Hinckley Journal of Politics vol 8

HINCKLEY JOURNAL OF POLITICS 2007 Volume 8 Copyright ? 1998 by the Hinckley Institute of Politics and the University of Utah HINCKLEY JOURNAL OF POLITICS 2007 EDITORIAL BOARD Director Assistant Director Editor Editor Managing Editor Faculty Advisors Kirk L. Jowers Jayne Nelson Cameron B. Diehl W. Brett Barrus Courtney McBeth Chandran Kukathas,Dept. of Political Science Pei-te Lien, Dept. of Political Science Susan Olson, Dept. of Political Science Matt Bradley, Honors Faculty, Dept. of English Jeff Adams Christina Coloroso Robert Costa Julie Engar Jessica Fawson Isha Gupta Phil Herbert Remington Johnson Cheryl Phipps Jake Reid Patrick Reimherr Matthew J. Smith Shawn Strong Emmaly Wiederholt University of Utah Print & Copy Services Publications Council, University of Utah Hinckley Institute of Politics Connie Powell Student Board Members Printing Funding Art Direction The Hinckley Journal of Politics is published annually by the Hinckley Institute of Politics for students, public officials, university officials, and the public. The opinions expressed herein are not necessarily those of the University of Utah, the Hinckley Institute of Politics, the Publications Council, or the editorial board. Please direct your correspondence to the Journal Editors, Hinckley Institute of Politics, 260 South Central Campus Drive, Room 253, Salt Lake City, Utah 84112, [phone], or email: [e-mail]. Look for the Hinckley Institute of Politics home page at: www.hinckley.utah.edu. HINCKLEY JOURNAL TABLE OF CONTENTS OF POLITICS 2007, VOL. 8 A Word from the Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 Editors' Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 About the Hinckley Institute of Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 In Memory of Dr. R.J. Snow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 Final Word . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89 ARTICLES STUDENT PAPERS Warming Up to Credit Freeze Laws: The Case of Utah . . . . . . . . . . . . . . . . . . . . . . . .W. Brett Barrus . . . . . . .7 Improving America's Communities: Policy Proposals that Increase Civic Engagement and Improve America's Built Environment . . . . . . . . . . . . . . . . . . . . . . .Bartly Matthews . . . . . .19 Rhetoric: How Politicians Manipulate Language and the Media To Shape Public Thought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Elspeth Gustavson . . . . . .29 Quantifying the Impact of Partisan Gerrymandering: Uncompetitive, Unresponsive, and Unaccountable American Democracy . . . . . . . . .Bryson Morgan . . . . . .35 The Ephemeral Immigration Reform and Control Act of 1986: Its Formation, Failure and Future Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Matt Homer . . . . . .45 Women in Kuwait: The Struggle for Political Equality . . . . . . . . . . . . . . . . . . . . . . . . . . .KaLyn Davis . . . . . .53 Stamping Out Icons: A Legal Analysis on How to Legislate Against Virtual Child Pornography Without Trampling Over the First Amendment . . . . . . . . .Paul T. Baker . . . . . .59 PUBLIC OFFICIALS' CONTRIBUTIONS Sales Tax and Land Use: Are Utah Cities Being "Driven to the Mall?" . . . . . . .Senator Gregory Bell . . . . . .69 Voices from the Classroom: The Effect of Class Size On Teaching and Learning . . . . . . . . . . . . . . . . . . . . . . . . . . . .Representative Carol Spackman Moss . . . . . .77 iProvo: A Telecommunications Success Story . . . . . . . . . . . . . . . . . . . . . .Provo Mayor Lewis Billings . . . . . .81 iii A WORD FROM THE DIRECTOR A s the director of the Hinckley Institute of Politics, it is my pleasure to introduce the 2007 Hinckley Journal of Politics. Continuing in the outstanding academic tradition of the Hinckley Journal, this year's edition represents quality research on issues relevant to Utah, our nation, and the world. Topics range from statewide education initiatives and toxic waste management to federal healthcare mandates and feminism in the Middle East. Each article comes from bright and dedicated students seeking to both expand their own knowledge while simultaneously provide substantive research and analysis in their field. In addition to student contributions to the Journal, we are grateful for and enlightened by articles submitted by Provo Mayor Lewis Billings, Senator Gregory Bell and Representative Carol Spackman Moss. This fantastic compilation could not have come to fruition without the diligent work of its 2007 co-editors Cameron Diehl and W. Brett Barrus. Additionally, the tireless effort of the Managing Editor Courtney McBeth, our Faculty Advisors, Student Board Members, and Hinckley Institute staff was pivotal in making this year's Journal possible. Through the various opportunities offered through the Hinckley Institute of Politics, University of Utah students are able to apply the theories and concepts they learn in the classroom to real world experiences. To date, the Hinckley Institute has placed and supported over 4,000 interns in political offices throughout the State of Utah, in Washington D.C., and at a host of international locations. Interns are required to complete a research paper based on the issues pertinent to their internships and, therefore, reflect practical ideas and conclusions about some of today's most pressing issues. The Journal represents some of the best and most compelling of these papers. We still mourn the loss of R.J. Snow a great friend and mentor. The Journal reflects R.J.'s life-long pursuit of helping students put serious academic study to practical effect and then to memorialize those experiences through thoughtful research and writing. It is an honor to dedicate this Journal to our beloved R.J. Snow. Sincerely, Kirk L. Jowers Director, Hinckley Institute of Politics 1 EDITORS' NOTES HINCKLEY JOURNAL OF POLITICS' MISSION STATEMENT The Hinckley Journal of Politics strives to publish scholarly papers of exceptional caliber, promoting the intellectual talents and knowledge of University of Utah undergraduate students. Contributing articles should address pertinent issues by illuminating key problems and potential solutions, adhering to the highest standards of political research and analysis. The Journal seeks to cover issues ranging from local to international political concerns, embracing diverse perspectives and a variety of analytical approaches. With this publication, the Hinckley Institute hopes to encourage reader involvement in the intriguing world of politics. GENERAL COMMENTS It has been an honor to serve as editors for the 2007 edition of the Hinckley Journal of Politics. We thank the student authors and the public officials who have contributed to this year's Journal for their hard work. The Journal is one of many wonderful opportunities the Hinckley Institute provides for undergraduate students. We are indeed appreciative of the generosity of the Hinckley family for their vision of the need for student involvement in practical politics and the principle of citizen involvement in government. We thank the Hinckley staff for their dedication to students. We also commend the student authors for their involvement in the political process, whether it is serving an internship, working on a campaign, or studying politics. We hope you will find the articles within the Journal thought-provoking and timely. ACKNOWLEDGEMENTS The editors of the Hinckley Journal of Politics wish to thank: ? This year's published authors, for their hard work and excellent writings in politics. ? This year's contributing public officials: Utah State Representative Carol Spackman Moss, Utah State Senator Gregory Bell and Provo City Mayor Lewis Billings for their continued efforts in representing the people of Utah and for their support of the Hinckley Institute of Politics. ? This year's Editorial Board members, for reviewing and making the final selection of papers for publication, and for distributing the weight of the load required in putting together this publication. ? This year's Faculty Advisors, Chandran Kukathas, Pei-te Lien, Susan Olson and Matt Bradley for their work in reviewing and editing the published student papers. ? Robert H. Hinckley and the Hinckley family. Because of Mr. Hinckley's vision and the support of his family, many students at the University of Utah have been given the opportunity to gain a greater respect and love for politics and of our system of government. ? All of the students who submitted papers for publication. ? The many people who have given their support to the Hinckley Institute of Politics. ? Hinckley Institute of Politics Managing Editor Courtney McBeth and Hinckley Institute Staff. 2 EDITORS' NOTES GENERAL SUBMISSION GUIDELINES The Hinckley Journal of Politics welcomes submissions from University of Utah undergraduate students of any discipline, members of the faculty, and Utah's public officials of any capacity. Any political science-related topic is acceptable. The scope can range from university issues to international issues. Papers must adhere to the following submission guidelines to be considered for publication. 5. STYLE GUIDELINES: Papers must adhere to the Publication Manual of the American Psychological Association (APA style) for intext citations, referencing, and submission/publication format. A style guideline is available at the Hinckley Institute of Politics or online at the Hinckley Institute of Politics website under Publications. 6. REVIEW AND NOTIFICATION PROCEDURES: SUBMISSION GUIDELINES FOR STUDENTS 1. SUBMISSION COPIES: Authors must submit one hard copy of their paper. The editors kindly request that authors submit a maximum of three papers for consideration each year. Submissions will be reviewed by the Journal editors, members of the editorial board, and faculty advisors. Submission of a paper does not guarantee publication. Papers that do not adhere to submission and style guidelines will not be considered for publication. Acceptance to the Journal is competitive. The editors will notify potential authors when the decision has been made as to which papers have been selected for publication. 2. SUBMISSION COVER PAGE: The first page of the paper should include the author's name, email, telephone number, and full address; the title of the paper; and an abstract of the paper approximately 150 words in length. SUBMISSION GUIDELINES FOR PUBLIC OFFICIALS: The Journal will consider for publication essays written by national, state, and local public officials. For paper guidelines, public officials may contact the Journal editors. CORRESPONDENCE MAY BE SENT TO: University of Utah Hinckley Institute of Politics 260 South Central Campus Drive Room 253 Salt Lake City, UT 84112-9151 Phone: [phone] Fax: [phone] Email: [e-mail] 3. PAPER LENGTH: Papers should be between 10 and 35 pages in length. 4. PAPER FORMAT: Papers should be formatted as follows: ? Double-spaced (exceptions: tables and charts). ? Number all pages in the upper right-hand corner of each page except the first page. ? Use single column format with 1" margins on the top, bottom, left, and right. ? Print on one side of the paper. ? Use 12 point Times New Roman font. ? The author's name should appear on the cover page only and not on any subsequent pages. 3 ABOUT THE HINCKLEY INSTITUTE OF POLITICS ROBERT H. HINCKLEY A man of vision and foresight, a 20th century pioneer, a philanthropist, an entrepreneur, and an untiring builder of education and of the American political system--all are apt descriptions of Robert H. Hinckley, a Utah native and tireless public servant. Robert H. Hinckley began his political career as a state legislator from Sanpete County and a mayor of Mount Pleasant. Hinckley then rose to serve as the Utah director for the New Deal program under President Franklin D. Roosevelt. Hinckley went on to serve in various capacities in Washington, D.C., from 1938 to 1946 and again in 1948. During those years he established and directed the Civilian Pilot Training Program, served as Assistant Secretary of Commerce for Air, and directed the Office of Contract Settlement after WWII. In these positions Hinckley proved himself to be, as one of his colleagues stated, "One of the real heroes of the Second World War." Also in 1946, Hinckley and Edward Noble jointly founded the American Broadcasting Company (ABC), and over the next two decades helped to build this company into the major television network it is today. Spurred by the adverse political climate of the `40s, `50s, and `60s, Hinckley recognized the need to demonstrate that politics was "honorable, decent and necessary," and to encourage young people to get involved in the political process. After viewing programs at Harvard, Rutgers and the University of Mississippi, Hinckley believed the time was right for an institute of politics at the University of Utah. So in 1965, through a major contribution of his own and a generous bequest from the Noble Foundation, Robert H. Hinckley established the Hinckley Institute of Politics to promote respect for practical politics and to teach the principle of citizen involvement in government. "Every student a politician" was Hinckley's dream. The Hinckley Institute of Politics strives to fulfill that dream by sponsoring internships, scholarships, forums, mentoring and a minor in Campaign Management. Today, 42 years later, Hinckley's dream is a reality. More than 4,000 students have participated in programs he made possible through the Hinckley Institute of Politics. Many of these students have gone on to serve as legislators, members of Congress, government staffers, local officials, and judges. All participants have, in some measure, become informed, active citizens. Reflecting on all of his accomplishments, Robert H. Hinckley said, "The Hinckley Institute is one of the most important