Law Archives

The Federal Trade Commission is allowing the U.S. Citizenship and Immigration Services arm of the Homeland Security Department access to its secure consumer complaint database so USCIS officials can investigate scammers posing as immigration legal advisers, federal officials announced on Thursday.

Typically only law enforcement officials can search through the FTC's Consumer Sentinel Network, which warehouses tips that customers submit to the Better Business Bureau, National Consumers League and other watchdog organizations.

USCIS, FTC and Justice Department officials announced the new data exchange on Thursday as part of a public awareness campaign to crack down on unauthorized legal assistance providers. Many imposters charge unwitting immigrants for resources the government offers for free, like application forms, or falsely claim they can expedite the approval process, according to USCIS officials. Some promise to help clients obtain immigration papers for which the applicant is ineligible.

Obama administration officials have been stressing the White House's commitment to immigration enforcement, as they try to ease the way for comprehensive immigration reform.

USCIS posted several campaign ads on YouTube to educate people on how to avoid immigration scams, but the promos do not encourage reporting deceptive outfits. The ads direct Internet users to the uscis.gov/avoidscams website for more information. A "Report Immigration Scams" tab on the site takes visitors to an interactive Web page where they can notify authorities about suspicious professionals.

Senate Commerce Chairman Jay Rockefeller has postponed a computer security hearing to attend the funeral of Judge M. Blane Michael, a proponent of digital privacy who served as Rockefeller's special counsel during his first term as governor of West Virginia, aides for the senator said on Monday.

Rockefeller, D-W.Va., has not yet announced a new date for the hearing, previously scheduled for Wednesday, which was to examine the economic ramifications of cyber threats in the private sector.

Last year, Michael, who sat on the U.S. Court of Appeals for the Fourth Circuit in Richmond, lectured to students at his alma mater New York University School of Law that the Internet may undermine the Fourth Amendment's search and seizure protections: "The digital age is placing our privacy in jeopardy. Technological advances in the way we communicate and store information make us increasingly vulnerable to intrusive searches and seizures."

The disconnect between analogue-era privacy and communications laws and the evolving, online nature of criminal activity has been the subject of several congressional hearings during the past year. Lawmakers are considering updating civil liberties legislation, such as the 1986 Electronic Communications Privacy Act, as well as establishing new computer crime rules as part of comprehensive cyber legislation.

During his speech, Michael noted that people store their digital files, including love letters, diaries and financial records, on an Internet service provider's remote server, so that they can access their documents from any computer.

"But online storage also raises questions about whether we retain any Fourth Amendment privacy interest in files once we store them remotely because they are then technically accessible to the Internet service provider," he said.

Michael cited a case that involved the government's seizure of Google's email servers, which house millions of people's personal data, just to look for just a few incriminating messages.

"In evaluating whether there is a privacy interest in personal files stored online, the current framework leaves room for considering other sources of interpretation, including the Fourth Amendment's formative history and contemporary norms and circumstances," he said.

On Friday, Rockefeller said in a statement that Michael was unvarnished in his honesty, uncanny in his humor and unequaled in his humility. He called him "a brilliant judge who never took for granted the power and the responsibility of deciding the cases that impacted people's lives or righted serious wrongs.

"I will be forever fortunate to call him my dearest friend and confidant - the kind you just trust to his very core and whose deep, easy companionship abides with you for a lifetime," he said.

Boeing, General Dynamics and the Navy fought over billion-dollar claims involving a failed 1991 stealth fighter aircraft contract on Jan. 18. The contractors claimed that the government withheld information from them, and by invoking the state secrets privilege, prevented them from delivering a satisfactory product. The question is, does throwing around the word "state secrets" unnecessarily politicize a dispute that can be resolved by contract law?

The facts of the case: In 1991, the Defense Department pulled the plug on the inauspicious project to build a stealth fighter, the A-12 Avenger, when it ended up too heavy for aircraft carriers to handle. The plane never took off from blueprint into production. The 20-year-long dispute is a bitter blame game following a disastrous $4.8 billion deal that in truth, just amounted to expensive aircraft blueprints.

