Jerry Brito

Loving the Cyber Bomb? The Dangers of Threat Inflation in Cybersecurity Policy

Jerry Brito et al. — Mon, 23 May 2011 12:41:03 PDT

Over the past two years there has been a steady drumbeat of alarmist rhetoric coming out of Washington about potential catastrophic cyber threats. For example, at a Senate Armed Services Committee hearing last year, Chairman Carl Levin said that “cyberweapons and cyberattacks potentially can be devastating, approaching weapons of mass destruction in their effects.” Proposed responses include increased federal spending on cybersecurity and the regulation of private network security practices.

The rhetoric of “cyber doom” employed by proponents of increased federal intervention, however, lacks clear evidence of a serious threat that can be verified by the public. As a result, the United States may be witnessing a bout of threat inflation similar to that seen in the run-up to the Iraq War. Additionally, a cyber-industrial complex is emerging, much like the military-industrial complex of the Cold War. This complex may serve to not only supply cybersecurity solutions to the federal government, but to drum up demand for them as well.

Part I of this article draws a parallel between today’s cybersecurity debate and the run-up to the Iraq War and looks at how an inflated public conception of the threat we face may lead to unnecessary regulation of the Internet. Part II draws a parallel between the emerging cybersecurity establishment and the military-industrial complex of the Cold War and looks at how unwarranted external influence can lead to unnecessary federal spending. Finally, Part III surveys several federal cybersecurity proposals and presents a framework for analyzing the cybersecurity threat.

Running for Cover: The BRAC Commission as a Model for Spending Reform

Jerry Brito — Mon, 02 Aug 2010 11:42:56 PDT

With record spending and deficits come calls for reform. Spending reform, however, is easier said than done, and independent commissions are often suggested as a way to tackle intractable political problems. Not all commissions are created the same, however. While baseball and basketball both employ balls, they are entirely different animals. The same applies to congressionally created commissions. The Base Realignment and Closing (BRAC) commissions of the late 80s and early 90s were successful because of their peculiar structure—not simply because they were independent commissions. In this Article we first look at the roots of BRAC’s success and then compare it to today’s commission proposals

Transparency and Performance in Government

Jerry Brito — Wed, 17 Feb 2010 13:29:40 PST

The legal literature on transparency is generally divided into two categories: the study of transparency as a solution to political corruption and scholarship looking at transparency in the context of corporate disclosure requirements. The former is concerned with preventing government malfeasance that can lead to serious societal problems, especially in the developing world. The latter focuses on the disclosure of corporate performance to fully inform markets. However, these two insights on transparency never meet. In this article, we hope to show that just as mandatory transparency can improve corporate performance, it may help improve government performance as well.

Part I of this article defines transparency and shows how it relates to performance accountability. Part II explores how transparency can result in improved performance and looks at the lessons government can draw from corporate financial transparency. Finally, part III examines some limits to transparency, including exceptions that swallow the rule and public choice concerns.

Midnight Regulations and Regulatory Review

Jerry Brito — Tue, 26 Aug 2008 11:22:16 PDT

The term “midnight regulations” describes the dramatic spike of new regulations promulgated at the end of presidential terms, especially during transitions to an administration of the opposite party. As commentators have pointed out, this phenomenon is problematic because it is the result of a lack of presidential accountability during the midnight period—the time after the November election and before Inauguration Day. Midnight regulations, however, present another problem that receives little attention. It is the prospect that an increase in the number of regulations promulgated in a given time-period could overwhelm the institutional review process that serves to ensure that new regulations have been carefully considered, are based on sound evidence, and can justify their cost.

The regulatory review process that every president since Richard Nixon has used to check his own administration’s regulations is now operated by the Office of Information and Regulatory Affairs (OIRA), which is charged with reviewing all proposed new significant regulations. The problem is that while the number of regulations proposed spikes during the midnight period, the resources available to OIRA remain constant.

Although the problem is perennially highlighted in the press, few satisfactory solutions to the phenomenon have been proposed. One possible solution to address the effects of midnight regulation on regulatory review might be to cap the number of regulations agencies may submit to OIRA for review during a given time-period.

Part I of this Article presents updated evidence of the existence of the midnight regulation phenomenon. It reviews the causes of the phenomenon and asks whether increased regulatory output is an effective strategy on the part of outgoing administration. Part II discusses the variety of concerns raised by midnight regulations with a special focus on the lack of proper OIRA oversight during the midnight period. Finally, Part III reviews several proposed solutions to the midnight regulations problem and puts forth our own suggestion to address the effects of midnight regulations on regulatory review.

Toward A More Perfect Union: Regulatory Analysis and Performance Management

Jerry Brito et al. — Tue, 01 Apr 2008 13:16:07 PDT

Two separate but similar federal initiatives attempt to apply a scientific approach to improve government decision-making and results: performance management and regulatory analysis. Performance management finds its legislative home in the Government Performance and Results Act of 1993, while the main regulatory analysis mandate can be found in Executive Order 12,866.

Both initiatives seek to identify the nature of the problems government is trying to solve, develop alternative solutions, and evaluate the effectiveness and costs of the alternatives. Both require measurement of costs and outcomes. Both involve rigorous analysis to identify whether, and to what extent, government actions cause particular results to occur. Their analytical methods can be used ex ante, to evaluate alternative prospective courses of action, or ex post, to assess what consequences actually flowed from the alternative that was chosen and identify opportunities for improvement.

Yet performance management and regulatory analysis rarely cross paths. Scholars who specialize in performance management tend to be in public administration or policy analysis departments; scholars who focus on regulatory analysis tend to be economists or lawyers. To our knowledge no one has drawn the link between the two in the legal literature.

Our paper explains the connection between the two concepts and their respective embodiments in the law. We show that neither standing alone brings to bear all of the benefits of their foundational concepts, but each can each be used to supplement the other. To that end we outline steps that the Office of Management and Budget can take today to increase the effectiveness of each concept, as well as recommend changes to the law.

Hack, Mash & Peer: Crowdsourcing Government Transparency

Jerry Brito — Wed, 24 Oct 2007 12:41:39 PDT

Hack, Mash & Peer: Crowdsourcing Government Transparency

JERRY BRITO George Mason University - Mercatus Center - Regulatory Studies Program October 21, 2007

Abstract: In order to hold government accountable for its actions, citizens must know what those actions are. To that end, they must insist that government act openly and transparently to the greatest extent possible. In the Twenty- First Century, this entails making its data available online and easy to access. If government data is made available online in useful and flexible formats, citizens will be able to utilize modern Internet tools to shed light on government activities. Such tools include mashups, which highlight hidden connections between different data sets, and crowdsourcing, which makes light work of sifting through mountains of data by focusing thousands of eyes on a particular set of data.

Today, however, the state of government's online offerings is very sad indeed. Some nominally publicly available information is not online at all, and the data that is online is often not in useful formats. Government should be encouraged to release public information online in a structured, open, and searchable manner. To the extent that government does not modernize, however, we should hope that private third parties build unofficial databases and make these available in a useful form to the public.