things I will have ever done." 4 ABOUT THE HINCKLEY INSTITUTE OF POLITICS HINCKLEY INSTITUTE OF POLITICS UNIVERSITY OF UTAH The Hinckley Institute of Politics at the University of Utah is a bipartisan institute dedicated to engaging students in governmental, civic, and political processes; promoting a better understanding and appreciation of politics; and training ethical and visionary students for service in the American political system. Robert H. Hinckley founded the Hinckley Institute of Politics in 1965 with the vision to, "teach students respect for practical politics and the principle of citizen involvement in government." Since it's founding, the Hinckley Institute has provided a wide range of programs for students, public school teachers and the general public including: internships, courses, forums, scholarships and mentoring. The Hinckley Institute places emphasis on providing opportunities for practical experience in politics. INTERNSHIP PROGRAM A nationally recognized program and the heart of the Hinckley Institute, the Hinckley internship program provides internship scholarships and places over 200 students every year in political and government offices, non-profit organizations, campaigns, and think tanks. The Institute provides internship opportunities to students from all majors for academic credit in Washington, D.C., at the Utah State Legislature, in local offices and campaigns, and internationally. CAMPAIGN MANAGEMENT MINOR The Hinckley Institute of Politics offers an undergraduate minor in Campaign Management designed to provide undergraduate students the opportunity to learn the theory and practices that will allow them to be effective participants in election and advocacy campaigns. Students are required to complete a political internship and an interdisciplinary series of courses in areas such as campaign management; interest groups and lobbying; voting, elections and public opinion; media; and other practical politics. PUBLIC FORUMS AND EVENTS The Hinckley Institute hosts weekly Hinckley Forums where political speakers address public audiences in the Hinckley Caucus Room. Hinckley Forums enable students, faculty, and community members to discuss a broad range of political concepts with local, national, and international politicians, ambassadors, activists, and academics. The Institute also co-hosts national conferences on campaign finance. Past guests include Presidents Bill Clinton and Gerald Ford; Senators Orrin Hatch, John McCain, and Harry Reid; Utah Governor Michael Leavitt; and many other notable politicians and professionals. The speeches are broadcast on KUER 90.1 FM radio and KUED TV. SCHOLARSHIPS AND LOANS The Hinckley Institute provides substantial financial aid to students through the Robert H. Hinckley, Abrelia Clarissa Hinckley, Anne and John Hinckley, Senator Pete Suazo, and Scott M. Matheson scholarship funds. The Hinckley Institute is also the University of Utah representative for the Harry S. Truman Congressional Scholarship and the James Madison Fellowship--two of America's most prestigious scholarships. HUNTSMAN SEMINAR FOR TEACHERS The Huntsman Seminar in Constitutional Government for Teachers is a week long seminar sponsored by the Huntsman Corporation. The primary focus of the seminar is to improve the quality of civic education in Utah schools by bringing Utah educators together with political experts and visiting politicians to discuss current events in Utah and American politics. The Huntsman Seminar is truly a unique opportunity for teachers to gain an in-depth understanding of local and national political issues. The Hinckley Institute of Politics is located in 253 OSH For Further Information call [phone] DEPARTMENT OF POLITICAL SCIENCE The Department of Political Science values its relationship with the Hinckley Institute for the opportunities the Institute provides students to enrich their academic studies with experience in practical politics. The Institute's programs complement the academic offerings of the Political Science Department. Courses are available in five subfields of the discipline: American Politics, International Relations, Comparative Politics, Political Theory, and Public Administration. For undergraduate students, the Department offers a major with B.A. and B.S. degrees and a teaching minor. Undergraduate certificate programs in International Relations, Public Administration, and Practical Politics are open to both majors and non-majors. At the graduate level, the Department offers M.A. and M.S. degrees, including the Master of Public Administration, Master of Public Policy, and the Ph.D. degree. Dual degrees are available at the graduate level with Educational Administration, Law, Social Work, and Health Services Administration. The Department has several undergraduate scholarships, both need-based and merit-based available to entering freshmen and continuing students. The Political Science SAC (Student Advisory Committee) and Pi Sigma Alpha honorary society provide opportunities for students to get involved in departmental activities. If you have questions about the Department and its programs, contact the office at 252 Orson Spencer Hall, 581-7031. 5 IN MEMORY OF DR. R.J. SNOW (1937-2006) The Hinckley Institute joins thousands of former colleagues, students and interns in mourning the loss of Dr. R.J. Snow, the second director of the Hinckley Institute of Politics, serving from 1975 to 1985. R.J. was an extraordinary scholar and administrator and a mentor, friend and example to many. While his loss is painful and we will miss him dearly, he leaves a lasting legacy of love for our country and unmatched devotion to students and higher education. THE LEGACY OF R.J. SNOW "The people who leave the most lasting legacies are often those who don't worry about such things while they're alive. Such seems to be the case with R.J. Snow, the former University of Utah and Brigham Young University vice president who died on Tuesday in an automobile accident near his home. Snow, 68, was just preparing to teach his final political science course this summer before retiring. At a time when nerves in the state and nation are strained and tensions are often pulled taut, the loss of R.J. Snow is like the loss of a great athlete during crunch time. He was taken at a crucial moment. He was at the top of his game. Still, given all that, one hopes the life he lived will now resonate even stronger; that those who are left to grapple with the problems of politics, education and society will find his memory and meaningful example -- his legacy -- calling forth in themselves R.J. Snow's hallmark decency and civility." Deseret Morning News, June 9, 2006. HINCKLEY INSTITUTE DIRECTORS REMEMBER THEIR COLLEAGUE AND FRIEND Hinckley Institute Director Kirk L. Jowers: "R.J. was a great mentor, friend, and example. The love he showed for the students and for our country has been his lasting legacy at the Hinckley Institute. I join thousands of former students and interns in mourning his passing." Hinckley Institute Director Ted Wilson: "He had a wonderful way about him. He would try to put salve on the wounds and balm on the situations to make the world better. He was very low key but very smart. He just really loved people." Hinckley Institute founding Director J.D. Williams: "I so admired him as a student, treasured him as a colleague, and stood in awe of his qualities as a husband to Marilyn and father to four magnificent children. If one wants to know why teaching has been a great career, it's because I knew R.J. Snow." 6 HINCKLEY JOURNAL OF POLITICS 2007 Warming up to Credit Freeze Laws: The Case of Utah W. Brett Barrus The high-profile personal information data breaches of 2005 drew considerable public attention to the growing crime of identity theft. In order to equip consumers with tools for ID theft prevention, several states enacted credit freeze laws. Originating in California in 2001, these types of laws allow consumers to have more control over who can access their credit reports by placing a "freeze" on their records. There has been substantial debate regarding the merits of credit freezes. The credit reporting industry sees this process as unnecessary and "overkill," touting their own fraud alerts services as sufficient to protect consumers. Consumer advocates, however, view these laws as one of the strongest protections consumers can have against abuse of their personal credit information. This study advances understanding of credit freeze laws by exploring the main arguments for and against them and detailing the history of Utah's unique credit freeze law. This study identifies the key factors that aided the law's passage in 2006 despite having failed in 2005. This is accomplished through interviews of individuals directly involved with the passage of the law in 2006 and relevant literature in periodicals and government reports. The discussion of Utah's law emphasizes the differences between it and credit freeze laws passed in other states as well as proposed national legislation. Finally, this study speculates on the future of credit freeze laws in Utah and nationally. The passage of Utah's law with its unique 15-minute freeze feature has created an intriguing situation for other states and the credit industry. It has in essence drawn a line in the sand -- for other states, the credit bureaus, and the federal government -- to cross over or retreat from in determining national policy regarding the future of credit freeze laws. INTRODUCTION I n the 2006 Utah legislative session, lawmakers concluded a two-year struggle to determine whether a "credit freeze" would become a viable identity theft prevention option for Utah's consumers. The goal of this legislation was to limit third-party access to a consumer's credit information to only consumer-designated vendors. In doing so, the law would potentially prevent criminals from committing the most common type of identity theft ? the opening of fraudulent credit accounts and loans. This type of legislation has become increasingly common in the wake of high-profile data breaches in such private and public organizations as ChoicePoint, the Department of Veteran's Affairs, and DSW shoe warehouse. Utah's law also contained a 15-minute, credit "thaw" feature that established this law as particularly unique. Making this "thaw" part of the bill was instrumental in gaining enough support to pass the legislation. Utah's law is being heralded as a template for other states but now all state cred- it freeze laws are being threatened by national legislation that could preempt these state laws. In this paper, I will explain what credit freeze laws are and the main arguments for and against them. I will then relate the history of Utah's credit freeze law focusing on the key factors that aided its passage in 2006 despite having failed in 2005. In the course of this discussion, I will emphasize the differences between Utah's law and credit freeze laws passed in other states and proposed national legislation. Finally, I will forecast the probable future of credit freeze laws in Utah and nationally. The type of legislation that I will be discussing has been alternately called a credit freeze and a security freeze in the media, research and in the legislation. For consistency I will use the term "credit freeze" throughout the paper except where the term "security freeze" is used in a direct quotation. IDENTITY THEFT & CREDIT FREEZES The definition of what constitutes identity theft plays an 7 WARMING UP TO CREDIT FREEZE LAWS: THE CASE OF UTAH W. Brett Barrus important part in how legislation is crafted to prevent and prosecute it. According to the Fair Credit Reporting Act (FCRA) of 2001, "the term `identity theft' means a fraud committed using the identifying information of another person, subject to such further definition as the Commission may prescribe, by regulation". This definition, part of the 2003 amendments to the Act, only applied to crimes after they were committed. Since this amendment to the FCRA, the definition has been further amended by the Federal Trade Commission (FTC) in Regulation 16 part 603, to include the "attempt to commit fraud." This addition has opened the door for prosecution against those who steal personal information before they use it fraudulently. This focus on prevention has also encouraged lawmakers to adopt strong laws aimed at limiting unauthorized access to personal information. Items of personal information that are commonly stolen include legal names, social security numbers, bank account numbers, and credit information, such as card and account numbers. Using this information, criminals are able to perpetrate several types of crimes. Typically, these are divided into crimes involving the use of existing credit cards or credit card numbers, use of existing non-credit card accounts or account numbers, and the creating of new fraudulent accounts. Credit freezes are designed to prevent this last form of identity theft by making it impossible for criminals to use a consumer's stolen information to gain a new fraudulent account. There is great deal of variance when it comes to quantifying the number of victims who have had their identities stolen and used to establish fake accounts. This variance is due to several challenges in collecting data. First, many victims of identity theft are not typically aware that they are victims for months, or even years. Secondly, consumers who do have their identities stolen are often victims of multiple types of fraud. Even the most conservative estimates show that identity theft is a common and costly crime. In 2004, a Bureau of Justice Statistics report claimed that 3,589,100 households reported that they discovered they were a victim of some form of identity theft