The National Governors Association (NGA) last week reported that implementing the controversial changes mandated by Congress in last year’s REAL ID Act would cost states more than $11 billion over the next five years

In a detailed report NGA, the National Conference of State Legislatures and the American Association of Motor Vehicle Administrators itemize the costs associated with reissuing more secure, standardized drivers’ licenses to more than 245 million people. In addition to the monetary costs, the report finds that implementing those changes would more than double the amount of time that most citizens devote to obtaining identification documents.

We’ve been saying for years that REAL ID raises significant privacy concerns, but before we even address them, it may be worth asking whether the program itself is worthwhile, in light of the daunting costs associated with implementing it.

If the REAL ID Act had been introduced through regular order in the Senate, rather than passed in the Iraq War spending bill, many of these issues may have been addressed or at least the negotiated rulemaking procedure that was part of the Intelligence Reform bill would have been allowed to proceed.

One thing is clear: even fully implemented Real ID will not solve all of the privacy and security problems plaguing state DMVs. Our 2004 report on the topic offers a sobering look at the privacy challenges facing state DMVs.

States should be urged to secure their drivers license systems against fraud and identity theft. It would also be worthwhile to create a security index that rates states according to their incidence of fraud causing the politicians involved to have to defend their record against their peers.

It’s a nice change of pace to talk about a good piece of legislation coming out of the Senate Judiciary Committee. Last week the panel approved the Open Government Act, a bill which strengthens and makes a number of key improvements to the Freedom of Information Act (FOIA).

As we said last year in a letter to bill sponsors John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) applauding the measure, the public has a right to know what the government is doing on its behalf, and FOIA is a vital tool toward that end. The Open Government Act closes many of the loopholes left open by FOIA, and rightly takes advantage of the power of the Internet to disseminate public information.

Another welcome aspect of the measure is that it requires government agencies to respond in a timelier manner to requests made under the Freedom of Information Act. Under the bill, agencies would be required to provide information within 20 days of receiving a FOIA request or be subject to penalties.

The one catch? Timing. While we applaud the Judiciary Committee for passing the bill, it is going to be tough to get it all the way to the President’s desk in the busy days before lawmakers head home in the run-up to the midterm elections.

We wish we could offer you some good news on the warrantless wiretapping front, but everything we hear seems to get grimmer. Below is the text of a press release we sent out today regarding the latest developments in support of the dangerous Cheney-Specter proposal.
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CDT Calls Changes to Senate Wiretapping Bill “Meaningless”

Three Senators today indicated that they would support Senator Arlen Specter’s (R-Pa.) warrantless wiretapping bill in response to changes made to the legislation since it was first introduced.

The announcement represents the latest of many attempts by bill supporters to paint wiretapping legislation as some sort of compromise. This is simply not the case. The changes to the Specter Bill cited by Senators Larry Craig (R-Idaho), John Sununu (R-N.H.) and Lisa Murkowski (R-Alaska) are meaningless. The version of the bill introduced by Majority Leader Bill Frist (R-Tenn.) would be just as disastrous — from both a national security and a privacy standpoint — as previous iterations, Center for Democracy & Technology Policy Director Jim Dempsey said today.

“This bill hasn’t changed for the better since Senator Specter and Vice President Dick Cheney unveiled it earlier this year. The provisions that threaten to undermine our privacy and erode — rather than strengthen — our national security remain very much intact. Although we are eager for Congress to do something to limit this administration’s program of illegal, warrantless wiretapping, this bill is not the answer. Indeed, it would be better for Congress to do nothing than to pass this measure, which not only validates the administration’s program, but also grants sweeping new powers to all future Presidents,” Dempsey said.

The Senators specifically cited the deletion of language they said raised questions about the roles Congress and the Executive Branch play in regulating surveillance activity within the United States.

The deleted language was meaningless. The current version of the bill still repeals the exclusivity provision contained in the Foreign Intelligence Surveillance Act (FISA), thereby rendering FISA’s judicial review provisions optional. The amended bill will still encourage the President to proceed with electronic surveillance of US citizens without judicial approval.

The Senators also cited language they say clarifies the scope of the Foreign Intelligence Surveillance Court’s authority to review and approve, not only electronic surveillance programs, but also surveillance of specific individuals identified by an approved electronic surveillance program. Under this provision, supporters say, once an electronic surveillance program has identified an individual of interest, further FISC approval is needed to ensure that an individual’s Fourth Amendment rights are not violated.

