Skating on Stilts

You say obsessive, and I say ... well, okay, obsessive

I’ve been keeping track of my jogging mileage since the early 1990s, when a return to running coincided with the purchase of a computer that ran spreadsheets. So I can report with a mixture of pride and embarrassment that, some time this spring, I will have recorded enough miles to circumnavigate the earth.  That’s approximately 24,859 miles by way of the poles, and I am closing in on 24,750.  (If I had gone around the equator instead of the poles, it would have been warmer but longer -- 24,901 miles – and I’m feeling lazy.) 

The nice thing about taking the polar route is that I can pick a destination in the United States to begin and end the trip.  I chose Mt. Diablo in Northern California, because I’ve been there and it has a meridian marker that is used all over Northern California.  Indeed, my trip started in 1993 with a notional jog south along Meridian Avenue in San Jose and a dive into the sea at Carmel.  After that, apart from Antartica, I didn’t touch dry land until I hit Oman, Iran, and the ‘stans.

Now, nearly twenty years later, I’ve been slowly working my way south from Seattle to Mt. Shasta;  By my calculation, I have just picked up the first Meridian Road since 1993 -- outside Chico.  In the next few weeks, I’ll pass through Meridian, California, and then, in the last week or two, I’ll take another Meridian Road through Elmira and on to the runway at Travis Air Force Base.  Finally, I’ll cross the Sacramento River near Pittsburg, head through Clayton, and slowly mount the slopes of Mt. Diablo. 

If only I’d planned better, that last part would be downhill, but it’s still good to be back!

European Governments Screw Up; US To Suffer Consequences

That seems to be the theme of this article from the ever-predictable Der Spiegel, which recites a bunch of alleged failures by the German government in implementing the SWIFT data agreement, then raises the prospect of suspending the agreement, thereby cutting off US access to some financial data and making the world safer for funders of terrorism. 

Rethinking Privacy at the Airport

I testified yesterday at a government oversight hearing on TSA.  It was a through-the-looking-glass experience for anyone whose memory extends back to, well, 2007.  That’s because the Republican members mostly lined up to bash whole body imagers and talk about privacy while the Democrats mostly spoke about the importance of air passenger security.  Government Oversight chairman Issa and subcommittee chairman Chaffetz were particularly vocal in scorning TSA’s current approach. This is reminiscent of the “big switch” on privacy in the late Clinton years, when Republicans began attacking the Clinton administration on civil liberties grounds.

When your party doesn’t control the Executive, the playbook says you should attack the administration on almost any basis.  So the switch isn’t a complete surprise.  But attacks like this have consequences, and the most obvious consequence of a successful campaign against TSA will be more reliance on metal detectors, which have no hope of catching any of the bombs al Qaeda has used since 9/11.

Still, there are things TSA could do to improve security and passenger dignity, and they got some attention yesterday.  TSA should spend more time looking for terrorists, and less looking for weapons.  But to do that, TSA needs to know something about the passengers it’s screening, and in the last spasm of two-minute hate for TSA, back in 2003, Congress restricted the agency’s access to passenger data. 

Luckily, it looks as though the stars are lining up to rethink that restriction.  We could see a TSA “known traveler” program in which passengers can volunteer more information in exchange for streamlined screening, something I supported at the hearing:

Imagine you are among the majority who don’t see what the fuss over travel data is about.  You authorize TSA to access data about you – travel data,say, and perhaps criminal or other records.  When you show up for your flight, your boarding pass has already been coded to show that you’re entitled to use the trusted traveler lane.  Good thing, too, because that line is much shorter.  The TSA official checks your ID and boarding pass as usual, but he waves you into a fast lane, where the most aggravating and time-consuming security procedures have been eliminated – the liquids and laptop inspections, perhaps the shoe inspection too.  No wonder the trusted traveler line is shorter; it is moving twice as fast.  Every once in a while, though, scanning the boarding pass sets off a beep, and the officer waves you into a standard line for the usual drill.  This is a random event, programmed into the system in advance based on all the data that TSA has.  The line is still a lot faster, because only a few of the trusted travelers end up in the standard inspection, but that random event makes it difficult for terrorists to game the trusted traveler program. The upshot would be faster inspections, less hassle, and more security.  More privacy too, for those who think that giving up a little information is a fair trade for fewer scans and patdowns.