in the last six months. Of these incidents, 538,700, or 15% of reporting households, involved the creation of new fraudulent accounts (Baum, 2006). An FTC survey of 4057 citizens found that 4.7% of those interviewed had been a victim of identity theft in the last 5 years in which their information was used to create a new fraudulent account. The findings of the survey also suggest that nearly 3.25 million Americans are victimized in this type of crime yearly (Synovate, 2003, p. 4). It is apparent from these statistics that a significant portion of identity theft crimes are committed by creating new accounts. Identity theft is also a very costly crime. The most common types of fraud, opening fraudulent accounts and unauthorized use of existing accounts, directly involve the pilfering of consumers' funds. According to the FTC's survey: "On average, victims of "New Accounts & Other Frauds" ID Theft indicated that the person or persons who misused the victim's personal information had obtained money or goods and services valued at $10,200 using the victim's information. This result suggests that the total loss to businesses, including financial institutions, from this type of ID Theft was $33 billion in the last year (Synovate, 2003, p. 5)." Furthermore, identity theft is also very costly for consumers to correct, not only in dollars but in time. The FTC estimates that "on average, victims of the `New Accounts and Other Frauds' form of ID Theft spent 60 hours resolving their problems," suggesting that nearly 194 million hours were spent in total (Synovate, 2003, p. 6). Credit or credit freeze laws are specifically designed to address forms of identity theft involving the creation of new accounts. The typical credit freeze law follows a simple model; Consumers place a freeze on their reports, thereby limiting access to the report by creditors. Credit bureaus are required to unfreeze the report at the request of the consumer. After providing some type of security code, the report is unfrozen or thawed for a specific period of time or for a specific creditor. The thawing and freezing typically is done at a reasonable cost to the consumer. In essence, any potential criminal armed with an individual's information would not be able to create a fraudulent account because the reports would be frozen and the criminal would not have the access code to thaw them. CREDIT FREEZE LEGISLATION IN RESPONSE TO NATIONAL DATA BREACHES In the wake of the large ChoicePoint and LexisNexis data breaches of 2005, a frenzy of lawmaking within the individual U.S. states produced various credit or credit freeze laws. In fact, many bills addressing identity theft had been or were in the process of becoming laws at the time of these breaches. Identity theft laws are not entirely new. Federal laws making identity theft illegal have been in effect since the 1998 passage of the Identity theft and Assumption Deterrence Act. But the sheer scale of the breaches caused something of a panic and the public outcry turned these incidents into catalysts for stronger and more prolific legislation. These incidents raised awareness of the issue and revealed the large hole in policy related to identity theft. Most prominently, issues concerning the notification requirements surrounding such breaches and possible future preventative measures became the focus of debate. In the years after the initial incidents, many states, including Utah, passed their own notification requirements and credit freeze laws as preventative measures. Prior to the data breaches of 2005, only California and Texas had freeze laws in effect, though several other states had laws under consideration (see Fig 1.1). The first credit freeze law was passed in California in 2001 in combination with another law specifying the terms in which businesses were to disclose breaches and losses of personal information (U.S. PIRG). The law served as a model for laws to come and was the standard by which consumer notification of the LexisNexis and ChoicePoint breaches occurred. Within a year of these high-profile breaches, 23 states had passed laws 8 HINCKLEY JOURNAL OF POLITICS 2007 mandating the terms of credit freezes and 34 states had laws specifying data breach notifications (U.S. PIRG). Currently, there are 45 states with notification laws and 26 states with credit freeze laws. The speed with which the states passed their legislation as well as the general newness of these types of laws, has led to significant differences between the various states' laws. While the general operation of these laws is similar, there are several variable parts of each law. States have all made different decisions regarding the coverage, cost, and the duration of freezes and thaws. The differences in these state laws have a large effect on the preventative ability of a particular law and subsequently, the level and sources of political support. This lawmaking resulted in 26 states which currently have credit freeze laws, some of which are substantially different from one another. This so-called "patchwork" of laws has led the credit reporting agencies, who generally oppose credit freeze legislation, and some national lawmakers to push for a national law preempting the states' laws. Later, I will discuss examples of national laws under consideration and what effect they may have on state laws. Currently, there is considerable debate regarding the part that credit freeze laws should play in protecting consumers. The three major credit bureaus that produce the vast majority of credit reports are Experian, Equifax, and Transunion. These corporations have typically favored promoting their own identity theft prevention and account monitoring services over any sort of credit freeze legislation. Whereas credit freeze laws only dictate the actions of the three reporting bureaus which collect and maintain the information in credit reports, the notification laws passed along with many credit freeze laws are aimed at both credit bureaus and creditors who buy information from them. How both of these laws are carried out will potentially have a large effect on the security of consumers' personal information and credit. THE ARGUMENTS REGARDING CREDIT FREEZE LAWS The largest point of variance among the state laws pertains to who is permitted to place a freeze on their credit information. Currently, 5 of the 26 states with credit freeze laws only allow victims of identity theft to place freezes on their accounts. Washington is the only state that allows credit freezes to consumers on the condition that they are potential victims of identity theft. They must have received notification that their personal information may have been compromised due to a data breach before they can freeze their files (see Fig 1.1). Opponents of credit freeze cite that only individuals who have been notified that they could be at risk of identity theft need a credit freeze. J. Craig Sherman, vice President for the National Retail Federation, states: "Our concern is that the credit freeze issue has become overkill, because most consumers are never going to be the victims of ID theft. If consumers place a credit freeze on their files, it can cause difficulties when trying to purchase homes, cars or even opening simple lines of credit at a department store (Hunt & Arnold, 2006)." The justification for this view is that the small number of people who do become victims of identity theft (and who discover it and file a report) will be able to prevent further abuse of their information by freezing their account. Credit reporting agencies also will save time and money if they only have to deal with a minimal number of consumers requesting credit freezes. Proponents of credit freeze laws, in particular those laws that apply to all consumers, feel that by only allowing victims to freeze their reports the purpose of the legislation is defeated. "It's like telling someone that they can't put a lock on their door until someone breaks in and steals their stuff," explained Utah Deputy Attorney General Kirk Torgensen (Torgensen, 2007). Illinois initially passed a credit freeze law that only applied to victims of identity theft but in 2005 amended the law to include all consumers. Michelle Jun, a staff attorney for Consumers Union's Financial Privacy Now campaign, spoke about the benefits of this new amendment: "Illinois' security law is stronger than other existing safeguards available to consumers. Federal law allows identity theft victims to put fraud alerts on their credit files, and consumers can pay for credit monitoring services. But this won't erase the damage that has been done by the time they discover their identity has been stolen (Sun-Times News Group, 2007)." Credit bureaus often tout their fraud alert services as an already existing tool to combat identity theft, but some consumer advocacy groups feel that fraud alerts are not effective preventative measures. In 2003, the Fair and Accurate Credit Transactions Act (FACT Act) was passed and among its effects was the codifying of a system of alerts that consumers could place on their reports (The White House, 2003). The first was an initial report that was placed on a consumer's file for 90 days. It requires creditors to use "reasonable procedures" to protect the consumer from identity theft (Consumers Union, 2003). There is considerable debate as to what "reasonable procedures" entail. This may vary between agencies and depends entirely on the in-house policies of the reporting agencies. There is also an extended alert that will last up to 7 years. In both cases, the procedures required to protect consumers are not detailed. Consumers inquiring about how to use fraud alerts were given the following advice by Maxine Sweet, Experian's vice president of public education. Sweet said, "When you are a fraud or identity theft victim, or have good reason to believe you may be, you can request an initial security alert be added to your credit history. The alert tells lenders that you are or may be a victim of identity theft and asks that they take additional precautions before granting credit in your name (Sweet, Ask Max credit advice: Difference between frad alert, victim statement and security freeze, 2005)." Consumers may add a phone number to this alert so that they may be contacted to approve the issuance of credit in their name. Prior to the FACT Act, credit bureaus were not required to act on these requests and are still only required to "flag" the report though the law does not require lenders to 9 WARMING UP TO CREDIT FREEZE LAWS: THE CASE OF UTAH W. Brett Barrus call consumers before releasing a report (Sweet, Ask Max credit advice: Difference between frad alert, victim statement and security freeze, 2005). Linda Foley of the Identity Resource Center stated in 2005 that fraud alerts have been found by the Center to work only 50%-70% of the time (Foley, 2004). This may be because credit bureaus are not actually heeding the alerts. According to Equifax's (one of the three credit bureaus) "FAQs for Consumers" website: "When you, or someone else, attempts to open a credit account the lender should contact you by phone to verify that you want to open the new account. If you cannot be reached by phone, the credit account should not be opened. However, a creditor is not required by law to contact you if you have a fraud alert in place. Fraud alerts can legally be ignored by creditors" [emphasis added] (Equifax). With fraud alerts as an uncertain tool, a credit freeze seems to be a more reliable and effective alternative. Freezes are also seen as a stronger tool, requiring not just notification of the opening of new accounts but preventing the opening of new accounts without a consumer's explicit permission to do so. Another point of difference among the state laws deals with the cost of placing freezes and initiating thaws on a consumer's report. Utah's law cites "reasonable fees" to be exacted when consumers are both placing the freeze and temporarily thawing it. Currently, a majority of states are limiting the imposable fees to 10 dollars per credit bureau to institute a freeze and five to 10 dollars per bureau to un-freeze a report (Fig. 1.1). Those states that only allow victims of identity theft to freeze their reports do not charge for this service, with the exception of Texas which limits the fee to a one-time eight-dollar charge that is to be honored by all three bureaus. Addressing the issuance of fees, the Information Policy Institute explained the purpose of these fees: "File maintenance costs are typically offset by selling credit files to those entities with an FCRA defined permissible purpose. Credit files that have been frozen cannot be sold. As such, a reasonable fee structure must take into account the scope of the costs associated with freezing a file--both for the service of the credit file freeze and for the service of account maintenance (Information Policy Institute, 2005)." This argument assumes that frozen files would have been sold had they not been frozen. It does not take into account that the type of consumer who places a freeze on their file is not likely to seek new accounts frequently. Subsequently, their file would not have likely been sold to any potential creditors. Also, most credit freeze laws (including Utah's) do allow entities approved by the FCRA to update, amend and add reports to frozen files for the purposes of keeping files current. Therefore, the only real cost that is associated with a credit freeze is the manpower and time required to freeze and unfreeze accounts. Opponents of credit freeze laws have also argued that this type of law may actually mask identity theft from consumers. Experian has also asserted in their advice column that identity thieves are now using credit freezes