Author: Danielle Citron


Predictably Irrational

89px-Woody_Allen_%282006%29.jpgAs our readers at CoOp know well, my posts have highlighted concerns about the accuracy and security of our e-voting machines. See here, here, here, and here. My rational self thus tells me that the e-voting technology sitting in my precinct is problematic, plain and simple. With this in mind, I should have put my memory card into the Premier (formerly Diebold) voting machine with dread. I should have felt despair. But, truth be told, once I had touched the screen eleven times to cast my choices for the Presidential ticket, a Congressional race, local judges and numerous ballot initiatives and pressed enter (or something like that), I was filled with joy. The final screen told me that my ballots had been cast–and, in that moment, I believed. Behavioral economists unquestionably know of which they speak–optimism bias is a powerful thing. But now, as Alvy Singer told Annie Hall’s brother, it is time for me to return to planet earth.

Wikimedia Commons


Certification of Voting Machines: Little Reassurance to Voters

120px-Ecounting-scanning3.jpgElection officials try to alleviate voters’ concerns about the reliability of e-voting machines with the following refrain: labs ran our machines through rigorous testing and certified them as reliable and safe. But, of course, those officials fail to explain that many of the e-voting machines in use today were certified by labs whose credibility has been seriously called into question. The Election Assistance Commission has just suspended SysTest Labs, a company that tested and certified voting machines since 2001, due to their “failure to conform to procedures and requirements set by the National Institute of Standards and Technology.” According to the EAC, SysTest failed to create and validate testing methods, maintain proper documentation of its testing, and employ properly trained or qualified personnel. The key question is really: if all of that is true, what did the testing lab do at all?

To add to voters’ worries, another lab involved in testing today’s e-voting equipment, CIBER, similarly faced suspension by the EAC in January 2007 due to its lax oversight of vendors’ e-voting systems. And even long before CIBER’s suspension, it was roundly criticized for its security and reliability problems. (CIBER appears to be back in the testing game, along with three other companies).

All of this suggests that the certification of these machines should give us little comfort–two of the four testing labs that certified the software running our voting machines were less than reliable. Moreover, as for all of the e-voting machines that we will use on Tuesday, vendors paid for the testing labs’ services and the certification reports were never released to the public, raising concerns about the lack of impartiality of all of the testing labs.


Fairfax on Gambling

Lisa Fairfax at the Conglomerate has a thoughtful post on state ballot initiatives to legalize gambling. She writes:

“[T]his election day, voters in several states will be considering ballot initiatives involving gambling or lotteries. Indeed, my own state of Maryland has proposed such an initiative, which would add a new constitutional amendment approving up to 15,000 “video lottery terminals” in five locations throughout the state. Like other states, Maryland’s initiative aims to raise money to cover its significant budget shortfall—a shortfall of about $430 million. As one can imagine, these initiatives have sparked considerable debate, and that debate seems to be heightened when viewed in the context of the current financial and economic crisis.

Proponents of the Maryland measure contend that the initiative could potentially raise $600 million, a significant portion of which would go to fund public education. From this perspective, in a time when states are strapped for cash and thus not only have had to increase taxes, but also have had to take measures such as slashing budgets and instituting hiring freezes and/or mandatory furloughs, it is hard to argue with a proposal designed to inject $600 million into the state’s coffers. As the Baltimore Sun noted in its recent endorsement of the measure, while raising revenue from gambling is not ideal, it may be better than the alternative choices of higher taxes or allowing public education and health care to suffer if budget cuts continue unabated. Proponents also point out that many Marylanders travel out of state to nearby states like Delaware or West Virginia where gambling is allowed, and hence we might as well enable these Marylanders to spend those funds in their own state.

Opponents first question whether gambling initiatives can be counted on to raise significant revenue. Given recent reports indicating that revenue has fallen sharply in many casinos, this is not an idle question. These reports reflect the reality that people no longer have discretionary funds to spend on activities like gambling. Then too, opponents insist that gambling has costly secondary effects because, as studies suggest, it is addictive, leads to increased alcoholism and otherwise negatively impacts other businesses and the surrounding community. Moreover, opponents express concern that gambling measures will prove especially harmful to lower class communities, imposing what some describe as a regressive tax on those communities. Again, such an argument has particular salience in these economic times. Indeed, if more people are living paycheck to paycheck, can or should we pin even part of our economic recovery on the hope that they will use part of their paychecks to gamble?

In the end, much like recovery/bailout measures at the federal level, these gambling initiatives sorely test our ability to find solutions that do not exacerbate our problems or otherwise offer short-term fixes that undermine our long-term ability for economic growth and financial health. In its opposition to the initiative, the Washington Post insisted that the gambling measure will not promote healthy economic growth and hence voters should resist the “false promise of pain-free revenue” that the gambling measure represents. The Baltimore Sun also recognizes the problems associated with relying on gambling revenue to finance government, but nevertheless suggest that while relying on such revenue represents a painful choice for voters, these extraordinary times require us to make painful choices.”