This is misleading. First, it must be made very clear that under the Cheney-Specter proposal, there would no longer be any “must” under FISA. Under Chairman Specter’s proposal, all of FISA’s requirements become voluntary, including the section on programmatic warrants. Secondly, the language regarding an individual order only applies if the individual meets the standards for a regular FISA order — that is, if there is probable cause to believe that the specific person is a terrorist. If the person is not suspected of engaging in terrorism or espionage or otherwise being an agent of a foreign power, then he doesn’t “satisfy the criteria for an application under section 104 for an order” and surveillance can continue without a warrant. That is illogical, of course (known bad actors gets the benefit of court proceedings, while surveillance of innocent people can continue without a warrant), but that is what happens when you tinker with a complex statute like this.

For those who don’t know, today is the first annual One Web Day — a day in which people around the globe are encouraged to celebrate the World Wide Web and what it means to them.

One Web Day is the brainchild of Cardozo Law Professor, and CDT Policy Fellow Susan Crawford, one of our oldest and closest allies in the technology policy sphere.

It’s difficult to put into words what the Web means for CDT. We were founded more than ten years ago to defend the Web and the other tools that were reshaping the nature of communications against regulations that would have stifled the Web’s emergence as a fundamentally democratizing global medium.

One Web Day organizers carried off an impressive array of live events around the world, from Bulgaria to California to Tokyo. Check here for a full list.

One Web Day is September 22, every year. We’re looking forward to many more happy returns.

The President’s task force on identity theft his week urged the White House Office of Management and Budget to issue official guidance to federal agencies on how to respond when they lose citizens’ personal information in data breaches. We couldn’t agree more. It’s a simple, almost obvious step, but one that’s long overdue.

While none of the guidance included in the task force’s interim recommendations will halt the epidemic of identity theft, the document contains thoughtful recommendations that could — if properly implemented — help lessen the impact of privacy crimes on citizens.

ID theft is a huge threat and one that will require the strenuous efforts of law enforcement at the federal, state and local level to bring under control. The task force report offers an important reassurance that the federal government is treating this problem with the gravity it deserves.

The Senate Judiciary Committee this week reported several bills addressing the president’s warrantless wiretapping program. Two of these bills would radically expand the President’s authority to conduct warrantless surveillance inside the United States and the other would establish a system of focused surveillance that would be effective in fighting terrorism without casting aside the rights of ordinary Americans. The Senate is likely to take these bills up as early as next week and the House Judiciary and Intelligence Committees are likely to consider similar legislation next week.

The Bad Bills

Chairman Specter’s bill (S. 2543), which was radically altered by the White House, would ratify and dramatically expand President Bush’s program of wiretapping the communications of American citizens without judicial approval. Senator DeWine’s bill (S. 2455) would authorize programs of warrantless surveillance inside the United States under a lower standard than the “probable cause” standard required by the Fourth Amendment and would eliminate prior judicial review and individualized warrants, leaving only after-the-fact congressional oversight by a small subcommittee of the congressional intelligence committees.

Although Chairman Specter claims his bill would ensure judicial review of the President’s warrantless wiretapping, it would actually make meaningful judicial review of the program more difficult. Numerous cases challenging the President’s program are already pending in federal courts around the country. Chairman Specter’s bill would actually allow the Administration to have all of these cases transferred to the FISA Court of Review, where proceedings are conducted, and evidence is received in secret. If Chairman Specter really wants judicial review of the President’s warrantless wiretapping, he should allow these cases to continue and throw his support behind a different bill that he co-sponsored with Senator Feinstein.

The Good Bill

CDT supports the Specter-Feinstein bill (S. 3001), which was the only bill reported out of Committee with bipartisan support. Unlike the Specter and DeWine bills, the Specter-Feinstein bill restores the constitutional balance of power and is narrowly focused on the issues the Administration said caused it to circumvent FISA — namely, the need for more resources, greater speed in approving FISA applications, more flexibility to begin wiretapping in an emergency, and clarity that a warrant is not required for the interception of foreign-to-foreign communications.

The Specter and DeWine bills are bad for civil liberties and for national security. They violate the Fourth Amendment and would therefore jeopardize the prosecution of the very terrorists we are trying to fight by making any evidence obtained under these laws vulnerable to constitutional challenge.