to lock consumers out of their information. They stated, "Armed with the knowledge that the credit file is frozen, the identity thief uses the stolen identity to commit other types of fraud, effectively masking the identity theft (Sweet, Ask Max credit advice: Frozen credit file interferes with wedding plans, 2005)" This alarmist scenario is likely unwarranted. According to the Information Policy Institute, "...ID thieves are typically detected either by their victims or by the lenders monitoring account activity, the enactment of a rational federal file freeze law [or state law] is not likely to directly impact either of these two detection mechanisms (Information Policy Institute, 2005)." Consumer's will have a PIN number or password that prevents thieves from thawing their file and will still have access to all of their current credit file monitoring rights and services, including a yearly free report from each agency. Further, if consumers do loose their PIN numbers or passwords, or somehow loose access to their account, they can obtain a new one by providing identifying information, such as a driver's license and social security card to the reporting agencies. I was unable to find any documented instances in which a thief was able to mask their crime using a frozen file. Furthermore, it is difficult to imagine a scenario, given the nature of a credit freeze law, in which this deception could occur. The strongest argument that the credit bureaus may have against credit freeze laws involves the nature of their creation. Specifically, as it stands, states are being allowed to dictate to a large national industry how to conduct its business. These states are doing so with many differing requirements. The socalled "patchwork" of laws has led the credit reporting agencies, who generally oppose credit freeze legislation, and some national lawmakers to push for a national law preempting the states' laws. The implications of these actions will be discussed later in this analysis. Response to credit freeze laws has been somewhat ambivalent from industries like auto dealers, bankers, retailers, and other business that offer instant credit. These industries rely on a strong and trusting customer base and therefore have a vested interest in keeping their customers by preventing fraud. Further, they face potential losses associated with the purchase of goods on fraudulent accounts. At the same time, the instant lines of credit offered by retailers make up a significant part of their business. Frequently, these retailers offer discounts to consumers who open credit accounts at the checkout line. The auto industry also makes the claim that many of their sales rely on impulse buys, and without instant financing on site, they would lose a portion of their sales. Chris Hoofnagle, the west coast Director of the Electronic Privacy Information Center (EPIC), pointedly described the relationship between these industries and the credit bureaus. He said, "The credit bureaus are creatures that serve the creditors and don't want any slowdown of instant credit (Hunt & 10 HINCKLEY JOURNAL OF POLITICS 2007 Arnold, 2006)." In the creation of Utah's law, the support of these industries was the deciding factor in persuading lawmakers to adopt the legislation. This support was hard won and relied on a feature of the law that was entirely new and unique to already recognized credit freeze laws. LEGISLATIVE HISTORY OF UTAH'S CREDIT FREEZE LAW The creation of Utah's own credit freeze law seemed to happen relatively quickly, only requiring two annual sessions of the legislature. In reality, it was the culmination of several years of research, planning and discussion. The law that was the eventual product of these events was, in comparison to the other states, revolutionary. It has now become a template for other states to follow and may prove to play a considerable role in the formation of national legislation. The impetus for Utah's credit freeze law came years before the high-profile security breaches of 2005. In October of 2003, the Utah Attorney General's Office held an Identity Theft Summit. Attendees included prosecutors, police officers, bankers, merchants, and legislators. Among the proposals regarding legal action to prevent identity theft was a discussion of credit freeze laws (Consumer Affairs, 2006). Laws in other states, namely California, and those under consideration in Vermont and New Jersey were analyzed to see if they would work in Utah (Torgensen, 2007). The Deputy Attorney General Kirk Torgensen began working with State Senator Carlene Walker to craft a bill that would protect consumers but also be favorable to business interests. Other stakeholders that worked closely with Senator Walker in promoting the bill included the AARP. The bill, S.B. 39, produced by this working group, allowed credit freezes for all consumers (not just victims only) and asserted that "reasonable fees" be charged to freeze and unfreeze a file. It also mandated that the thaw could take no longer than 3 days. The implementation date for this legislation was July 1, 2006. Substantively, the body of the bill was similar to California's law and to those being considered by other states at that time. The bill was introduced to the Utah State Senate on January 17, 2005 and was presented to the Senate Business and Labor Standing Committee on January 31, 2005. At this meeting, Senator Walker explained the nature of the bill assisted by Richard Hamp of the Attorney General's Office. Carter Livingston of AARP Utah and Francine Giani, Director of the Utah State Division of Consumer Protection, spoke in support of the bill during the meeting. Chantele Artman, representing the Consumer Data Industry Association, spoke in opposition to the bill. The bill was recommended to the floor of the Senate by a five to one vote. It is interesting to note that only one individual spoke against this legislation. In future committee meetings for S.B. 71, the bill presented in 2006, more resistance to the law was exhibited by the credit reporting agencies. Once the bill reached the Senate floor in 2005 there was a small debate on an amendment moving up the effective date of the bill to January 1, 2006 instead of July 1. The date was changed to January and then the next day moved back to July. This last action was done at the request of Senator Walker, who after discussions with the representatives of the credit bureaus, felt that the bureaus would need the extra time to effectively make the necessary adjustments in their business. The Senate voted unanimously to pass the bill without any other changes. The bill went on to pass favorably out of the House Business and Labor committee, though it was by a much smaller margin ? seven to five. At this point, the bill went to the Rules Committee to determine when it would be considered by the House of Representatives at large. According to Senator Walker, Kirk Torgensen, and Laura Polacheck, the Speaker of the House, Greg Curtis was approached by an influential friend and auto dealer with concerns about the bill. At the request of the auto dealer, the bill stayed in the Rules Committee and was not placed on the calendar to be considered during the rest of that legislative session (Polacheck, 2007) (Torgensen, 2007). Disappointed but not defeated, Senator Walker and members of the Attorney General's Office consulted with the auto dealer's association, as well as the retailers and bankers association to find a way to address the concerns of some members of the business community and still make the bill a strong protection for consumers. During the months in between sessions, these discussions led to some changes to the 2005 bill that would accommodate the concerns of business. The main change being the requirement of the 15 minute thaw. The biggest complaint from the auto dealers and other merchants was that credit freezing would hamper their business practices. Auto dealers in particular claimed that they relied on providing instant credit to shoppers who bought new cars on "impulse." The dealers also argued that individuals who had car accidents and needed a replacement car would be inconvenienced by having to wait 3 days to unfreeze their credit (Torgensen, 2007). In order to meet these concerns, a 15-minute credit unfreeze or thaw, was inserted as the new standard required by the bill and was eventually numbered S.B. 71. The requirement of a 15-minute thaw was envisioned to take the form of a website or toll free number that consumers could access or call and then present a PIN number or some other form of identification in order to unfreeze their account. Senator Walker described a meeting in which she presented this change to a group of influential auto dealers. She recalled that after she had explained this new measure that well known auto dealer, Larry H. Miller, told the group that this was an important protection for their customers and the right thing to do. Senator Walker claimed that this was a turning point in gaining support for her bill (Walker, 2006). With this new unfreeze requirement, former enemies of the legislation became allies. "Bankers, realtors, car dealers, and other merchants came together to help us craft a business- 11 WARMING UP TO CREDIT FREEZE LAWS: THE CASE OF UTAH W. Brett Barrus friendly plan that gets the job done," said Senator Walker (Walker, 2006). Virtually every other aspect of the law was the same as the 2005 proposal, including the coverage for all consumers and reasonable fees for the service. S.B. 71 was introduced into the Utah Senate during its 2006 general session on January 23, 2006. It was again heard in the Senate Business and Labor Committee on January 26 with a large contingent of government agencies and businesses speaking in favor of the bill. These proponents included Chris Kyler, CEO of the Utah Association of Realtors; Craig Bikmore from the Utah Auto Dealers Association; Jim Olsen, President of the Utah Retail Merchants Association; and Howard Headlee of the Utah Bankers Association. In total, there were eight individuals there to speak in favor of the bill. Outnumbered were the two lobbyists, Candace Daly and Craig Moody, representing the Consumer Data Industry Association. Not surprisingly, with the support of the business groups, the bill received a favorable recommendation by the committee by a vote of five to one and was sent to the Senate floor for further debate. It was approved by the Senate, again unanimously with an amendment requiring a redundant system that would enable the bureaus to unfreeze records within 15 minutes should their original system fail. They also eliminated routine maintenance as an excuse for not unfreezing records within 15 minutes. These amendments were approved and a substitute bill was introduced to the House. After being approved in the Senate, the bill needed only to be approved by the House of Representatives before it became law. This bill was being carefully watched by the reporting agencies and their representative organization, the Consumer Data Industry Association. As part of their political strategy, they waited to combat the law if and when it reached the House of Representatives. According to Candace Daly, there was not a lot of access for them to the Utah Senate and they felt that they had a better chance of stopping or at least lessening the impact of the legislation on their industry in the House. In fact, while the bill was in the House, they were able to get all of the amendments to the bill that they sought (Daly, 2007). During the first committee hearing in the House, representatives from the three reporting agencies as well as a representative from the National Association of Credit Management traveled to Utah to speak against the bill in its first House Committee Hearing. Only Senator Walker was able to attend the hearing, leaving only the opponents of the law to testify. Those who spoke against the bill that day were Craig Moody and Chantele Mack; Murray Johnston, Director of State Government Affairs, Experian; Eric Rosenburg, Transunion; Julie Long, Equifax; Scott W. Lee, General Counsel, NCAM Intermountain. Without any other support Senator Walker deferred her comments to another committee meeting when the proponents of the law could speak for it. On February 17, 2006, the House Business and Labor committee heard testimony again regarding S.B. 71 after it was replaced by the 3rd substitute bill, changing the enact- ment date of the law. Chris Kyler of the Utah Association of Realtors and Craig Bickmore of the Utah Auto Retailers Association spoke in favor of the bill, with Dean Wangsgarn, President of the National Association of Credit Management, and Candace Daly representing the Consumer Data Industry, speaking against it. The committee approved the bill nine to four and sent it to the floor of the House for a vote. On February 27, two days before the legislative general session adjourned, the bill passed the House unanimously and the Senate concurred unanimously with all of the amendments the next day. S.B. 71 was signed into law by the Governor John Huntsman Jr. on March 20, 2006. One of the most debated issues during this session was the enactment date of the bill. The original version of S.B 71 had September 1, 2006 as the enactment date with September 1, 2008 as the date that violations of the law could be enforced by the Attorney General. The 2nd Substitute S.B. 71 amended those dates to make the entire bill inactive until September 2007. The 3rd substitute S.B. 71 had extended that date to September 1, 2008. These substitutions were made by Senator Walker and the attorney general's office at the request of the credit bureaus. The credit bureaus reported that they did not have the systems currently available to meet the