Voting 2.0

A cherished right in the United States is to vote in secrecy. But what if we don’t want to exercise that right in secret? What if in this age of insecure and inaccurate e-voting machines we want to record our votes and our voting experiences, say with cell phones or video cameras? According to The New York Times, many voters plan to do just that, making it likely that this election will be the “most recorded in history.”

Much like the online communities that came together to expose flaws in Diebold’s source code in 2003 after activist Bev Harris discovered the code on an unsecured website, Web 2.0 platforms are emerging for the sole purpose of recording voting problems. Jon Pincus’s Voter Suppression Wiki will let voters collaborate to collect examples of problems with voting, from exceptionally long lines or more direct actions to intimidate voters. Allison Fine and Nancy Scola are using Twitter to monitor voting problems. YouTube has created a channel, Video Your Vote, to encourage submissions. Even The New York Times has a Polling Place Photo Project on its website. Such public participation will no doubt generate crucial information for states and the Election Assistance Commission to study and may even enhance the legitimacy of this election.


An Important Resource for Combating Online Fraud: State Attorneys General

96px-Honor%C3%A9_Daumier_018.jpgThe Center for Democracy and Technology and the Center for American Progress have published a report entitled Online Consumers at Risk and the Role of State Attorneys General. According to the Report, the FTC received over 200,000 Internet-related fraud complaints this year, up from 16,000 in 2006 and 24,000 in 2005. And such numbers may be under-inclusive as consumers often do not know when they are victimized by malware.

The Report argues that state attorneys general need to devote more resources to combating online fraud as state consumer protection laws often offer greater protection to consumers than federal laws. To date, state action against online fraudsters has been limited—for example, in the past three years, state attorney generals have brought only 11 cases against spyware distributors, the same number as the Federal Trade Commission. The Report offers a number of strategies to assist a state attorney general’s office, such as additional training of investigators and prosecutors on how to identify online fraud and abuse, enhanced computer forensic capabilities to trace and catch Internet fraudsters, and expanded partnerships with commercial and public-interest coalitions to fight online fraud. More aggressive action by a state attorney general’s office would combat the notion that online fraud is an easy and cost-free way to make serious money.


E-voting Machine Glitches: Depressingly Reliable

Today’s New York Times blog reports that early voters in West Virginia have found that e-voting machines manufactured by ES&S recorded their votes for Democratic candidates as Republican candidates. For instance, Calvin Thomas of Ripley, West Virginia explained that when he tried to vote for Senator Barack Obama, it registered the vote for Senator John McCain. He noted that his daughter had the same problem. ES&S voting machines in Tennessee reportedly have similar troubles, but in reverse: at least three voters compained that their machine registered votes for McCain as votes for Obama.

Such “vote switching” is a well-known problem and has occurred in prior elections. Indeed, a July 2007 investigative report revealed that 30 to 40 percent of ES&S’s e-voting machines under review changed voters’ selections. And Colorado’s Secretary of State decertified e-voting systems manufactured by ES&S because tests demonstrated that the machines could not accurately count votes. Now we can add another certainty in life aside from death and taxes: e-voting machine glitches.


Skepticism About Fighting Terrorists With Data Mining

According to the New York TImes, the British government is considering setting up a database of all phone, email, and Internet traffic in the country to assist in efforts to fight terrorism and crime. Officials suggested that a database could store all phone numbers dailed, web sites visited, and email addresses contacted by everyone in Britain without storing the content of the phone calls or email messages.

To be sure, such a database would raise serious privacy concerns. But it also provokes a first-order question of whether such databases are even useful in spotting terrorists. The answer to that question appears to be “no.” Recent reports suggest that “data mining is not the silver bullet that that architects of programs such as Total Information Awareness believe them to be.” The National Research Council recently produced a 376-report on data mining, counter-terrorism, and American democracy, which explains that “[a]utomated identification of terrorists through data mining (or any other known methodology) is neither feasible as an objective nor desirable as a goal of technology development efforts.” Although data mining has remarkable success in predicting consumer behavior for advertising and credit card reporting agencies, it has much less success predicting the behavior of terrorists. As ars technica reporter Jon Stokes explains, unlike a computer program’s ability to compare a consumer’s credit history with the history of millions of consumers to predict a person’s likelihood of delinquency, no large dataset of terrorist behavior exists that “can be used to train a data mining application to predict an individual’s intention to commit an act of terror with any degree of confidence.” The NRC report also explains that not only is the training data lacking but the data that the program would be mining has been purposefully corrupted by the terrorists themselves. Terrorists disguise their activities using operational security measures such as code words and encryption, rendering the data that would be mined suspect. In much the same way that credit scores would be worthless if borrowers could manipulate their credit history, data mining for terrorist activities may be a non-starter as terrorists no doubt manipulate the data trails that they leave as they make phone calls and surf the Internet.


The Wild West of Genetic Testing for Consumers

As Deven blogged about yesterday, the Personal Genome Project (PGP) hopes to convince 100,000 people to post their genetic information online in an effort to widen the available data set and expertise for research. (Although the current participants in the study are entrepreneurs in the biomedical industry and academics, 5,000 other individuals have signed on to take part in it). Businesses also are getting into the act, providing information to consumers about possible medical risks encoded in their DNA for as little as $399.

