proposed it in 2006.  We'll have to see if history repeats itself.  The issues on both sides of proposed law haven't changed much, if at all, in two years.

Jason M. Weinstein, Deputy Assistant Attorney General leads off his testimony with examples of heart-wrenching cases of child abuse that could have been solved if data retention requirements were in place.  He notes other cases that were solved with "lick" that the records were there.  His argument is that data retention is all over the place with respect to the time an ISP would keep it.  His second argument is that those with privacy concerns should be heartened by this type of legislation, as it will help law enforcement go after those who violate privacy.  He notes that though there may be large amounts of information kept by ISPs, the government would still need to use standard procedures to gain access to it.  Though he advocates for the legislation, he doesn't offer specific proposals:

In offering this testimony, our goal is explain the nature of the public safety interest in data retention by providers. We do not attempt to discuss appropriate solutions, evaluate cross-cutting considerations, or evaluate the proper balance between data retention and other concerns. We look forward to continuing the dialog on these important issues with Congress, industry, and other interested organizations.

Weinstein's positions are supported by Chief John M. Douglass, Chair of the Mid-Sized Cities Section, International Association of Chiefs of Police.  His testimony extols the use of tracking information in solving Internet related crimes.  His case examples are all successful, though ironically under existing law.  More tracking information is wonderful and welcome.

What's missing from both of these presentations is context.  Nothing in what they say conveys any sense of how the lack of available data has impaired past investigations.  In other words, how many cases are there that were not successfully prosecuted because of a lack of Internet tracking data compared to successful prosecutions. Wouldn't that determine the need for formal retention requirements?  And just as important, wouldn't that information help identify what kinds of data retention should be in place?  

The other side is represented by Kate Dean, Executive Director of the U.S. Internet Service Provider Association, and John B Morris, Jr., General Counsel of the Center for Democracy and Technology.  Dean's testimony focuses on how her members work with law enforcement to track down child pornographers and others through voluntary cooperation, the burden that would be placed on her members from mandated retention, and the lack of specifics (at this stage) of what retention means.  Current law works well, she says, and that her organizations members work with law enforcement constantly to identify and prosecute predators.  Congress should identify where the system in place doesn't work before considering changes.  She raises the point that potential transactions to record can number in the billions, which may actually slow down the ability to provide timely information to law enforcement.

Morris' testimony covers the impact a retention law would have on an individual's privacy, the increased risk to identity theft, and the chilling effect on First Amendment rights.  Although he didn't say it, the government's track record when it comes to laws involving the Internet that implicate the First Amendment is low.  Any law passed by Congress would be up for a challenge.  Morris makes the point that everyone would be subjected to the law, though not everyone has criminal intent in using online access.  Echoing Dean, there are more possibilities for data breaches when there are more records in more databases.  I can understand the concern.  How many secure databases have been breached and private data either winding up online or sold by criminal elements?  I think the best example is the Wikileaks breach.  Wasn't the stream of diplomatic cables supposed to be secure?  Can private industry do better than the government when it comes to keeping a secret?

I tend to agree that creating open-ended data collection is a bad idea.  One of the points raised in the 2006 hearing is the concept of mission creep.  Data collection begins with storing IP addresses.  Then, wouldn't it be interesting to see where that IP address went?  Let's store addresses.  Then, wouldn't it be interesting to store copies of those pages in case that IP address is the target of a criminal investigation?  Internet content changes all the time, after all.  Wouldn't it be a good thing if we made all of that available to intellectual properties holders and other civil plaintiffs who are enforcing property rights?  It may be a parade of horribles, as the courts say.  Some of them were plausible enough the first time around for this idea.  

Any change in the law should be justified on the basis of where it doesn't work, not on the basis of what law enforcement could do if they knew everything about everybody.  Saying that the Department of Justice could have caught one more horrible individual should not be enough to put the entire Internet population under a microscope.  Existing laws didn't stop the FBI from swooping down on a few individuals in conjunction with the DDOS attacks against Visa et al.  

On one hand, the goverment seems concerned about what marketers know about us, and to what detail, by proposing laws or regulations that give consumers the right to opt out of tracking.  On the other, it wants to exempt itself from those same concerns.  Right now, I think I would trust Google, Yahoo, or even Microsoft before I would trust the government to get this right.  [MG]

Profiling 112th Congress Freshman Members

OpenCongress Wiki has and is requesting additional information for its profile of each of the 100+ members of the freshman class of 2012. Freshman Members wiki. See also Conor Kenny's Open Congress Blog post, Get the Story (and Add What You Know) on the Freshman Members. [JH]

OpenCongress Users' 10 Most-Opposed Bills Expected to be Reintroduced in the 112th Congress

In 10 Unpopular Bills That We'll Be Seeing Again Next Year, Donny Shaw reports on the most-opposed bills of the previous Congress that are likely to be introduced again in 2011.

These are the bills with the most “no” votes among OpenCongress users, as tracked by our Battle Royale, that didn’t become law in the past session. It’s by no means a complete picture of political sentiments across the country, but it gives us a unique view into what specific proposals from Congress have gotten people concerned and engaged over the past two years.

[JH]

Ralph Nader, Really? Congressional Hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks

On December 16, 2010, the House Committee on the Judiciary conducted a hearing on the Espionage Act and the legal and constitutional issues raised by WikiLeaks. The link to the video webcast is available of this page. The witness list identifies the following participants:

• Abbe D. Lowell, Partner, McDermott Will & Emery LLP, Washington, DC
• Kenneth L. Wainstein, Partner, O'Melveny & Myers LLP, Washington, DC
• Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor and Former Dean, University of Chicago Law School, Chicago, IL
• Gabriel Schoenfeld, Ph.D., Senior Fellow, Hudson Institute, New York, NY
• Thomas S. Blanton, Director, National Security Archive at George Washington University, Washington, DC
• Stephen I. Vladeck, Professor of Law, American University Washington College of Law, Washington, DC
• Ralph Nader, Legal Advocate and Author, Washington, DC

Ralph Nader, really? That's the best independent legal advocate the Committee's staff could think of? [JH]