criteria of the law and would need at least two years to be able to accommodate consumers who wished to freeze their files and unfreeze them according to Utah's statute. The Senate allowed for the delay in implementation requested by the credit reporting agencies but Senator Walker now regrets that action. "I think we were snookered," said Senator Walker (KUTV News, 2006). By requesting such a large window of time from the passage of the state law until its enactment date, Senator Walker feels that the bureaus were just trying to buy more time to push for national legislation preempting the state's law. In response to Senator Walker's claim, Candace Daly, one of the lobbyists for the Consumer Data Industry Association replied, "That is absolutely not true." She went on to explain that each of the credit bureaus has its own system and cannot share information under collusion and anti-trust laws (Daly, 2007). This means that they will each separately have to develop a system to accommodate for Utah's near instant thaw requirement which will take some time. Deputy Attorney General Kirk Torgensen feels that there may be some legitimacy to the credit bureaus' claim. "We are dictating to them how to run their business," said Torgensen. He acknowledges that the changes necessary to comply with Utah's law could require a large effort. "There are systems that might necessitate development and procedural changes to accommodate the new law's requirements and two years may actually be reasonable (Torgensen, 2007)." Regardless of their motivation for extending the implementation date, the credit reporting agencies been given time to work with the federal government on a consistent national law. 12 HINCKLEY JOURNAL OF POLITICS 2007 PROPOSED NATIONAL LAWS The credit bureaus have been strong supporters of national laws that would create a lone statute and preempt state laws already passed, including Utah's law. In fact, several of the laws proposed in the 2006 session of Congress would have eliminated credit freezes altogether. While none of these bills actually passed, they demonstrated that a national standard is likely to be established soon. A review of the proposed national laws reveals the strength of the credit bureau's influence and paints an uncertain picture for the future of Utah's law. From the inception of new identity theft laws by the states beginning in 2005, there have been arguments for a national, comprehensive law addressing identity security. Norm Magnuson, Vice President of the Consumer Data Industry Association, in January of 2007 stated the following concerning credit freeze laws, "At the start, there was no question we looked at them as problematic. The only thing we're looking for now is consistency (Gelles, 2007)." Think tanks, including the Information Policy Institute also believe that a consistent national standard is the best policy option for both consumers and the credit reporting industry (Information Policy Institute, 2005). In 2006, Kirk Torgensen and all 50 of the state Attorney General's offices wrote letters urging congress to not preempt their own states legislation when it comes to data security. Currently eight states are in the process of adopting the 15 minute unfreeze including California (Torgensen, 2007) (California Progress Report, 2006). Debra Bowen, the California legislator that sponsored the first credit freeze bill, commented, "now that the credit bureaus are being required to give people in other states the ability to lift a freeze in 15 minutes, it only makes sense to give California shoppers that same right (California Progress Report, 2006)." If California and other states were to adopt the same standard as Utah, a great deal more pressure would be put on the federal government to adopt this same standard as part of any federal legislation. This would achieve the consistency that the consumer data industry desires but will most likely not be embraced by the industry as a large part of their data protection policies. Further, if states do not adopt this same standard quickly, federal legislation may reflect the current standard of three days. From the bills considered in 2006, it is difficult to determine conclusively what form federal legislation will take. There were five separate bills focused on identity theft that included sections attempting to regulate credit freezes. These were S. 1408, S. 1780, S. 3568, H.R. 4127 and H.R. 3997 (see Fig. 2 for a comparison of these bills). While none of these bills were passed they do provide an interesting look at how polarized views are on credit freezes and how they should be administered, if at all. Legislation in the Senate including S. 3568 sponsored by Utah's Senator Robert Bennett stalled quickly after being introduced in committee. Meanwhile, the two most prominent bills to be discussed in 2006 were developed by the House Energy and Commerce Committee. These were bills H.R. 4127 and H.R. 3997. Both of these bills are drastically different in how they approach the credit freeze issue. H.R. 3997 would have preempted existing state laws and made credit freezes available only to identity theft victims. This bill, among other statues seen as harmful to consumers, sought to establish a national standard for credit freezes. Consumer advocacy groups were angered by its approval by the committee. "It's shocking that at a time when data breaches are in the headlines daily and consumers are at greater risk than ever [of] identity theft, Congress would choose to vote on a bill that would strip consumers of their existing identity-theft protections, " said Susanna Montezemolo, a policy analyst with Consumers Union (Azulay, 2006). The law would also have weakened the requirements imposed on businesses to disclose security breaches. According to Ed. Mierzwinski, Director of U.S. Public Interest Group's consumer program, "This is the worst data bill ever. It is truly a bad bill (Lazarus, 2006)." Lawmakers who voted in favor of the bill were interested in creating a national standard according to chief author, Rep. Steve LaTourette, a republican from Ohio (Lazarus, 2006). This bill enjoyed strong support from the credit reporting agencies that, according the Center for Responsive Politics, spent nearly 30 million dollars in 2005 on lobbying (Azulay, 2006). Soon after H.R. 3997 exited committee, H.R. 4127, which was seen to be much more consumer friendly, passed the committee in a unanimous 41-0 vote (Montezemolo & Hillebrand, 2006). This bill would have allowed states to continue enforcing any currently passed state laws concerning fraud. It would also have not made any mandate on the terms of security freezes and required stricter notification requirements in case of security breaches. This bill has been renumbered as H.R. 958 in the 110th session of congress and should come up for consideration this year. In 2006, the FTC also negotiated the largest civil suit ever ? a 10 million-dollar suit against Choice Point in response to its security breach (Montezemolo & Hillebrand, 2006). This, along with the creation of the Consumer Privacy Legislative Forum by several high-tech companies, will provide further attention and pressure on lawmakers to address identity theft concerns (Stevens, 2007). With security freeze cited as a high legislative priority, despite the other priorities like the Iraq war, there is a good chance that the 110th Congress will see further legislation addressing credit freezes and it will be proposed nationally. FUTURE OF UTAH'S LAW The future of Utah's law in inextricably tied to the fate of the proposed federal laws. Utah's law will not take effect until September 2008. Until that time comes, Utah lawmakers and the Attorney General's office will have to plan for the implementation and regulation of the new statute including how to notify consumers and encourage them to signup for the service. Other serious questions yet to be answered include how 13 WARMING UP TO CREDIT FREEZE LAWS: THE CASE OF UTAH W. Brett Barrus much the freeze will cost Utahans and how to ensure compliance to the new standards by the industries. But at the present time, all eyes are really on Congress to see if all of the effort expended in 2007 will be for naught in 2008. While the law currently states that "reasonable fees" should be applied, it is still unsure what those fees will be. This will be up to the credit bureaus to determine. One scenario would have Utahan's paying considerable more to freeze their reports because the agencies would charge higher costs to creditors requesting consumers' reports. These higher costs would reflect an effort by the reporting agencies to recoup the costs of implementing a 15-minute thawing system. The cost for the freezes would not necessarily be higher, but the total cost for requesting a report (which is passed on to the consumer in application fees, closing costs, financing charges, etc.) would be higher (Daly, 2007). Without other states adopting the same standard, Utah may end up footing the bill for the new system. The Attorney General's office will be tasked with regulating how well the credit reporting agencies are complying with the new statutes and will be responsible for bringing any legal action against the credit agencies. Under Utah law, citizens can not directly seek legal redress if they have problems with their credit reports. This prevents consumers from directly seeking damages from the industry in instances where the law was not followed. This is seen to provide some level protection to the industry and allow them to be less strict in their implementation and conduct regarding these new procedures. One of the biggest questions yet to be answered is what will happen if the reporting agencies are not prepared to provide 15-minute thaws when the law comes into effect in 2008. There is currently some question as to whether each reporting agencies has the resources to develop a system (Daly, 2007) (Walker, 2006). When asked about bringing suit against the credit bureaus, Kirk Torgensen said that his main concern would be situations in which consumers had requested freezes and then they were not applied to their reports. He was not necessarily concerned with how quickly these reports were thawed when requested. Regardless of the application of the law, the 15-minute thaw would be enforceable by the law and could be subject to a civil suit brought by the Attorney General's Office (Torgensen, 2007). According to Candace Daly, there is a good chance that rather than be sued for violating the law, the reporting agencies will just refuse provide any services to Utah creditors (Daly, 2007). It seems unlikely that the credit reporting bureaus would decide against investing in a freezing/thawing system and then forgo doing business with all of their clients that provide credit in Utah. This seems especially unlikely since Experian, one of the three largest bureaus, has already developed a system. Responding to the passage of the Rhode Island credit freeze bill in July of 2006, Maxine Sweet said that Experian had already "spent many millions developing the system to process these [credit freezes]" and that they could be thawed in 15 minutes (Myers, 2006). While Experian appears ready for Utah's law to come into effect the other agencies may not be as prepared. As discussed earlier, it is certain that eventually a federal law addressing security freezes will be passed. This may happen soon rather than later. Two scenarios exist that would result in the survival of Utah's law. The first would be the passage of a national law like H.R. 4127 that would allow states to continue to enforce their current statutes. The second would be a national law that adopts the state's current standards, including the 15-minute thaw. This is only a likely scenario if other states, like California, begin to adopt Utah's same standard. CONCLUSION The passage of Utah's credit freeze law demonstrates several important aspects of the legislative approach to preventing identity theft. First, it illuminates the differing interests of consumers, creditors, and the agencies that gather personal financial information. Utah's case proved that compromise on the part of consumer advocacy groups to appease business interests does not have to weaken the protection these laws offer. By adopting the 15 minute thaw, lawmakers were able to make the law more convenient for consumers and palatable to businesses that offer credit. By bringing businesses on board to advocate for the law, Utah lawmakers were able to pass a law that had previously failed and make it more consumer friendly in the process. This consumer-business alliance had the effect, however, of alienating the consumer reporting agencies and may make the implementation of this new law very challenging. With the passage of Utah's stringent mandate on consumer reporting agencies, Utah has now placed a potential burden upon the entire data reporting industry. The consequences of this action are still to be seen. The law may result in higher costs for consumer credit or even the preemption of this state law by a federal statute. On the other hand, it may prove to be the first step in producing more consumer- and business-friendly freeze laws for the entire nation. State Senator Carlene Walker stated that Utah's credit freeze law "holds water" (KUTV News, 2006). In a state that is viewed as pro-business, this strong consumer legislation has made a statement. Secondly, the passage of credit freeze laws by many states and the subsequent conflicts with potential legislation expose the fuzzy line between the rights of states to protect their citizens and the responsibility of the federal government to regulate interstate commerce. In light of increasingly common breaches of personal information, states