Consumers should note that the emerging market for genetic information is largely unregulated. As this week’s CQ Weekly reports, the FDA usually does not review the tests for approval and has no explicit regulations on what companies can tell consumers about their likelihood of disease. Companies also are not obliged to adhere to the privacy protections of HIPAA because they fall outside the definition of health care providers, even though some say that they follow HIPAA’s privacy guidelines. Federal law prohibiting discrimination on the basis of genetic data applies only to employers and health insurers, not life insurance companies. On the state level, limited protections exist regarding the collection and use of genetic information to consumers purchasing information about their DNA. State laws regulating genetic testing typically do not apply to genetic information providers. Like federal law, they prohibit employers and insurers from discriminating against individuals on the basis of their genetic information. A number of states, however, do require explicit consent for sample storage, or demand the destruction of samples after the purpose of their collection has been achieved. But, on the main, state laws addressing DNA collection and banking activities do not generally apply to companies that sell genetic testing services directly to consumers.

In an article for the New England Journal of Medicine, Patricia Roche and George Annas explain that absent a comprehensive federal law addressing genetic privacy “those who do relinquish their DNA, assuming that they have control over its uses, may discover that they have given it all away.” As Deven warns, consumers signing up for studies or purchasing information about their genetic data may not appreciate the practical and psychological risks of disclosing genetic information, both for themselves and their families. Although Roche and Annas urge individuals to only “utilize testing services that guarantee to destroy the DNA sample on completion of the specified test,” many may not do so as the popularity of the PGP suggests.


Is the Net Impeding Our Intellectual Life (or Something Else)?

Computerkids.jpgRecent books and articles contend that the Internet has made us narcissistic, shallow, and uncreative. See here, here, and here. According to critics, search engines produce easy answers, discouraging independent and critical thinking. They also provide access to bogus information, confirming prejudices and fostering stupidity and extremism. These arguments seemingly build on the work of many thoughtful scholars, such as Neil Postman who authored Amusing Ourselves to Death and Benjamin Barber who wrote Consumed.

In Wired, David Wolman takes this argument to task, characterizing these critics as modern-day Chicken Littles. Just as the telephone did not extinguish letter writing and modern transportation did not ruin community life, the Internet will not stunt intellectual life in the twenty-first century. Wolman argues that digital technologies, in fact, give us more opportunity to become engaged in the world of ideas. Wikipedia and Wiktionary demonstrate a bona fide hunger for learning and accurate information. And irrationality and prejudice cannot be blamed on technology—it was there long before the emergence of the Internet and will remain long after we have moved on to another communications medium.

The Internet’s overall impact on our intellectual life is surely debatable. But recent reports suggest that it is having a positive effect on our family lives, bringing us in closer contact with our loved ones than ever before. As the Washington Post notes today, the Pew Internet and American Life Project released a report, described as the first of its kind, that finds our families lives richer as a result of Information Age technologies. The report notes that 25 percent of adults said that cellphone calls, emails and text messages, and other forms of online communications made their families closer. 60 percent of responding adults said that the technologies had no impact on their family lives, and only 11 percent said the technology had a negative effect. 47 percent of the adults said cellphones and the Internet had improved family communication. Barry Wellman, an author of the report and sociology professor at the University of Toronto, explained that the communication innovations allow families to “know what each other is doing during the day” and does not “cut back on their physical presence with each other.” The findings were based on a nationally representative poll of 2,252 people, which explored technology use and profiled a group of 482 adults with children.


Political Transitions and Agency Rulemaking

According to The New York Times, Attorney General Michael Mukasey has issued new guidelines that allow FBI agents to use intrusive investigative techniques, even if there is no clear reason for suspecting an individual or group of wrongdoing. Under the new rules, agents may engage in lengthy physical surveillance, covertly infiltrate lawful groups (much in the way that the Maryland state police were recently chastised for doing, see this post), and conduct pretext interviews where agents lie about their identities while questioning a subject’s associates and friends based merely on a generalized “threat.” The new rules permit the FBI to use these techniques on people “identified in part by their race or religion and without requiring even minimal evidence of criminal activity.” AG Mukasey promises that these investigations will not violate the Constitution. This “trust us” approach will no doubt provoke concern about further erosions of civil liberties, especially in light of the FBI’s long history of abusing its power to spy on civil rights groups over the ages.

These new rules will no doubt be a part of a flurry of regulatory activity in the final months of the Bush Presidency. Anne Joseph O’Connell has written a terrific article entitled Political Cycles of Rulemaking: An Empirical Portrait of the Modern Administrative State in the Virginia Law Review that highlights the uptick in agency policymaking in the period just before and after Presidential transitions. In a study that is a first of its kind, O’Connell surveyed a database of agency rulemaking from 1983 to 2003 and found that agency rulemaking is not as ossified as has been previously believed, particularly during political transitions. As the end of the Bush Presidency nears and a new Presidential administration approaches, we will likely see more rules like the ones recently adopted by AG Mukasey.