The government demanded a refund of $1.35 billion after it cancelled the contract and declared General Dynamics and Boeing in default. The contractors sued, countering that they were owed an additional $1.25 billion for work done that had not yet been billed.

Boeing and General Dynamics said it wasn't their fault that they hadn't delivered what the Navy wanted; the real problem was the abuse of the state secrets privilege. The government withheld sensitive information that would have allowed them to deliver satisfactory results, the contractors claimed. The government countered that this was done to protect national security.

The information that came was "too little and too late to effectively allow the contract to proceed as planned," said attorney Carter Phillips. "The weight specifics that we were being asked to provide or to supply were literally impossible to comply with based on what the government already knew," he said.

His argument sounded almost convincing until he dropped this:

The problem is we don't know precisely what information we didn't have and were never entitled to. So it's very difficult to say how strong is our defense under these circumstances.

That admission reveals that this case is going to be a difficult one to argue. The politically-charged rhetoric around "state secrets" masks what is at the heart of the debate: "All we're asking for is the actual amount of money that we expended," said Phillips, "maybe to some extent you could say we're sort of being a little greedy." But a contract is a contract, he added.

Framing the case as a constitutional precedent centered around "state secrets" unnecessarily politicizes more fundamental problems, namely mutual distrust and insufficient planning.

The insistence of General Dynamics and Boeing that the government provide more specifications could hint at a lack of enterprise, Justice Stephen Breyer seemed to suggest. "Sophisticated contractors are perfectly capable of negotiating their own contract," he said. If the government fed too much information to contractors, "we are not just throwing a monkey wrench into the gears of government contracting; we're throwing the whole monkey."

Chief Justice John Roberts and Justice Antonin Scalia seemed in favor of tossing the case out of the court, arguing that the dispute could be better resolved by contract law rather than constitutional law. If it is indeed settled behind closed doors, we'll never know who put the monkey wrench in the gears of this contract. But really, in a case involving two the top five government contractors, billions of dollars, and the U.S. Navy, are we surprised?

The Homeland Security Department, GSA and Federal Protective Service said Wednesday the "see something, say something" campaign will be expanded to 9,000 federal buildings owned or leased by GSA nationwide.

In the coming weeks, public awareness materials for the campaign will be posted in buildings and signage will be posted at FPS guard stations at each facility. An existing national network of FPS call centers will answer any calls to the phone number posted on the sign, 877-4FPS-411, according to a DHS news release.

"Homeland security begins with hometown security and every citizen -- including government employees -- plays a critical role in ensuring America's safety and security," said DHS Secretary Janet Napolitano. "Our partnership with FPS and GSA to expand the 'If You See Something, Say Something' campaign to our nation's federal buildings is a crucial step in helping the millions of people who work in or visit our federal buildings every day identify and report suspicious activity indicators of terrorism, crime and other threats."

The Metropolitan Transportation Authority of New York City started the see something, say something campaign as a way for the public and employees to identify and report indicators of terrorism, crime and other threats. It was recently expanded to partners including Walmart, the Mall of America, Amtrak and the Metropolitan Washington Area Transit Authority.

White House officials on Thursday morning released a 25-point implementation plan to execute one of the biggest information technology contracting overhauls since the 1996 Clinger-Cohen Act.

The problem the plan aims to tackle: Productivity gains in the private sector have outpaced government performance even though federal agencies spent about $600 billion during the past decade on technology to boost efficiency. The Obama administration's policy roadmap aims to dismantle the old way of installing new technology - which has been to design overly-ambitious systems that fall years behind in development - and create new procedures for quickly and cheaply upgrading machinery.

Here are some of the standouts on the to-do list:

• Reshape or terminate at least one-third of underperforming projects in the government's $80 billion IT portfolio within the next 18 months.
• Shift to a "cloud first" policy, where agencies consider moving to Web-based software and hardware before spending money on new systems. Each agency will identify three must-move services within three months, shift one of those services to the cloud within 12 months and then transition the remaining two within 18 months.
• Within 12 months, establish a tech fellows program modeled after the Presidential Management Fellows program to recruit graduate students with in-demand talents into IT program management.
• By mid-June, launch a website where industry and agency contracting officials can collaborate prior to the issuance of requests for proposals.

