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How Did You Like the Cybercrime Treaty Debate?
Perhaps you weren’t aware of the Senate’s debate over the cybercrime treaty. You would be like most people. The Senate quietly approved the cybercrime treaty yesterday.
The treaty is the product of years of diligent work among governments’ law enforcement departments to increase their collaboration. It lacks a dual criminality requirement, so Americans may be investigated in the United States for things that are not crimes here. And it applies not just to “cyber” crimes but to digital evidence of any crime, so foreign governments now may begin using U.S. law enforcement to help them gather evidence in all kinds of cases.
But you already knew that if you were following the debate. You were following the debate, weren’t you?
ID-Based Security Is Broken — and Can’t Be Fixed
The Government Accountability Office testified to the Senate Finance Committee today that investigators were easily able to pass through borders using fake documents. Indeed, sometimes documents were not checked at all.
“This vulnerability potentially allows terrorists or others involved in criminal activity to pass freely into the United States from Canada or Mexico with little or no chance of being detected.”
That’s true, but shoring up that vulnerability would add little security while devastating trade and commerce at the border.
Identity-based security works by comparing the identity of someone to their background and determining how to treat them based on that. To start, you need accurate identity information. That’s not easy to come by from people who are trying to defeat your identity system.
Here’s a schematic of how identification cards work from my book Identity Crisis.
![Media Name: harper.jpg](/sites/cato.org/files/styles/pubs_2x/public/download-remote-images/www.cato.org/172395922072/harper.jpg?itok=XMkNSNTt)
As you can see, proof of identity involves three steps: Info goes from the person to the card issuer; info goes from the issuer to the verifier via the card; and the verifier checks to make sure the person and the card match.
Each of these steps is a point of weakness. Let’s take them in reverse order:
Obviously, as the GAO found, if nobody looks at the ID card, the “verifier check” can’t be done and the system fails. If the verifier is careless, the system will also fail. This weakness can be fixed with machine-read biometrics, but that is time-consuming and it typically subjects everyone to monitoring, tracking, surveillance — whatever you prefer to call it.
If the card can be forged or altered, this compromises card security, the second point of weakness in the process. Weakness in card security (non-obvious forgery) is what GAO sought to expose when it stumbled across the fact that border agents weren’t checking IDs at all. Card security can also be fixed various ways, though the best, such as encryption, will also tend to increase monitoring, tracking, and surveillance of every card-holder.
The first step is the hardest by far to fix: getting accurate information about people onto cards. For anyone wanting to defeat the current U.S. identification system, there is a substantial trade in documents that are false but good enough to fool Department of Motor Vehicle employees into issuing drivers’ licenses and cards. Criminals also regularly use the option of corrupting DMV employees to procure false documents. Can this problem be curtailed? Yes. Solved? No.
For the sake of argument, let’s fix all these things with a cradle-to-grave, government-mandated, biometric tracking system. Enough to make even the irreligious think “mark of the beast.” Even then, we will not have effective security against serious criminals and terrorists. The greatest weakness of identification-based security remains.
Knowing who a person is does not reveal what they think or what they plan to do. Examples are legion in terrorism, and routine in crime, of people with no record of wrongdoing being the ones who act.
For example, Al Qaeda selected operatives for the 9/11 attacks who had no known records of involvement in terrorism. (See 9/11 Commission report, page 234.) It was operating in a mode to defeat watch-listing well before the spasm of watch-listing that underlies identification-checks like the ones GAO has found so flawed.
If we were to have a comprehensive, mandatory, biometric identification system, it would help find bad people after they are identified, but do little to secure against attackers who are not already known. Al Qaeda planners would have to continue factoring in a risk they have already accounted for.
And having such a system should be a big “if.” Subjecting all Americans to increased monitoring, surveillance, and tracking, then delaying their lawful trade and travel at the borders, would do a lot of damage to liberty and commerce. It would provide only a tiny margin of security — almost no margin against sophisticated threats.
Feds Lock Up Blogger
The grand jury was created to check the government, but it has been turned into a prosecutorial bulldozer that now tramples over civil liberties.
Item: Josh Wolf, 24, is a freelance journalist and blogger. He wanted to be left alone, but the feds have locked him up because he will not help them investigate the crimes of other people. We generally have the freedom to help the police or to decline. It is up to us to decide. Not so with grand juries. Cooperate–or go to jail. As Mr. Wolf was escorted to his jail cell, the judge intoned that he was not being punished. Rather, the government was merely housing Mr. Wolf with suspected criminals so that he might “change his mind.” Mr. Wolf cannot even challenge the legality of this “procedure” before a real jury because he is not being “punished.” Mr. Wolf is in grandjuryland.
Item: Federal prosecutors are now perusing the phone records of reporters for the New York Times. There was no search warrant that was approved by a federal judge. The records were acquired by a grand jury subpoena, which does not require the approval of a judge. Indeed, prosecutors can issue such subpoenas without even notifying the grand jurors.
Few people appreciate the incredible powers of the grand jury–and it is safe to say that the government likes it that way.
The Federal Government Is Remarkably Efficient (at Throwing People in Prison)
The Pittsburgh Tribune-Review reports some disturbing statistics on conviction rates at the federal level:
About 95 percent of federal criminal defendants plead guilty. Of the remaining few who fight in court, nearly nine of 10 are convicted, according to national statistics.