have acted more swiftly than the federal government in providing protective and preventative measures for their citizens. The result has been varying standards with which data reporting agencies must comply. While the agencies and some federal lawmakers have called for a single national standard, actually passing one 14 HINCKLEY JOURNAL OF POLITICS 2007 has been more difficult. Federal lawmakers have been reluctant to undo the work of the states. The hope of Kirk Torgenson and the other proponents of Utah's law is that other states will begin to adopt Utah's standard, thus building a strong case for federal law to adopt the same standard and not preempt the current state laws. Finally, the passage of Utah's law is only one step in what could be seen as the development of a comprehensive system for preventing identity theft. While consumers have previ- ously borne the responsibility of protecting their information, creditors and data reporting agencies are beginning to bear more of the burden. Credit freeze laws are examples of this shift in responsibility. The arguments nationally and within the states regarding credit freeze and other privacy-protection laws clearly demonstrate that more discussion is required to find the best solution for all stakeholders, the data reporting industry included. APPENDICES Fig. 1 Analysis of State Laws State Date Effective 1/1/2003 Eligibility Cost of Freeze Cost to Temporarily Lift Freeze $10 for a temporary date-range lift per credit reporting agency ($30 total); $12 ($36 total) to lift for one creditor per agency $10 to lift temporarily or permanently per credit reporting agency ($30 total); $12 to lift for one creditor per agency ($36 total) $10 to lift temporarily or permanently per credit reporting agency ($30 total); $12 to lift for one creditor per agency ($36 total) California Any Consumer No fee for identity theft victims; $10 for others to freeze at each ($30 total) Colorado 7/1/2006 Any Consumer No fee for first freeze; $10 at each credit reporting agency ($30 total) to place a second freeze $10 to freeze at each credit reporting agency ($30 total) Connecticut 1/1/2006 Any Consumer Delaware 1/1/03 subsequently amended 7/1/2006 Any Consumer No fee to victims of identity theft. Florida Any Consumer Hawaii 1/1/2007 Identity Theft Victims Only No fees for identity theft victims and individuals over the age of 65; up to $10 for others to freeze at each credit reporting agency ($30 total) No f ee s $10 to lift temporarily or permanently per credit reporting agency ($30 total) N o f ees Illinois Kansas 1/1/2006 *Any Consumer after 1/1/2007 1/1/2007 Any Consumer No f ees No f e e s Identity Theft Victims Only No f ee s N o f ees Kentucky 3/24/2006 Any Consumer No fees for identity theft victims; $10 for others to freeze at each credit reporting agency ($30 total) No fee for identity theft victims or persons age 62 or older; $10 for others to freeze credit at each credit reporting agency ($30 total) No fees for identity theft victims; up to $10 for others to freeze at each credit reporting agency ($30 total) $5 at each credit reporting agency ($15 total) $10 to lift temporarily or permanently per credit reporting agency ($30 total); $10 to have PIN reissued. $8 for a temporary lift per credit reporting agency ($24 total) Louisiana 7/1/2005 Any Consumer Maine 2/1/2006 Any Consumer $10 to lift temporarily or permanently per bureau ($30 total); $12 to lift for one creditor per bureau ($36 total) $5 at each credit reporting agency ($15 total) Minnesota 8/1/2006 Any Consumer 15 WARMING UP TO CREDIT FREEZE LAWS: THE CASE OF UTAH W. Brett Barrus Nevada 10/1/2005 Any Consumer No fees for identity theft victims; $15 for others to freeze at each credit reporting agency ($45 total) No fees for identity theft victims; up to $10 for others to freeze at each credit reporting agency ($30 total) No fee for initial freeze New Hampshire New Jersey 1/1/2007 Any Consumer $18 for a temporary lift per credit reporting agency ($54 total); $20 to lift for one creditor per agency ($60 total) $10 to lift temporarily or permanently per credit reporting agency ($30 total) 1/1/2006 Any Consumer $5 to remove, temporarily lift or have PIN reissued ($15 total); $5 to lift for one creditor per agency ($15 total) $5 at each credit reporting agency ($15 total) New York 11/1/2006 Any Consumer North Carolina 12/1/2005 Any Consumer No fees for initial freeze; further freezes $5 at each credit reporting agency ($15 total) to place a second freeze No fee for identity theft victims; $10 for others to freeze at each ($30 total) $10 to lift temporarily or permanently per credit reporting agency ($30 total) Oklahoma 1/1/2007 Any Consumer Pennsylvania 1/1/2007 Any Consumer No fees for identity theft victims and individuals over the age of 65; up to $10 for others to freeze at each credit reporting agency ($30 total) No fees for seniors 65+ years old $10 to lift temporarily or permanently per credit reporting agency ($30 total) No fees for seniors 65+ years old Rhode Island 1/1/2007 Any Consumer No fees for seniors 65+ years old No fees for seniors 65+ years old South Dakota 7/1/2006 Identity theft Victims only No fees. No fees. Texas 9/1/2003 Identity Theft Victims Only $8 to freeze; placement at one credit reporting agency must be honored by all "Reasonable fees" No fees to remove Utah 9/1/2008 Any Consumer "Reasonable fees"; Consumer can temporary lift or "thaw" freeze within 15 minutes of electronic request $5 at each credit reporting agency ($15 total) Vermont Washington 7/1/2005 *Any Consumer after 7/1/2006 7/24/2005 Any Consumer No fees for identity theft victims; up to $10 for others to freeze at each credit reporting agency ($30 total) Wisconsin 1/1/2007 Identity Theft Victims Only, Including Consumers Who Receive Notice of Security Breach of Computerized PI Any Consumer No f ee s N o f ees No fees for identity theft victims; up to $10 for others to freeze at each credit reporting agency ($30 total) $10 to lift temporarily or permanently per credit reporting agency ($30 total) 16 HINCKLEY JOURNAL OF POLITICS 2007 Fig. 2 Proposed Federal Identity Theft Laws 109th Congress (2006) (American Bankers Association, 2006) Bill HR 3997 Financial Data Protection Act Preemption Yes- credit freeze, data security, notice, mitigation. Credit freeze Yes ? based on VT law, only available to identity theft victims No Enforcement Functional regulator Criminal Penalties No HR 4127 Data Accountability and Trust Act (renumbered as HR 958 for 110th congress) S 1408 Identity Theft Protection Act Somewhat ? does not preempt consumer protection law enforcement by state AG or law dealing with fraud Yes ? state law on credit freeze, data security, notice, liability, and Social Security numbers Unclear FTC/ State AG/ functional regulators No Yes ? any consumer Exclusive by functional regulator State AG No S 1780 Personal Data Privacy and Security Act S 3568 Data Security Act (Bennett/Carper Bill) No Yes Yes ? data security, investigation, notice and mitigation No FTC and functional regulators No WORKS CITED American Bankers Association. (2006, June 30). Data Breach Legislation - Summary Chart. American Bankers Association. Azulay, J. (2006, July 24). "`Protection' Act would strip consumes of credit safeguards". Retrieved March 10, 2007, from Free Press Web site: http://freepress.net/news/16671 Baum, K. (2006). Bureau of Justice Statistics Bulletin. U.S. Department of Justice. California Progress Report. (2006, June). "Bill to Help `Put the Freeze' on ID Theft Faces Uphill Battle Today in California Assembly Committee". Retrieved February 24, 2007 , from Office of State Senator Debra Bowen Web site. Consumer Affairs. (2006, April 3). "Utah passes landmark consumer credit `freeze'". Retrieved March 10, 2007, from ConsumerAffairs Web site: http://www.consumeraffiars.com/news04/2006/03/ut_ credit_freeze.html Consumers Union. (2003). "The Fact Act Creates New Rights for Victims of Identity Theft". Retrieved March 20, 2007, from Consumer's Union Web site: http://www.consumersunion.org Daly, C. (2007, May 4). Lobbyist. (W. B. Barrus, Interviewer) Equifax. (n.d.). Equifax Credit Report FAQ. Retrieved March 3, 2007, from Equifax Web site: http://www.econsumer.equifax.com/consumer/sitepage.ehtml?forward=cs_csp_faqs#twentytwo Foley, L. (2004). "Credit/Security Freeze and Fraud Alert Information". Identity Theft Resource Center. Gelles, J. (2007, January). "Security `freeze' for credit reports" . Philadelphia Inquirer . Hunt, L., & Arnold, K. (2006, September 11). "Credit freezes for victims only?". Retrieved January 1, 2007, from Bankrate Web site: http://bankrate.com/brm/news/cc/20060911a1.asp Information Policy Institute. (2005). Credit File Freeze: Position Paper. New York: Information Policy Institute. KUTV News. (2006). Get Gephardt: New Credit Freeze Laws. Retrieved March 25, 2007, from KUTV 2 News Web site: http://kutv.com/consumer/local_story_173234626.html Lazarus, D. (2006, June 18). "Credit `Freeze' Under Fire". San Fransisco Chronicle . Montezemolo, S., & Hillebrand, G. (2006, March). "Consumers Union Applauds Unanimous Committee Vote to Protect Americans from Identity Theft". Retrieved March 25, 2007, from Consumers Union Web site: http://www.consumersunion.org/ 2006/03/003297.html Myers, N. (2006, July 8). "R.I. gives consumers right to freeze credit report". Retrieved February 10, 2007, from Rhode Island Public Research Interest Group Web site: http://ripirg.org/ RI.asp?id2=25385 Polacheck, L. (2007, March 12). Director of Advocacy, AARP. (W. B. Barrus, Interviewer) Stevens, G. M. (2007). Data Security: Federal Legislative Approaches. Washington D.C.: Congressional Research Service. Sun-Times News Group. (2007, January). "How to freeze out identity theives". Retrieved January 7, 2007, from Sun-Times Web site: http://www.suntimes.com/business/currency/185575.CST-FIN-ctheft25.article 17 WARMING UP TO CREDIT FREEZE LAWS: THE CASE OF UTAH W. Brett Barrus Sweet, M. (2005, May 4). Ask Max credit advice: Difference between frad alert, victim statement and security freeze. Retrieved February 24, 2007, from Experian: http://www.experian.com/ask_max/ max050405c.html Sweet, M. (2005). Ask Max credit advice: Frozen credit file interferes with wedding plans. Retrieved May 4, 2007, from Experian: http://www.experian.com/ask_max/max050405c.html Synovate. (2003). Federal Trade Commission - Identity Theft Survey Report. Federal Trade Commission. The Fair Credit and Reporting Act (FCRA) of 2001 ? 15 U.S.C. ? 1681. (2001). The Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105-318, ? 112 Stat. 3007. (1998). The White House. (2003, December). "Fact Sheet: President Bush Signs the Fair and Accurate Credit Transaction Act of 2003". Retrieved January 10, 2007, from The White House Web site: http://www.whitehouse.gov/news/releases/2003/12/200312043.htm Torgensen, K. (2007, February 19). Deputy Attorney General State of Utah. (W. B. Barrus, Interviewer) U.S. PIRG. (n.d.). Summary of State Security Freeze and Security Breach Notification Laws. Retrieved February 17, 2007, from http://www.uspirg.org/financial-privacy-security/identity-theftprotection/summary-of-state-laws Walker, C. (2006, June 12). Utah State Senator. (W. B. Barrus, Interviewer) 18 HINCKLEY JOURNAL OF POLITICS 2007 Improving America's Communities Policy Proposals that Increase Civic Engagement and Improve America's Built Environment Bartly Matthews Recently, America has begun to experience significant declines in civic engagement. At the same time, nearly half of all Americans are currently living in suburban communities that are fraught with challenges ranging from a lack of community institutions, traffic congestion, isolation, pollution and high levels of land consumption. This paper explores the hypothesis that improved urban planning, new tax structures, and more effective municipal government participation in planning will enable communities to develop in a way that will increase civic engagement among their residents while reducing the damaging effects of poorly planned suburban sprawl. CIVIC ENGAGEMENT, SUBURBAN SPRAWL, MASTER-PLANNED COMMUNITIES AND D uring the past four decades, America has experienced significant declines in the number of Americans who are civically engaged in their communities. Several political scientists, architects, and urban planners suggest that America's suburban sprawl is creating an environment that discourages civic engagement because it establishes communities that are dependent upon the automobile, build malls in lieu of town squares, and lack public facilities that encourage public participation and community involvement. One of the responses by urban planners, architects, and developers has been to design and build master-planned communities. Even though these communities are incorporating many design techniques that originated in America's older cities where civic engagement flourished, they establish communities that are created by professionals rather than born of the cooperative workings of the citizens themselves. Additionally, many master-planned communities establish private government organizations known as Community Associations to govern the affairs of the community. Even though elected members of these associations often serve with significant and genuine dedication, community associations can be careless in their responsibilities. Such carelessness is evident when an association fails to follow standard parliamentary procedure and provide adequate due process to the association's members. The dereliction of these basic responsibilities compromises democracy within the community association. Likewise, democracy is further compromised when community associations contract professional, real estate, community management companies that assist the association with community finances, events planning, and enforcement of the community's codes, regulations, and restrictive covenants. There are two significant problems arriving from suburban sprawl and master-planned communities. First, suburban sprawl results in poorly defined communities that do not provide circumstances that encourage civic engagement. Second, master-planned communities stifle authentic civic engagement through the establishment of restrictive covenants, private government organizations, and contracted, professional, real estate, community management companies. In order to invigorate civic engagement in America's communities, communities must begin to incorporate proven and effective urban design techniques that will reduce automobile dependence, decrease isolation, and provide forums of communication that foster civic engagement in both new and existing developments. Additionally, when new development occurs, municipalities should resist allowing developers to create an abstract form of community with community associations that act in concert with professional managers to create and enforce design criteria standards, among a myriad of other community regulations and restrictions, which limit the freedom of their citizens by insulating their ability to participate in local government. 