More details and commentary later today. . .

The Library of Congress, which recently shutoff access to WikiLeaks on its computers, may be unintentionally undermining the research its analysts perform for lawmakers, classification expert Steven Aftergood, who regularly publishes a government secrecy newsletter, blogged on Monday.

The Congressional Research Service, a branch of the library that scours bills, news and other primary sources to inform lawmakers of pressing issues, "will be unable to access or to cite the leaked materials in their research reports to Congress," wrote Aftergood, who runs the project on government secrecy at the Federation of American Scientists, a nonpartisan think tank.

Several current and former library employees told him that restricting access to WikiLeaks could degrade CRS analysts' research and may not have a legal basis, he added.

• "It's a difficult situation," said one CRS analyst. "The information was released illegally, and it's not right for government agencies to be aiding and abetting this illegal dissemination. But the information is out there. Presumably, any Library of Congress researcher who wants to access the information that WikiLeaks illegally released will simply use their home computers or cell phones to do so. Will they be able to refer directly to the information in their writings for the library? Apparently not, unless a secondary source, like a newspaper, happens to have already cited it."


• "I don't know that you can make a credible argument that CRS reports are the gold standard of analytical reporting, as is often claimed, when its analysts are denied access to information that historians and public policy types call a treasure trove of data," a former CRS employee said.
• In a press release, LOC explained its actions by citing an Office of Management and Budget memo regarding the obligation that federal agencies and federal employees have to protect classified information. "But LOC is statutorily chartered as the library of the House and the Senate. It is a legislative branch agency. I don't recall either chamber directing the blocking of access to WikiLeaks for/or by its committees, offices, agencies, or members," a different former analyst said.

The library did not respond to Aftergood's request for comment on the issue over the weekend.

Aftergood's summation: "If CRS is 'Congress' brain,' then the new access restrictions could mean a partial lobotomy."

The Food and Drug Administration may have to bulk up on information technology if the House signs off on surveillance measures in a food safety bill the Senate passed Tuesday.

Three months after enactment of S. 510, FDA would have to create an online search engine that allows people to find helpful information on every recalled food, such as whether the recall is ongoing or completed.

Within two years, FDA's parent agency, the Health and Human Services Department, would have to report to Congress on new IT needed for identifying food contamination risks and collecting data from foreign governments, industry, labs, consumers and other sources, according to the bill. HHS officials also would have to detail their progress on building an electronic system that can flag indicators of health risks from the data gathered.

Similarly, the Centers for Disease Control and Prevention would be required to upgrade surveillance machines with better tools for obtaining data on disease exposures; enhancements for matching illnesses with specific foods; and mechanisms for sharing anonymous, aggregated data with the public more quickly.

Lawmakers now will reconcile differences between the House bill, H.R. 2749, approved in July 2009, and the Senate version. The Senate bill, which had been in the works for years, was prompted by several high-profile food scares, including outbreaks of salmonella in tomatoes, spinach tainted with e-coli, contaminated imports from China and the biggest beef recall in U.S. history.

Senate Majority Whip Richard J. Durbin, D-Ill., who spearheaded the legislation, said: "This bill will have a dramatic impact on the way the FDA operates - providing it with more resources for inspection, mandatory recall authority and the technology to trace an outbreak back to its source."

Several House Democrats on Wednesday evening announced they have introduced legislation that would expand the Homeland Security Department's cybersecurity powers, adding to the growing pile of competing bills aimed at protecting the Internet from criminals and foreign enemies.

Rep. Bennie Thompson, D-Miss., the outgoing chairman of the Homeland Security Committee, proposed the 2010 Homeland Security Cyber and Physical Infrastructure Protection Act, along with co-sponsors Jane Harman, D-Calif., and Yvette D. Clarke, D-N.Y. Unlike S.3480, the 2010 Protecting Cyberspace as a National Asset Act, which the Senate Homeland Security and Governmental Affairs Committee passed in June, the House committee's bill would not create new White House positions or make systemic changes governmentwide.