Members of Congress who have been briefed in secret on the President’s program — including Senator Feinstein — have said that it could be conducted with judicial review. But these bills would authorize much broader surveillance without court approval. Senators should oppose the Specter and DeWine bills and support the Specter-Feinstein bill, which protects our privacy as well ass our national security.

We’re keeping a running list of the (mostly) bad news surrounding the NSA program here.

In a big victory for open government, the Senate unanimously passed the Federal Funding Accountability and Transparency Act (S. 2590), which would significantly increase the transparency and disclosure of federal spending information.

The bill, sponsored by Senators Tom Coburn (R-Okla.) and Barack Obama (D-Ill.), would direct the Office of Management and Budget to create a publicly-available Web site that would list every entity receiving federal financial assistance, such as grants or contracts, and the totals awarded for each fiscal year.

The bill faced some opposition, but a strong left-right coalition led by OMB Watch and the National Taxpayers Union — and hard work by the bill’s sponsors eventually convinced leadership to bring the measure to the floor where it passed easily. CDT hopes that this coalition can stay together and put pressure on the House to resist calls to weaken this legislation, and instead approve the exact Senate language.

As we all know, we’re entering the end-of-Congress “silly season” during which time scoring rhetorical and political points takes precedence over reason and deliberation; and our transparent, open legislative process often gives way to stealth lawmaking and backroom deals.

This election year, with control of Congress hanging in the balance, the range of troubling and outright dangerous bills that could be shoehorned through the process is daunting. We’ve identified nine serious legislative efforts that could have long-lasting negative impact if passed.

To highlight the dangers posed by these efforts, CDT today released its “Internet Watch List. ” For us, the list is a tool to talk to lawmakers, journalists and the public about the some of the bills we’re particularly worried could make their way into law in the waning days of Congress. We hope you find it useful as well in your work to defend the Internet, privacy protections and civil liberties from these daunting threats.

Earlier today, we launched NetDemocracyGuide.org, a tool intended to help bloggers and Internet political activists easily understand the good news contained in the new Federal Election Commission (FEC) rules for the Internet. A year and a half ago, the announcement of that rulemaking ignited a firestorm of opposition among bloggers, political activists and free speech advocates, who feared that imposing complex and burdensome rules to the Internet would chill the political activities of ordinary Americans. The signs were ominous. A draft of the proposed rule leaked to bloggers appeared to confirm the worst. But less than a year later, the FEC announced an unusually flexible and thoughtful rule that leaves the vast majority of citizen initiated political activity on the Internet unregulated. The fact is unless you are paying for advertisements on third party sites, you probably don’t have to worry about campaign finance rules at all.

Simply put, the Internet won and did so because of the extraordinary efforts of thousands of bloggers, activists and experts who joined with organizations like CDT to sound the alarm and educate the FEC, Congress, the mainstream media and the public about how the Internet is bringing down the barriers posed by money in politics, revitalizing democratic discourse and giving citizens the power to be journalists, commentators, organizers and political leaders. The new CDT guide is our way of thanking you all, publicizing this victory, encouraging more of you to join the online revolution this election season and helping you to plan your activities.

As readers of this blog well know, we are facing many other challenges to free speech online including bills like the Deleting Online Predators Act (aptly pronounced dope-ah), which would ban chat, social networking and probably blogging in schools and libraries and a number of bills (already buried in must-pass appropriations bills) that would require warning labels on “sexually explicit” Internet content. We need the Internet community respond to these attacks on Internet freedom with the same fervor and skill with which it took on the FEC rules.

Late last week the Washington Post ran a story describing how investigators hired by Hewlett-Packard obtained private phone records of nine journalists without their consent. The investigators used “pretexting” — a fancy term for pretending to be someone else — in order to gain access to the records.

This controversy is yet another example of why consumers need comprehensive privacy laws to safeguard their personal information. While this may be what you expect to hear from CDT, we seem to have support in this belief from an unexpected place: Viet Dinh, former assistant U.S. attorney general and chief architect of the USA PATRIOT Act. Dinh, who represents a Hewlett-Packard board member, stated in the Post article that the HP controversy “highlights in a very dramatic manner a pervasive problem with respect to the illegal access and trading of personal records.” Although we’ve disagreed with some of Dinh’s positions regarding aspects of PATRIOT, we were pleasantly surprised that he too is concerned the widespread privacy abuses made possible by our lax consumer privacy standards.

Let’s hope that Congress will wake up to the fact that comprehensive consumer privacy laws are necessary before we hear about another HP-like scandal.