19 IMPROVING AMERICA'S COMMUNITIES POLICY PROPOSALS THAT INCREASE CIVIC ENGAGEMENT AND IMPROVE AMERICA'S BUILT ENVIRONMENT Bartley Matthews Finally, states should restructure their tax laws from point-of-sale tax revenues, which drive communities to cannibalize one another in an attempt to secure retail within their jurisdiction, to a system that encourages mixed-use development and smart growth. A new tax structure will motivate communities to incorporate the policies recommended in this paper. In the end, if these policies are implemented, America's communities will be safer, more pleasant, and more enlightened with increased civic engagement. CIVIC ENGAGEMENT In 2002, the American Political Science Association formed a Standing Committee on Civic Education and Engagement. This forum of discussion resulted in the 2005 publication of the book Democracy at Risk, which is authored by nineteen distinguished political scientists from across the nation who set out to discuss the level of civic engagement in American democracy. In Democracy at Risk, the authors defined civic engagement to include, "any activity, individual or collective, devoted to influencing the collective life of the polity" (Macedo, 2005). They further explained that civic engagement includes voting, campaigning, rallying, marching, attending public meetings, lobbying, writing to newspapers, attending forums, military service, and volunteer service (Macedo, 2005). As explained by Alexis de Tocqueville, such civic engagement has been routine among many American citizens, especially in the early days of American history. Tocqueville was impressed at the extent to which Americans embraced civic engagement. In his book, Democracy in America, Tocqueville stated, "...how is it that each [American] is interested in the affairs of his township, of his district, and of the state as a whole as in his own? It is that each, in his sphere, takes an active part in the government of society" (Tocqueville, 2000). More recently, alarming statistics indicate that civic engagement is dramatically declining and that many citizens are not actively participating in government (Macedo, 2005). Therefore, the question arises: is civic engagement among America's citizens important? If the answer is yes, then a second question can be asked. Does America's built environment influence the level at which Americans are civically engaged? As Macedo (2005) and his colleagues indicated, there will be those who argue that it is not important for there to be a high level of civic engagement among America's citizens, and that having more people actively involved in America's democracy will make democracy more difficult (Macedo, 2005). Nevertheless, I agree when Macedo (2005) and his colleagues stated that "Ultimately...improving the quantity, quality, and equality of civic engagement will improve the quality and legitimacy of self-governance, and it should increase our collective capacity to pursue common ends and address common problems" (Macedo, 2005). Americans should do all that is reasonable to promote and encourage civic engagement among all American citi- zens. Through the implementation of proven and effective urban design policy, America's communities will once again begin to establish built environments that promote walking and talking among their citizens. Such environments foster congenial atmospheres that enable citizen interaction and communication to increase. As the community's civic dialogue broadens so will the level of its citizens' civic engagement. Creating an appropriate urban environment to increase civic engagement is crucial. Civic engagement is not likely to increase while walking New York City's teeming streets where Mark Twain explained that "a man walks his tedious miles through the same interminable street every day, elbowing his way through a buzzing multitude of men, yet never seeing a familiar face, and never seeing a strange one the second time" (Putnam, 2000). If states and communities will begin implementing new urban design policies and reformed tax policies, then built environments will improve and civic engagement will increase. SUBURBAN SPRAWL Increasingly, the American dream has included purchasing a four bedroom home with a two-car garage on a quarter-acre lot in a residential suburb that may be anywhere from fifteen to thirty miles away from a downtown location of employment. Why the suburb? Because it makes better sense to move out to the "west valley" where new homeowners are able to "drive `till they qualify" for a mortgage that will enable them to afford the home that they have been dreaming of than to try and locate in more expensive central communities. What can a suburban American homeowner expect in their new neighborhood? They can expect to live on a sixtyfoot wide street built with wide turns that enable speeding cars to glide by a multiplicity of identical appearing homes, whose front elevations are dominated by driveways and twocar garage doors. There will be sidewalks that wind along tree and shade deprived streets that lead to the subdivision's seven-lane wide major arterial highway that their children will need to cross on their way to school. As for after school activities, the neighborhood children will hurry home to play video games, watch television, and surf the Internet, since there are no parks with safe pedestrian access nearby. While these children are fighting enemy combatants in their latest video game, their parents will be fighting rush hour traffic, which daily doubles the travel time of what should be a maximum thirty-minute drive from downtown. These are all components of suburban sprawl. Unfortunately, as this family copes with the many pressures of suburban life, they will likely spend more of their time stuck in traffic and less of their time walking; more of their time gaining weight and less of their time getting fit; more of their time in isolation and less of their time socializing with neighbors. These realities of suburban sprawl may ultimately affect the degree to which this family will choose to be civically engaged in their community. 20 HINCKLEY JOURNAL OF POLITICS 2007 In his book Bowling Alone, Robert Putnam (2000) has identified three distinct reasons which illustrate how suburban sprawl contributes to civic disengagement: "First, sprawl takes time. Second, sprawl is associated with increasing social segregation, and social homogeneity appears to reduce incentives for civic involvement, as well as opportunities for social networks that cut across class and racial lines. Third, most subtly but probably most powerfully, sprawl disrupts community `boundedness'" (p. 214). have indeed increased civic engagement, but it is a shallow representation of the civic engagement born of republican democracy. Unfortunately, the lack of authentic civic engagement occurs because many master-planned communities establish private government associations and are managed by large independent real estate developers rather than being subject to the public municipality wherein the community is established. THE PROBLEMS Out-of-control suburban sprawl and master-planned communities that stifle authentic civic engagement are the two primary problems that are harmful to civic engagement. Three new-urbanism architects, Andres Duany, Elizabeth PlaterZyberk, and Jeff Speck, have identified a nexus that is developing between the lack of civic engagement and suburban sprawl. In their book Suburban Nation they stated: "Critical writing in recent years has documented a decline in the civic life of our nation...dozens of books call attention to the same problem: society seems to be evolving in an unhealthy way. Americans are splintering into insular factions, each pursuing an increasingly narrow agenda, with nary a thought for the greater good. Further, more and more citizens seem to be withdrawing from public life into the shelter of their private homes, from which they encounter the world primarily through their television and computer screens. This is hardly a recipe for productive social evolution" (Duany & Others 2000). Putnam's three distinct reasons establish only a few of the factors that are resulting from America's suburban sprawl. Additionally, sprawl is contributing to increased traffic congestion, increased pollution, and an incessant appetite for land consumption, while at the same time eroding America's sense of community and civic engagement. That is why it is critical that the American appetite to consume and sprawl be curbed. Otherwise, America's civic engagement will continue to decline while harmful social and environmental issues increase. MASTER-PLANNED COMMUNITIES One response for controlling suburban sprawl has been to build master-planned communities. A master-planned community includes the following characteristics: development of a large tract of land (e.g. one-thousand plus acres) a preeminent theme that guides community design; multiple building contractors that provide diversity in home styles and construction; established commercial centers and shopping districts; and large open space features (e.g. golf courses, lakes, parks, recreational spaces). Master-planned communities work to establish walkable, mixed-use neighborhoods where families can live, shop, work, and play all within walking distance of their homes. Communities that incorporate such design criteria will have greater success in promoting civic engagement. This claim is supported by Putnam (2000) who states "Getting involved in community affairs is more inviting--or abstention less attractive--when the scale of every day life is smaller and more intimate." (P. 205). In short, those who advocate new urbanism--the movement to establish built environments that promote quality of life, conservation of energy, and reduction in consumption and pollution, are becoming widely recognized for their tenacious efforts to combat sprawl and waste, especially as those objectives are accomplished through the development of masterplanned communities. New urbanism architects, urban planners, and developers are to be highly commended because thus far it appears that the implementation of their policies and designs is beginning to bear fruit and America's communities are improving-- at least among those who can afford to live in such communities. What is troubling in the zeal to establish master-planned communities is that they can tend to stifle authentic civic engagement. Authentic is used to describe civic engagement in this context because many master-planned communities Putnam (2000) addressed this issue by introducing another component of civic engagement called social capital--the theory that social networks have value. He explained that "social capital refers to connections among individuals-- social networks and the norms of reciprocity and trustworthiness that arise from them. In that sense, social capital is closely related to what some have called `civic virtue'" (P. 19). According to Putnam, social capital was prevalent throughout the first two-thirds of the twentieth century when it reached a pinnacle in the 1960s. However, the trend did not continue and America has seen a significant decline in civic participation during the last third of the twentieth century, especially in the 1980s and 1990s. Putnam included substantial statistical information to support his claim. One such table comprised of survey information from Roper Social and Political Trends surveys, 19731994, is entitled Trends in Political and Community Participation. On this table, Putnam shows the relative change during the twenty year period from 1973-74 to 199394 of community participation in several key areas that provide a reliable gage for measuring levels of civic engagement. For instance, those surveyed who said they had served as an officer of some club or organization was down 42% over this period. Likewise, the number of people claiming to have worked for a political party was down 42%. People who claimed to have served on a committee for some local organization were down 39%. Those people who had attended a 21 IMPROVING AMERICA'S COMMUNITIES POLICY PROPOSALS THAT INCREASE CIVIC ENGAGEMENT AND IMPROVE AMERICA'S BUILT ENVIRONMENT Bartley Matthews public meeting on town or school affairs were down 35%. Those who had written a congressman or senator were down 23%. And finally, those people claiming to have written a letter to the paper were down 14%. Putnam argued that "we