Lame-duck congressional sessions almost always endanger freedom, and sadly, this one was no exception. In a “lamer” than usual lame-duck move at the end of last week, the Senate passed H.R. 4174, the Foundations for Evidence-based Policymaking Act (FEPA). This move came without a hearing and with only a voice vote after no debate. Although the bill is defended as a way to use data to evaluate the effectiveness of government programs, it will result in an unprecedented assault on the privacy of American citizens.
Very similar to outgoing Speaker Paul Ryan’s handling of the final passage of the Every Student Succeeds Act, this pre-Christmas Grinch-like maneuver -- stealing the privacy of ordinary citizens -- was done in the dark of night after the election and during holiday celebrations. Presumably the goal was to evade the opposition of grassroots groups, especially parent and education freedom organizations, which had been strongly opposing this bill since its initial proposal.
Last year, Ryan rammed his own FEPA bill through the House committee two days after introduction and then passed it off the floor with no real debate about the privacy implications. Citizen outrage forced the Senate to hold the bill in committee for thirteen months until after the election, when a slightly amended version was brought from committee and passed on December 19th with no hearing, no debate, and no recorded vote. The House then passed the amended version of the Senate bill, again after no debate, by a final vote of 356-17 -- with only seventeen Republicans having the wisdom and courage to vote against it.
Passing any legislation in this underhanded manner is an egregious violation of citizen-controlled legislative process in our representative republic. But this bill is especially bad because of its implications for privacy and the sharing of individually identifiable information across the entire federal government. Here are some important details from a summary and a rebuttal prepared by groups opposing FEPA:
- 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. 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, 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.
Many others have also detailed the numerous problems with this bill. Privacy expert Barmak Nassirian has said of this type of legislation:
“Tracking autonomous free individuals through most of their lives in the name of better information for the benefit of others may be justifiable, but its extremism should at the very least be acknowledged and addressed.”
Writing in The Federalist, Joy Pullman noted the goal of expanding the collection of education information that will result from this Orwellian scheme:
“One of the major intents of collecting education information is to integrate it into economic planning. You read that right: Republicans are helping accelerate the United States towards a planned economy, despite its well-known and horrific failures…”
And attorney Jane Robbins wrote about the death of consent in this bill:
“In a free society, the government is subordinate to the citizen. If it wants to use his data for something he didn’t agree to, it should first obtain his consent. [The Ryan-Murray bill] operates according to the contrary principle – that government is entitled to do whatever it wants with a citizen’s data and shouldn’t be hindered by his objection.”
As with ESSA, Congress definitely played Santa Claus to both the corporate establishment of Big Data and to Big Government bureaucrats while leaving coal to their constituents. Despite the lopsided margins of passage, President Trump should be asked to veto this bill. If he really cares about the “forgotten men and women of America,” especially parents, who voted for him in 2016 in large part because he promised to protect privacy and get rid of Common Core, this latest betrayal by Congress should not be allowed to stand.
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