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Privacy-Crushing FEPA Bill #HR4174: 10 Nitty Gritty Facts You Missed #VETO !   1 comment

 

History itself must be holding its breath to see what happens next.  H.R. 4174, Foundations of Evidence-Based Policy, a bad bill for liberty and privacy, awaits President Trump’s signature –or his veto.

I’m not a lawyer, and I’m not a data expert.  I’m pretty good with reading, though.

In reading, I noticed:

  1. The bill creates an inventory of citizens, their land, and their money. It includes indentifiable info (pii).
  2. It is actively hostile toward, and seeks to alter, policies and laws that uphold privacy rights.
  3. The bill allows the federal government to collect, archive and share personally identifiable information.
  4. The bill authorizes government to break confidentiality pledges and punish citizens based on the perceived accuracy of data citizens submit.
  5. The bill actively seeks to “convert” databases that don’t match its machine-interoperability standards. 
  6. An agent who shared/sold sensitive information from these databases might receive zero punishment.
  7. The bill forces agencies and instrumentalities to share data with other agencies.
  8. The bill empowers the Deep State, not allowing elections for data heads. Bureaucratic appointees only. 
  9. The bill authorizes federal agents to use private organizations and individuals to mine data.
  10. The bill replaces informed consent with (pointless) informed public comment.

Below this video is a detailed, language-focused, page-specific, quote-laden excavation of the bill.  It is more detailed than the video.

 

 

 

  • FACT #1: The bill creates an inventory of citizens, their land, and their money.  

The new, federal “comprehensive data inventory” will feed into a “federal data catalog” and it’s “statistical” data includes the whole, or relevant groups, or components within, the economy, society, or the natural environment” (page 17).  What else IS there on earth, that isn’t covered under people, money, and nature itself?

An interesting spot to detect this in action is on page 19, where an exception is granted to the Energy Information Administration:  “Data or information acquired by the Energy Information Administration under a pledge of confidentiality…shall not be disclosed in identifiable form” –meaning, obviously, that data acquired by agencies other than EIA –even under a pledge of confidentiality– CAN be disclosed in identifiable form!

  • FACT #2:  It is actively hostile to laws that uphold individual or local privacy rights.

The bill does not clearly forbid ANY type of data sharing, nor does it forbid anyone from at least requesting sensitive data access– and the bill treats privacy statues or policies as obstacles.

See page 2: “evidence-building plan… shall contain… a list of any challenges to developing evidence… including any statutory or other restrictions“. See page 22: “… Statutory constraints limit the ability of these agencies to share data...”  So state privacy laws are limiting the federal ability to share data?  This reminds me of The Princess Bride movie. It’s Prince Humperdink (this bill) trying to steal Princess Buttercup (students’ data) from Vizzini (state SLDS databases) “You’re trying to kidnap what I’ve rightfully stolen.”

And (not in the bill, but in the bill’s fact sheet and in the CEP’s report to Congress) we learn, shockingly, that the CEP views America’s privacy-protecting “student unit record” ban as “one potential ban that Congress may want to revisit“.

In the bill, neither the term nor the concept of “privacy rights” is ever mentioned.  Agencies are advised that the motivation for letting the public think agencies honor “pledges of  confidentiality” is that not doing so will affect data quality: “Declining trust of the public in the protection of information provided under a pledge of confidentiality… adversely affects both the accuracy and completeness of statistical analyses.”

 

  • FACT #3:  The bill allows the federal government to collect and archive and share personally identifiable information.

The bill redefines many terms so that the words don’t really work the way you might think that word would work.  This reminds me of The Princess Bride, too.

The bill doesn’t overtly lie, so much as it assumes you don’t know what it’s talking about, or that you won’t notice its fancy footwork.

The bill defines a “nonstatistical purpose” as “affecting the rights, privileges or benefits of a particular identifiable respondent“.  In contrast, the bill defines “statistical purpose” as “analysis…without identifying the individuals”.   However it’s not actually a contrast: in addition to “statistical purpose” it also defines “statistical ACTIVITIES” –as “components within the economy, society or the natural environment”. Notice that since statistical activities can be a “component within” society, it can be information about one person. which sure sounds like individuals are included. So both nonstatistical purposes and statistical activities in this bill do include personal information.