Instead, the new legislation would fortify DHS' cyber capacity by creating a new cybersecurity compliance division within the department to oversee performance-based standards for .gov websites and separate standards for critical infrastructure networks. Thompson stressed that, since 2003, Homeland Security has been designated a focal point for the security of cyberspace, under a presidential directive, but has lacked the authority to fulfill its mission.

Like other bills, the House measure would require DHS to partner with the private sector on developing tailored security plans for critical networks.

Specifically, the Thompson legislation would authorize DHS to:

• Establish and enforce performance-based standards for agencies.


• Alert the Office of Management and Budget when agencies violate standards.


• Decide which commercial networks should be designated "covered critical infrastructure" and provide a way for private firms to challenge such a designation.


• Develop performance-based standards for private networks determined to be critical and enforce such standards.


• Recommend liability protection for firms that comply with the standards and issue civil penalties of up to $100,000 per violation.


• Share and protect relevant threat information with other federal agencies and applicable companies.


• Conduct research and development.


• Develop a strategic cybersecurity workforce plan.


• Hire an additional 500 cybersecurity professionals and grant retention bonuses for personnel that would otherwise leave DHS.

"From a security and good-government standpoint, the way to deliver better cybersecurity is to leverage, modify and enhance existing structures and efforts, rather than make wholesale bureaucratic changes," Thompson said in a statement.

Harman added, "Cyberattacks, whether originated by other countries or sub-national groups, are a grave and growing threat to our government and the private sector. This bill provides new tools to DHS to confront them effectively and make certain that civil liberties are protected." In June, Harman introduced a House version, H.R.5548, of the Senate committee's bill that is still pending in Thompson's committee.

Clarke noted, "This bill will protect our country from a growing risk of 'hacks' and better allow the department to fulfill its duties of protecting our nation."

Massachusetts has alerted a website operator that he could face jail time for failing to take down data released to him through a freedom of information request.

According to a Thursday report in The Boston Globe, Massachusetts' Department of Transitional Assistance sent Michael Morisy, cofounder of MuckRock.com, a website devoted to open records, a letter earlier this week warning him failure to remove the data could result in fines or imprisonment.

The acting general counsel of DTA told Morisy the agency released the information -- which concerns how much money in food stamps has been spent at Massachusetts businesses over the past five years -- erroneously. She said she was not threatening him, but alerting him of possible ramifications, as told to her by the Agriculture Department, Boston.com reported.

Morisy has consulted with an attorney and it is unclear what action the state might or might not take. The data remains on the website.

The government's stimulus spending watchdog is set to launch a website on Monday that will track $10 billion in non-stimulus funding for education jobs, Earl Devaney, chairman of the Recovery Accountability and Transparency Board announced on Wednesday. The board, which Congress established in 2009 to oversee $787 billion of economic recovery funding, will host FederalTransparency.gov while it continues to maintain the interactive stimulus-tracking site Recovery.gov.

The goal of the new site is more ambitious. Devaney has said it potentially could be used to monitor the impact of all federal funding. At this point, the board only is authorized to evaluate progress reports from recipients of stimulus funding and money disbursed under the Education Jobs Fund, which Congress created this summer.

"To avoid confusion, the board decided to establish a separate website to track spending under the new education program, which is not part of the Recovery Act. According to Devaney, the new site also will be used for any spending the board is asked to monitor in the future," board officials said in a press release.

The new site, at first, only will provide basic information, such as the total amount received by each recipient, the number of jobs funded and the status of projects, board officials said on Wednesday: "Over time, FederalTransparency.gov will have some of the same features as Recovery.gov,'' Devaney said. "We are putting up the site now as a placeholder so that the public can see where the money is going and where the jobs are being funded in states and territories.''

Under the education jobs program, the Education Department will distribute funds to states and U.S. territories, which will award the money to localities for hiring and rehiring school personnel. Schools are prohibited from using the funds for anything other than paying for salaries and benefits of education-related positions, such as teachers, librarians, secretaries, speech therapists and cafeteria workers.