Secretary Ridge helped lead a private group that recommended a similar solution yesterday.  And TSA head Pistole is also thinking along similar lines. Here’s what he said in an ABA talk recently:

We want to focus our limited resources on higher-risk passengers, while speeding and enhancing the passenger experience at the airport.

I believe what we’re working on will provide better security by more effectively deploying our resources, while also improving passengers’ travel experiences by potentially streamlining the screening experience for many people.

There are lots of risks in such a program, so the details matter, but if the flap over scanners and patdowns produces a smarter approach to travel data, maybe we’ll end up safer and less prodded at the airport. 

E-Verify in trouble in the Supreme Court?

I finally had time to listen to the oral argument in this year’s Supreme Court challenge to an Arizona immigration law.  I’ve noted before – here and here -- my view that the Solicitor General was badly wrong on policy and professional grounds when he used that case to attack the e-Verify program. 

The e-Verify program, which electronically checks to make sure a newly hired employee's job applicant’s name matches his social security number, is one of the few interior immigration enforcement measures that works, does so humanely, and has significant bipartisan support.  The current Secretary of DHS, Janet Napolitano, endorsed the computer system when she was governor of Arizona and again as Secretary.  But she couldn't keep the Justice Department from throwing e-Verify under the bus; in a telling triumph of lawyer over client, DOJ set aside its past litigating positions and declared that Arizona had no authority to mandate the use of e-Verify by Arizona businesses.

I expected a tight vote on the Court.  I still do, but it looks as though e-Verify will do worse than the rest of Arizona’s law, which may squeak through.  That will be played as a symbolic victory for the right, because it allows states some role in enforcing immigration law.  But it likely will be more symbolic than practical, because the part of Arizona’s law that may survive simply says that businesses can lose their state business licenses if they knowingly hire illegal workers. 

That sounds tough, but as a practical matter, proving that a business knowingly hired illegal workers is very hard to do, even for ICE; state officials will have a much harder time making such cases, and business litigators will cut them to ribbons in the courts, claiming that they misapplied complex federal immigration law.  Will such a remote threat deter illegal hiring?  Maybe a little, but businesses that knowingly hire illegal workers are already at risk of federal criminal prosecution.  It is a vanishingly small risk in this administration, but the risk of losing a license won’t be much bigger in Arizona if the law is upheld.

Requiring all businesses in Arizona to use E-Verify, in contrast, does have an important practical impact.  Tens of thousands of Arizona employers now check to make sure that job applicants have names that match their social security numbers.  Since fake names and fake social security numbers are the simplest way to beat the current immigration employment system, taking that option off the table makes it harder to get work illegally.  And Arizona has taken that option off the table more thoroughly than most states with a mandate that has  boosted e-Verify usage substantially. Losing the state mandate will really set enforcement back.

So why do I think the Court will split the baby, giving conservatives a symbolic victory but not a practical one?  Because the oral argument featured a classic Kennedy-in-the-middle exchange.  Justice Scalia, Justice Alito, and the Chief Justice all expressed some sympathy for the anti-preemption forces.  Justice Breyer, Justice Ginsburg, and Justice Sotomayor all seem to support preemption (though Justice Sotomayor did so only on very particular grounds).  Justice Kennedy seemed to telegraph his views throughout the argument, and they were split.  He was waveringly sympathetic to the state licensing requirement, but he had no sympathy at all for the state’s e-Verify mandate.  Here’s what he said to the state's lawyer:

JUSTICE KENNEDY:  But you are taking the mechanism that Congress said will be a pilot program that is optional, and you are making it mandatory.  It seems to me that's almost a classic example of a State doing something that is inconsistent with the Federal requirement.