Also, the bill defines “evidence” as:“information produced as a result of statistical activities conducted for a statistical purpose.”  Note that the word “information” is adjective-free.  It didn’t say that evidence is only aggregated data, statistical-purposed data.  It’s anything-goes, collected information, collected while aiming to find statistical-purpose data.  So if, in the process of developing methods or resources (or anything, anything– they also mention sampling frames and models and other activities)  the researcher or bureaucrat happen sto stumble upon some unrelated information, well, that’s evidence. Evidence is any information gotten as a result of activities about “components” within society, or the economy, or nature.

  • FACT #4:  The bill authorizes the government to punish citizens based on the accuracy level of the data they submit.

The bill reveals that its agents plan to break confidentiality when citizens or organizations are accused of submitting false information (whatever that really means).  Such citizens will be punished in two ways: first, government pledges of confidentiality will be broken and the person or organization’s identifiable information will be used; second, the person or organization will be prosecuted by law enforcement. Page 20 says, “information collected…under a pledge of confidentiality may be provided…to a law enforcement agency for the prosecution of submissions… of false statistical information under statutes that authorize criminal penalties or civil penalties”. 

Who gets to define “false”?  Who will determine whether the information was really false?  Who ensures that information was really submitted by the very person being punished?  How does the government return confidentiality to the person if the accusation proves to be mistaken?

  • FACT #5: The bill actively seeks to “convert” databases that don’t match its machine-interoperability standards. 

Under “Guidance to make data open by default” (page 7)  Agencies are advised to convert data that are not machine-readable:  “ensure that any public data asset of the agency is machine-readable“.  Everything is to flow interoperably toward the three main designated agencies:  The Bureau of the Census, The Bureau of Labor, and The Bureau of Economic Analysis.  Those three form the new federal database.  (P.S. The Labor and Education Departments are poised to merge.)

It’s interesting to note that in the case of public education, states gullibly accepted the millions of “free”  federal grant dollars for their databases  when common data standards and common core came knocking.  Interoperability mandates of fed-paid, state databases set us up for this bad moment, when easily, the feds can now take what states should never have collected/shared beyond the walls of the school itself. That money came conditionally: the grant language said that state databases had to be nationally interoperable.  Agencies other than state school systems that don’t already have matching data standards will see this bill’s implementers try to convert them. (Don’t do it.)

  • FACT #6:  An agent who shared or sold sensitive information from these databases might receive zero punishment.

There is a little loophole under “Fines and Penalties”.  A person who deliberately shares or sells information could either get a punishment, or NO punishment.  On page 21, it says that an agent or employee who “willfully discloses the information in any manner to a person or agency not entitled to receive it, shall be guilty of a class E felony and imprisoned for NOT MORE THAN 5 years, or fined NOT MORE THAN $250,000, or both.”

Not more than five years could mean one day, or no days.  Not more than $250,000 could mean a penny, or nothing at all.   

  • FACT #7:  The bill forces agencies and instrumentalities to share data with other agencies.

Page 26 says, “Presumption of accessibility for statistical agencies and units:  …the head of an agency shall… make any data asset maintained by the agency available upon request to any statistical agency or unit“.  (P.S. “unit” is one, as in one department or one person.)

And when privacy is spoken of, it’s in suggestion-mode:  that agencies  “take into account” the “risks and restrictions related to the disclosure of personally identifiable information” and “take into account” any “security considerations“.  There’s a stark contrast from the bill’s forceful “shall” language concerning data mining.  “Shall” is used 116 times in the 29 page bill, but never regarding the protection of privacy rights.   Instead of what should have been written– something like “agencies shall not disclose personally identifiable information” the bill’s creators just asks agents to “take into account risks and restrictions“.  That’s a toothless and blind defense.  Over and over the bill gives “shall” mandates about data inventory like the one on page 10, which says that every agency head “shall to the maximum extent practicable, develop and maintain a comprehensive data inventory”.

  • FACT #8  The bill empowers the Deep State.  It weakens representation– our Constitutional right to representative governance.

The bill mandates that the top dogs in every one of the innumerable agencies must be be appointed  (page 3)  from among agencies’ “existing employees” (page 29) –meaning Deep State loyal bureaucrats, untouchable by any vote.  Additional authorized agents are defined as anyone with a pulse: consultants, contractors, employees of contractors, even self-employed researchers (page 16).

Because the bill redefines the word “agency” to mean “executive agency” –which means it includes not only the long list of household-knowledge executive agencies (like Department of Transportation, Department of Defense, Department of Homeland Security, etc.) but also all the departments and all instrumentalities of each federal agency– the bill uses and empowers the deep, unelected bureaucracy known as the “Deep State”.

