There they go again. Big Government and Big Data have received another gift from Congress while the privacy of ordinary citizens has been further eroded.
In sadly typical lame-duck fashion, the Senate passed HR 4174, the Foundations for Evidence-based Policymaking Act, right before Christmas after strong citizen opposition had held up its passage for 13 months. The bill was brought to the Senate floor from committee without even a perfunctory hearing. As in the House, there was no real debate about the enormous privacy implications for individual American citizens. Except for the great efforts of constitutionally minded conservatives like Rep. Justin Amash (R-Mich.), who demanded a roll call when the House re-passed the Senate version, this privacy-killing bill would have snuck through without a single recorded vote. As it was, only 17 Republicans had the wisdom and courage to vote against the bill.
- While FEPA itself doesn’t expressly establish a formal data system with a central repository, the bill’s mandates regarding linking and sharing data among multiple federal agencies and thousands of bureaucrats will create essentially the same result: a de facto national database.
- The federal government is demonstrably incompetent at data security; moreover, it routinely ignores the overwhelming data it already has showing the ineffectiveness of many (most) federal programs like Head Start, and federal education programs. There is no reason to believe an even more enormous trove of data can be secured, or that it will actually change government behavior in any meaningful way.
- Most importantly, as eloquently stated by attorney and education expert Emmett McGroarty in his testimony to the FEPA commission, collecting and holding massive amounts of data about an individual has an intimidating effect on the individual—even if the data is never used. This fundamentally changes the relationship between the individual and government. Citizen direction of government cannot happen when government sits in a position of intimidation of the individual.
Claim: FEPA doesn’t authorize any new data collection or data analysis.
Rebuttal: Regardless of whether FEPA expressly authorizes new data collection, it 1) incentivizes agency heads to expand, not maintain or minimize, data collection; 2) creates new sources of data for agencies by allowing unfettered access to other agencies’ data; 3) creates a process whereby public and private organizations can access non-public government data; 4) allows the OMB Director to expand the universe of statistical agencies and units; and 5) allows one person, the OMB director, to decide via post-enactment “guidance” what if any data will be exempt from sharing as too private or confidential.
Claim: FEPA “does not overturn an existing student unit record ban, which prohibits the establishment of a database with data on all students,” so parents need not worry about their children’s personally identifiable information (PII).
Rebuttal: FEPA doesn’t overturn this ban – that will almost certainly come later. But its extensive data-linking and data-sharing mandates create a de facto national database, whereby the data stays “housed” within the collecting agency but can be accessed by all. Title III specifically authorizes data “accessed” by federal agencies to be shared. This will threaten the security of not only the student data already maintained by the U.S. Department of Education (USED), but also the data in the states’ longitudinal data systems.
Claim: FEPA doesn’t repeal CIPSEA [The Confidential Information Protection and Statistical Efficiency Act] but rather strengthens it.
Rebuttal: FEPA strengthens nothing, [certainly not privacy protection]. It merely reiterates the same penalties (fine and jail term) in existence since 2002 that have rarely or never been enforced. Worse, FEPA increases threats to privacy and data security by mandating increased access to confidential data and metadata and encouraging unlimited data-swapping with no provisions for data security.
Sven Larson, an economist writing at the American Institute of Economic Research (AIER) in 2017, updated his concerns after the recent Senate passage. He sees Big Government motivation for “a detailed, currently updated database over household earnings” as enabling a massive expansion of the Deep State/Nanny State:
Put bluntly: this bill could provide the operational infrastructure for federal funds for single-payer health care, general income security (we know it as “paid family leave”) and universal child care. These programs, which complete the edifice known as the egalitarian welfare state, would all be mandatory for taxpayers to pay for, and for all families to participate in. For that purpose, government needs much more data on our earnings and our families.
Joy Pullman, writing at The Federalist, discusses the bipartisan motivation for this legislation:
Democrats tend to like this because most Democrats support unlimited government, or socialism. Republicans (and Democrats) tend to like it because they tend towards fascism, or private associations that all must get government approval, which allows bureaucrats to control society. These are both two different flavors of a collectivist welfare state, and the existence of America’s welfare state provides the main pretext for this data control because government transfer payments grease the hinges for government surveillance.
Regardless of the motivations, Congress should not be expanding the Deep State or enabling a Chinese-style surveillance state on American citizens with little to no discussion or accountability. President Trump promised on the campaign trail to protect privacy, and despite the large margins of passage, citizens need to remind him of and hold him to that promise.
This bill must be vetoed by January 12th to stop it from becoming law. Phone calls to the White House are not being accepted due to the shutdown. You may reach the president by email or on Twitter @realDonaldTrump or @POTUS.