OK, in theory, Justices' questions don't tell you how they're going to vote.  But that question doesn't leave much doubt about where Justice Kennedy will come out, at least on e-Verify. To complete the vote count: Justice Thomas didn’t ask any questions, but I think it’s safe to assume he’s closer to the conservatives on this issue than to the liberals. And Justice Kagan is recused.

So it only takes four votes for e-Verify to survive, because the court below upheld the state law. And there seem to be four votes for Arizona without Justice Kennedy.  In theory, Justice Kennedy could have voted against Arizona across the board, leading to affirmance by an evenly divided court.  But if that were going to happen, it should have been announced right after the vote. I’m guessing that Justice Kennedy did what his questions foreshadowed -- cast the fifth vote in favor of Arizon’s licensing provision while splitting the Court 4-4 on e-Verify.

If I’m right, e-Verify has no future in the courts.  Justice Kagan won’t be recused the next time around, and I am confident she’ll vote to kill any state e-Verify mandate.  Indeed, the lower courts are likely to read the tea leaves and knock the mandate over the head without requiring a second round in Washington.

The good news is that a 4-4 decision should make clear to Congress that only further legislation will preserve the states’ authority to mandate e-Verify use.  And one can hope that Secretary Napolitano will have more influence over the administration’s legislative strategy than she had over the Solicitor General.

UPDATE: Correction to description of program

Has the RIAA finally found a successful digital business model?

Last year, computer security researchers succeeded in hacking automotive systems.  Once they had done so, they could kill the engine, lock the doors, and turn off the brakes while the car was moving down the highway.  The attacks worked best, not surprisingly, when the researchers had been able to plug into the car’s onboard computers.  This year, the same team went looking for more creative ways to get access to cars' onboard systems.  The most innovative of their successes came from altering the code on a music CD.  The additional signals modified the stereo system’s firmware, giving the researchers access to the car's computer network.

It will be a while before your CDs turn on you, but the researchers seem confident that their malware can be surreptitiously added to mp3 files distributed on peer-to-peer networks.  They envision a whole new style of auto theft, in which thieves “could instruct cars to unlock their doors and report their GPS coordinates and Vehicle Identification Numbers to a central server.”

Which brings us to the RIAA.  Considering the clout they’ve already demonstrated on Capitol Hill, it may just be a matter of time before the industry persuades Senator Leahy to introduce the “Steal Our Music, We Steal Your Car” Act of 2011, authorizing copyright owners to introduce car-hacking code into Limewire and Bittorrent networks and then take possession of the music thieves' vehicles.  No doubt, they can produce studies showing that the act would create thousands of exciting auto repo jobs, and a tie-in with CarMax would help share the lobbying burden.

OK, I’m kidding.  But I am looking forward to a bitter CFIUS debate when the Chinese try to buy XM/Sirius.

Hike the Appalachian Trail in Five Minutes

That pretty much sums up “The Green Tunnel,” a fun summary of a six-month journey, south to north on the trail.  I’m pleased to have recognized some parts of the trail in New Hampshire and the Mahoosucs.

Karin Calvo-Goller Redux

A welcome sign of sanity from France:

A French court has dismissed a criminal-libel charge brought against a journal editor over a negative book review and ordered the plaintiff to pay punitive damages. The editor, Joseph H.H. Weiler, a professor at New York University's School of Law, said he had been awarded €8,000 (about $11,000) as a result of the action brought against him by Karin N. Calvo-Goller, a senior lecturer at the Academic Center of Law & Business, in Israel.

$11,000 won’t cover a lot of legal fees, but the judgment is a rebuke to Ms. Calvo-Goller and will likely discourage libel tourism in France.