  • FACT #9:  The bill authorizes the federal agents to use private organizations and individuals to help mine data.

On page 5, agencies are told to work on “interagency and private sector coordination”.  On page 9, the bill asks agents to “engage the public and calls for “hosting challenges, competitions, events or other initiatives designed to create additional value from public data assets”.

  • FACT #10:  The bill replaces informed consent with (pointless) informed public comment.

On page 24, it says: “Whenever a written agreement concerns data that respondents were required by law to report and the respondents were not informed that the data could be shared... the terms of such agreement shall be described in a public notice… a minimum of 60 days for public comment.”  Notice that there is no consequence or change that can happen due to the public comment; no mention of the data after comment time NOT being shared.

Now, let’s just reason together about this bill, and its facts.

The title is its own clue:  Foundations of Evidence-Based Policymaking.  The bill is a punch in the gut to privacy and representative governance.  Evidence holders (bureaucrat councils) become the new policymakers. Where does evidence-based policymaking put power?  In the hands of whoever holds the evidence– not with We, the People.  Think about it:  policymaking will be done by those who hold the evidence, not by those from whom evidence has been collected.  Citizens are demoted to being data, and decisions will be made by those unelected policymakers who frame and interpret that data.  And this is a foundational bill;  more of the same is coming.

Do the “algebra” inside the bill.  (You have to solve for X, excavating definitions and then inserting them where the word surfaces).  Doing so shows the word-gaming going on to hide the power grab of this bill, with power going away from individuals and into the hands of a huge new system, not managed by the elected representatives.

If you’ve skimmed the bill, you might be thinking:  “The bill does include one privacy officer in the 23 officer federal board that will run the nationwide system, and it does mention privacy and confidentiality.”

Friends, it’s a game of words.

Only a fool would believe lip service about privacy that tinsels a bill, while it mandates so much authority and access to data for agents and agencies.  Please remember three things:

  • There is information that MUST stay secret, for reasons of national security and for individual Constitutional privacy rights.
  • If this bill were legitimate, such information would not only be clearly forbidden from being shared, but also nobody would be given power to share that information, ever.
  • This bill does not clearly forbid sharing of identifiable information, and, for certain agencies and agents, power exists to share it.

A person cannot serve opposing masters (Matthew 6:24) and a bill’s purposes cannot be traveling in two opposite directions at the same time.  This bill wants you to believe that a bird can simultaneously fly north and south.  While the “pledge of confidentiality” words pull one way, the data-sucking mandates of the bill pull the other way. The data-sharing “shall” mandates in this bill prevail, especially since the privacy-mentioning lines are weak and loop-hole-y.

The bill is grievous– indefensible.  The bill’s promoters are (whether they know it or not) real enemies to liberty. They (the CEP) deliberately  hid the truth from the public about this bill, and have done so for two years.   

They are obsessed with gathering data –at any cost.

The obsession may stem from sincere intentions about how data collecting might help society, but look at the cost.  It’s federal creation of a system (using pre-existing local databases) to create one river of citizens’ data– all mined by mandate, without informed consent of the individuals being data-mined.  We, the People under this bill’s full implementation will soon become prisoners of intimidation, cowering under lockstep policymaking, instead of directing our own government.

Data is not the enemy.  Data can be used for good or ill.  But individual rights will always matter more than efficiency.

As Jane Robbins pointed out to Congress:  “The problem arises when the subjects of the research and analysis are human beings [with rights!]  … The analyses contemplated by the commission go further than merely sharing discrete data points… they involve creating new information about individuals via matching data, drawing conclusions, and making predictions about those individuals, so in essence, the government would have information about a citizen even he or she doesn’t have.

Last year, I called Trey Gowdy’s office and talked with a staffer there, trying to understand why this patriot would promote the FEPA bill.  The staffer said that because veterans are suffering, due to corruption in their hospital systems and other systems, Trey Gowdy wanted to support them with more accountability by federal agencies to Congress.  The problem with this angle is that Congress is just one more entity that has to request access to all this federal data.  Creating this huge data mining system is not going to solve all the problems of corruption and mismanagement, and in the process of trying, it will harm liberty and privacy, or set up a system that can do so!

The moment is now.  What happens next?

If President Trump vetoes this bill, he sides with America’s right to privacy, as he promised he would on the campaign trail.  If he signs the bill into law, he sides with Big Control Via Big Data, as the Chinese government does.

Is that decision really clear to him?

Dear President, and Dear Congress, please take a second look.

 

 

 

 

 

 

 

 

 

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