Category Archives: regulation

DoJ Doing a Racial Bias Study of Police Departments?

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That’s rich.

[T]he Justice Department has enlisted a team of criminal justice researchers to study racial bias in law enforcement in five American cities and recommend strategies to address the problem national[.]

Notice that: not researchers, not social science researchers, not social science of conflict researchers, not social science of culture researchers, not urban social science researchers, not…. Criminal justice researchers specifically. AG Eric Holder already has made up his mind on this one.

This study will be overseen by a DoJ led by a man who insists that

in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards.

This study will be overseen by a DoJ led by a man who

dismissed voter intimidation case against two members of New Black Panthers, whose victims were white, even after those two had conceded the case by refusing to answer it.

This study will be overseen by a DoJ that’s openly racist in its civil rights enforcement.

A DoJ with its mind already made up on race expects to be trusted with a study of racial bias in police forces around the nation. This is, indeed, (trigger alert) chutzpah.

Personal Health Information Security

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We’ve had HIPAA—the Health Insurance Portability and Accountability Act—for nearly 20 years. This act requires, among other things, all handlers of our personal medical information (primarily, but not exclusively, our doctors, hospitals, and health coverage plan providers) to have our permission to pass that information along, even to other doctors, hospitals, and health coverage plan providers and to take adequate steps to safeguard that information when it’s in their hands or being passed along.

It seems that this administration doesn’t consider itself bound by that same law. The latest example of this evident lawlessness is ObamaMart. The GAO has completed its own assessment of ObamaMart’s security and security practices, and it’s unimpressed.

…weaknesses remained in the security and privacy protections applied to HealthCare.gov and its supporting systems.

This is a year after ObamaMart’s rollout and the discovery of its lack of security. This is four years after HHS, through its CDC, began developing ObamaMart and…testing…it. It boggles my pea brain that security problems of this magnitude could still exist.

In the report, the GAO makes six recommendations to the Department of Health and Human Services to implement security and privacy controls to protect sensitive material. The report also makes 22 recommendations to resolve technical weaknesses in security controls.

Problems with the site ranged from the agency not setting up an alternate processing site for HealthCare.gov systems to allow them to be recovered if the site was hacked or went down to the strength of passwords.

These are basic things that any Computer Science 101 freshman knows. But wait—there’s more.

In addition to these weaknesses, we also identified weaknesses in security controls related to boundary protection, identification and authentication, authorization and configuration management. Collectively, these weaknesses put HealthCare.gov systems and the information they contain at increased and unnecessary risk of unauthorized access, use, disclosure, modification, or loss.

These are more of those things any freshman learns. And these are more of the sorts of things that HIPAA was designed to protect.

The HHS has denied some of these problems exist.

HHS has agreed with three of the six recommendations and has agreed with all 22 technical recommendations.

This isn’t incompetence. These folks are extremely intelligent and talented. Nor is this laziness. These folks are among the hardest working in government. No, this shortfall was deliberate.

Among the issues that concerned the administration’s own technical experts at the time was that security testing could not be completed because the system was undergoing so many last-minute changes.

Because securing citizens’ personal information is only an afterthought to this administration. Because obeying the principles and spirit of HIPAA and related Federal laws, if not their letter, just doesn’t matter to this administration.

Rules, and Rules

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In a northern California grade school, there’s a dress code. And there can be no exceptions to the rule.

A young girl was told by her school that she couldn’t wear a T-shirt to pay tribute to the lives lost on Sept 11, 2001.

School leaders say they have a good reason for banning the sixth-grader’s Sept 11 memorial T-shirt on Thursday. When her stepfather tried to get permission, school administrators say it violated their dress code.

District Senior Director for Community Relations Trent Allen said that students were only allowed to deviate from the uniform on free dress days, and 9/11 isn’t one of those days.

It’s very much an important part of the academic process, but need to enforce dress code policy. If you start making exceptions it is hard to draw the line.

Emphasis added to that last. Because there’s a hint there regarding the bureaucratic nature of rules.

Obamacare, Errors, and Attitudes

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The AP has an article that goes into the pitfalls and pratfalls that Obamacare faces this fall, 2014 enrollment period. I’m interested in one error in particular and the attitude of one Democrat in particular who voted for Obamacare’s passage.

The error was the overpayment by the Federal government of many of the subsidies it handed out to…defray…the premium costs of having an Obamacare health plan. Overpayments could occur from a plan buyer underreporting income, from ObamaMart not correctly matching income data with subsidy accruals, and so on.

As a result of having discovered those overpayments, the government is trying to recoup them from the recipients. Congressman Bill Pascrell (D, NJ) disagrees with making people pay back part of their premium subsidy.

Why should individuals be punished if they got a bump in salary? To me, this was not the ACA I voted on.

Indeed, why should individuals be punished? Yet they would be, if Pascrell’s attitude prevails, by paying out more subsidy than was due. Oh, wait, the individuals being punished are taxpayers.

Of course Pascrell (and his fellow Democrats) know this; they just don’t care about those individuals. Taxpayers, after all, are just money trees with which to fund Democrats’ voters.

In Which a Judge Gets It Right

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…but is forced to rule wrongly.

The SEIU sued University of Pittsburgh Medical Center, alleging “unfair” labor practices in that, claimed the union, UPMC management interfered with employees’ right to organize. In connection with that suit, the NLRB issued three subpoenas demanding “highly confidential and proprietary information” be released from UPMC to the union.

Federal District Judge Arthur Schwab found the NLRB’s subpoenas, among other things, over broad and unfocused, and so illegitimate. He also found the subpoenas fundamentally irrelevant to the underlying case (which itself would have rendered the subpoenas inappropriate). He went further. In noting that the NLRB itself made no serious effort to argue the relevance of its subpoenas, he wrote [emphasis added]

The Court does not see how these requests have any legitimate relationship or relevance to the underlying alleged unfair labor practices; instead, the requests seek highly confidential and proprietary information…and, the requests seek information that a union would not be entitled to receive as part of a normal organization effort. Indeed, the scope and nature of the requests, coupled with the NLRB’s efforts to obtain said documents for, and on behalf of, the SEIU, arguably moves the NLRB from its investigatory function and enforcer of federal labor law, to serving as the litigation arm of the Union, and a co-participant in the ongoing organization effort of the Union.

But he was forced to the wrong outcome and to uphold the subpoenas; although he stayed his upholding pending appeal.

However, the practical effect of case law as to enforcement of subpoenas of federal government agencies is that this Court is constrained to essentially “rubber stamp” the enforcement of the Subpoenas at hand.

The Third Circuit, the appellate court for Schwab’s district, can overrule Schwab and strike down the subpoenas. The appellate level is the normal place where Federal agency subpoenas get struck. Schwab also, though, has given the Third an out.

If the practical effect of this legal predicament is to be altered, it is not the District Court’s role to do so, but the role of the appellate court. The Court is at a loss of how to adequately address the above issues of whether the matter under investigation serves legitimate purposes, whether the inquiry is relevant to that purpose, and not unduly broad or burdensome, while still conforming to the extremely narrow and limited nature of the proceedings at hand. If the United States Court of Appeals for the Third Circuit finds that the District Court has the authority to conduct a meaningful and/or thorough review of the three (3) Subpoena[s] at issue here, the Court is prepared to do so.

Schwab’s opinion can be read here.