[…]
“The odds are pretty stacked against defendants once an indictment is issued; that pretty much seals their fate,” said Mark Allenbaugh, a Huntington Beach, Calif., lawyer and nationally recognized expert on the federal court system. “Once the indictment is issued, conviction is almost guaranteed.”
Between 2000 and 2005, 99 percent of the 435,000 federal criminal defendants prosecuted nationwide were convicted.
I suppose it’s possible that just about everyone ever indicted at the federal level is guilty, but I doubt it. U.S. Attorneys’ offices tend to be better staffed and better funded than local prosecutors’ offices, and certainly have more resources than the average defendant. Couple this with the accompanying trends of the federalization of crime, the criminalization of everthing under the sun, and mandatory minimums, and you get a rather stark explanation for America’s exploding federal prison population.
The article also delves into the troubling role plea bargaining plays in all of this, including what amounts to the de facto punishment defendants often get for insisting on their right to a jury trial:
Former U.S. Attorney Frederick Thieman said defendants shouldn’t face tougher sentences just because they went to trial.
“There’s a ridiculous cost to exercising your constitutional right to go to trial,” Thieman said. “The stakes are too high.”
[U.S. Attorney Mary Beth] Buchanan said defendants always have the right to go to trial.
“If a defendant believes they did not commit the crime as charged, or if they believe the government cannot prove the case beyond a reasonable doubt, then a defendant absolutely has the right to a jury trial,” Buchanan said.
Those who lose shouldn’t expect leniency after the fact, Buchanan said.
“They can’t have it both ways,” she said.
As this heartbreaking report illustrates, it’s often quite a bit more complicated than that. The linked report is admittedly a state prosecution, not a federal one. But it rather aptly illustrates the absurdies arising from from ill-considered “tough on crime” legislation, drug laws, mandatory minimums, and overzealous prosecutors.
Boehner Cites, Promotes Americans’ Anxiety
National Journal’s Hotline has dutifully reprinted House Majority Leader John Boehner’s open letter of encouragement to fellow Republicans as they go into the summer recess. In it, Boehner cites Americans’ ongoing anxiety about a number of issues.
“International threats are also contributing to the anxiety American families feel,” he writes. He continues:
[Terrorists are] bent on destablizing democracies throughout the world. And they are more determined than ever to penetrate our leaking borders and carry out their murderous ambitions against innocent citizens on American soil.
Naturally, Boehner derides Democrats for failing to do security like Republicans do security.
Last year, for example, 152 Democrats voted against the REAL ID Act, which implemented needed driver’s license reforms, making it more difficult for potential terrorists to obtain driver’s licenses or state ID cards, and ensuring that states improve their data security.
Nevermind that false ID was not part of the modus operandi of the 9/11 terrorists. Identification requirements are not very good for tracking or controlling criminals and essentially worthless for stopping suicidal terrorists, but they are very good for tracking and controlling law-abiding citizens.
In Blind Spot: The Secret History of American Counterterrorism, Timothy Naftali frames this kind of letter:
The politics of fear have … prevented a serious national conversation about the true dimensions of the threat. The public has no idea of the tradeoffs between security and freedom. Their elected representatives speak of doing everything necessary to protect them, while each political party argues that it is more likely than the opposition to keep the nation secure.
This perspective turns the Boehner letter into a caricature. Naftali adds, “The American public should be informed that the terrorists cannot win any war against the United States .…”
Ready to Pay More for Longer Lines at the DMV?
The Decatur (Alabama) Daily News reports that a server shut-down froze driver licensing operations on Friday.
Lines that tend to be long on the best days meandered double-file through hallways at the Morgan County Courthouse after a computer server in Montgomery shut down at about 12:45 p.m. The faulty server, which came back online at 3, is owned and maintained by Oregon-based Digimarc Co., a state contractor, according to [the Alabama Department of Public Safety].
Digimarc is one of several companies that are in the business of licensing and regulating driving. Another cited in the story is AAMVA, the American Association of Motor Vehicle Administrators, which operates a variety of driver surveillance programs under the AAMVAnet brand.
AAMVAnet is the conduit most states use to access various databases involved in driver license applications and renewals. Alabama uses the service for commercial driver license information, problem-driver point systems and Social Security number verification.
AAMVA is particularly interesting because it styles itself as a neutral interlocutor on motor vehicle administration, police traffic services and highway safety. But according to its non-profit disclosure form, its $30 million in 2003 revenue was comprised of $11 million in government grants and more than $14 million from “contracts/user fees” — most of it likely from operation of the Commercial Driver License Information System.
Anyone who understands the role of self-interest in guiding organizations — even ‘non-profits’ like AAMVA — must recognize that this is an advocate for increased driver regulation and surveillance, most recently through the REAL ID Act’s national identification card. If REAL ID is implemented, AAMVA stands to increase its revenue ten times over.
Department of Public Safety spokeswoman Martha Earnhardt told the Decatur Daily News, “As more and more states go through AAMVAnet, it hasn’t been able to handle the volume.” But AAMVA intends to move you into the national ID program — long lines or not — using your state and federal tax dollars.
More on AAMVA and the REAL ID Act can be found in my book Identity Crisis: How Identification is Overused and Misuderstood.