Americans need to reconnect with one another" (Putnam, 2000). To draw further from the points made by both Duany and Putnam, I refer to a small experiment in an urban planning class at the University of Utah that illustrates why quality public spaces are needed to improve America's social capital and increase civic engagement. Professor Keith Bartholomew asked the students to observe how people tend to communicate with each other when passing one another face-to-face while walking on a sidewalk. Then, in contrast, Professor Bartholomew asked the class to reflect on how people tend to respond to others they pass while driving in the isolated comfort of a car. It was observed that the way in which people choose to react in each situation is markedly different. People are generally kinder and more cordial toward one another on the sidewalk where barriers that can isolate behavior are removed and their words and actions are exposed. When people are driving in the controlled environment of their own car, however, the students noted that their words and actions tend to be more cynical and critical of others (Bartholomew, 2006). A second example that articulates the disintegration of America's civic dialogue is occurring through the online, interactive, comment board on KSL Television's website-- Salt Lake City's leading television station. When linking to each story at ksl.com the user has the option of posting a comment to express their point-of-view, or to just read the comments already posted by others. These relatively anonymous postings (showing aliases, or initials, or sometimes first names) reveal an alarming reality about our civic dialogue. Disappointingly, with the protection of anonymity, the majority of people that post comments on the board allow themselves to say just about anything (and they undoubtedly would say more if KSL did not censor some of their comments.) It is a rarity for someone to post a comment that adds any worthwhile substance to the conversation. Instead, the majority of postings are laced with outlandish criticisms, stinging phrases, and constant carping, not only as the comments address the story itself, but also, and possibly even more so, in the responses that participants post to one another. The cynical sentiment that prevails in the majority of these comments is overwhelming and such dialogue is not a recipe for productive social evolution. Therefore, the following question should be asked of the dialogue that occurs on KSL's comment board: would this same manner of exchange occur if these individuals were having this dialogue at the city library? Perhaps the answer to the question is yes; but if such is the case, then the response to that question is indeed a damning commentary on America's civic engagement of which Tocqueville would find little to praise. America's communities must reintroduce and increase the number of public environments that will provide for uplifting and productive interaction if healthy civic engagement is to increase. Putnam (2000) also argued that the many negative effects of suburban sprawl as verified through statistics and research. He argued that these homogeneous, suburban communities, which require continuous use of the automobile, have separated Americans in such a way that social interaction with neighbors and participation in community events has declined. For instance, Putnam wrote that between 1969 and 1995, while the average household size was decreasing, the number of cars per household doubled from one to two. Likewise, during this same time period the average commuting distance to work increased by 26% and the average commuting distance for shopping increased 29%. Putnam (2000) wrote: "Americans adults average seventy-two minutes every day behind the wheel, according to the Department of Transportation's Personal Transportation Survey. This is, according to time diary studies, more than we spend cooking or eating and more than twice as much as the average parent spends with the kids" (P. 212). Putnam continues by explaining that the car and commute hurt community life. He stated, "evidence suggests that each additional ten minutes in daily commuting time cuts involvement in community affairs by 10 percent" (Putnam, 2000). Thus, those who live in suburban communities are participating less and the social capital of their neighborhood is diminishing ultimately reducing their civic engagement (Putnam, 2000). A second essay by Barber titled Malled, Mauled, and Overhauled: Asserting Suburban Sprawl by Transforming Suburban Malls into Usable Civic Space addresses several additional issues pertaining to suburban sprawl and masterplanned communities. His essay focuses on two themes. First, the loss of our classic public spaces to redefined public spaces as developed in commercial centers and malls. Second, the attempt to create utopian societies through master-planned communities that lack genuine characteristics of community and democracy (Henaff, 2001). Countless examples of Barber's first point are found throughout America's suburban communities where, since the 1960s, and until recently, developers have built hundreds of enclosed malls. Intent on maximizing tenant sales, developers have designed enclosed malls to discourage key elements of civic engagement. Barber stated: "On entering an enclosed mall, we are asked to shed every identity other than that of the consumer. Eating is about buying fast food and moving back into the stream of shoppers; entertainment means buying Hollywood's latest and all the commodities that go with them; hanging out and peoplewatching are discouraged by security guards and, more important, the architecture is designed to impede sitting or standing around and keep the traffic flow moving into the shops" (Henaff, 2001). 22 HINCKLEY JOURNAL OF POLITICS 2007 Despite developers' efforts to make malls as profitable as possible, Barber indicated that their initial success is beginning to fail as consumers are becoming less attracted to the mall environment which is resulting in a downward shift of mall sales (Henaff, 2001). This has left the majority of mall developers in an uncomfortable, and more importantly, unprofitable situation leading several mall developers to begin researching ways to redevelop mall sites into profitable centers. In expounding his second point, Barber examined the master-planned community of Celebration, Florida, which was built in 1996 by the Disney Corporation. He criticized the Disney Corporation for the way in which they manipulate everyday life in Celebration. Barber stated: "The downside is not in what Disney does (which it often does very well), but in the totalizing nature of its ambitions" (Henaff, 2001). Celebration is not a community that has grown out of the cooperative associations of average people; rather, it is a development by a large corporation that influences everything from community design, to economy, schools, and government. Barber further argued that Celebration is an extension of the mall atmosphere wherein Disney has created a controlled environment with a captive audience to whom they may constantly market Disney products (Henaff, 2001). This is not an ideal model for future developers to follow. Nevertheless, there are several similarities between Disney's Celebration, Florida and Kennecott Land's Daybreak development in South Jordan, Utah. While Daybreak lacks what Barber identified as Disney's "let's-theme-park-the-world" attitude, Kennecott Land is implementing many of the characteristics that are found in the design of Celebration, Florida. It is now common for developers, like Disney and Kennecott Land, to contract architects and urban planning consultants who promote new urbanism ideals as reflected in the master-planned community. Unfortunately, however, these developers and designers can succumb to the desire to enshrine their master-planned community, for the foreseeable future, through establishment of codes, regulations, and restrictive covenants that run with the land making it extremely difficult, if not impossible, for any future property owners to make adjustments to the designer's initial plan. Daybreak is the first of approximately ten proposed master-planned communities that are being developed by Kennecott Land along the West Bench of the Salt Lake Valley at the base of the Oquirrh Mountain Range. Kennecott Land, formed in 2001, is a land development subsidiary of the Rio Tinto Group, an international mining conglomerate that owns Kennecott Utah Copper and the Bingham Canyon Copper Mine. Decades ago, Kennecott Utah Copper purchased the tract of land now being developed for potential mining that never materialized (History, Kennecott Land). Rather than continue to preserve this undeveloped tract of land, Kennecott Land was formed as a way to introduce new revenue for the company through land development, and to provide available land to help accommodate Utah's unprecedented population growth (expected to double from 2.2 million to 5 million by the year 2050). The Daybreak community is being developed within the jurisdiction of South Jordan, Utah, while the remaining communities will be developed in what is presently unincorporated Salt Lake County. Kennecott Land's completed development will cover an expanse of approximately ninety-three thousand acres, or one hundred forty-five square miles, which represents fifty-three percent of the developable land in the Salt Lake Valley. It is the largest metropolitan land-owning by anyone in the United States. Kennecott Land estimates that the West Bench development, to be completed by 2050, will consist of one hundred sixty-eight thousand residences that will house approximately four hundred fifty thousand people (Varella, 2005). If those projections are met, then Kennecott Land's West Bench development will dwarf Disney's twenty-thousand resident Celebration, Florida. Because Kennecott Land's West Bench development could affect nearly a half-million people it is imperative that masterplanning be done in such a way that it promotes civic engagement. While Kennecott Land's communities may be beautiful and functional, they appear to stifle civic engagement through the establishment of (1) community associations, or private governments; (2) restrictive covenants; and (3) the contracting of a professional, real estate, and management company, Capital Consultants Management Corporation of Dallas, Texas, who manages Daybreak and Celebration, Florida. Evidence of Kennecott Land's desire to assume control of the entire development of the Daybreak community is documented in a portfolio feature of Kennecott Land's Daybreak development that was published in Land Development by the National Association of Home Builders. It states, "Daybreak's rapid success is attributable to Kennecott Land's holistic approach to development of significantly large areas of property. What's more, the company's business model includes acting as a "master developer" of these large areas-- that is, they design, plan, entitle, develop infrastructure, finance, and prepare design guidelines for their communities. They select and manage builders who share a commitment to excellence and Kennecott's design standards" (National Association of Home Builders, 2005). There are many people that prefer the privatization of government responsibilities and would welcome developers like Kennecott Land, who are willing to take on the entire development process, and relieve city planners of the need to address all of these details. Likewise, design firms will prefer developers like Kennecott Land because they will establish the restrictive covenants that will maintain their design for years. While there is merit to both of those arguments, I suggest that municipalities should not allow developers to establish restrictive covenants that dictate every detail of the com- 23 IMPROVING AMERICA'S COMMUNITIES POLICY PROPOSALS THAT INCREASE CIVIC ENGAGEMENT AND IMPROVE AMERICA'S BUILT ENVIRONMENT Bartley Matthews munity from the type of fences that people may have to the colors allowed on their houses. Such restrictive covenants may preserve the planners design, but are not healthy for civic engagement because they introduce elements of control that begin to lead down a slippery slope of limiting basic freedoms and liberties. An individual's community is a place that they can influence and shape. If restrictions are necessary, then let them be presented before the public for approval. Public involvement through democracy is what gives genuine feeling and character to a community. It is what makes a community born of the people that live in it. This occurs because each participant assumes a stake in the community's development. If the community succeeds or fails it will be a direct reflection of the people who live there. Establishing this type of policy makes it incumbent upon municipalities to educate their citizens about the need to incorporate new urbanism design. I am not referring to design details that dictate items like house color. Instead, I'm referring to new urbanism design principles that establish mixed-use development, safer streets, mass transit, and other similar and important design attributes. When properly informed, Americans make good decisions. They should be trusted by developers and planners to make such decisions in the development of their communities. PROPOSED SOLUTIONS TAX POLICY Many municipalities face significant difficulties when they try to implement policies that will improve their built environment without raising taxes. The pressure to provide all of the services and infrastructure that is necessary and demanded by a community's residents has driven municipalities to reevaluate their revenue sources. Municipalities derive revenue from three main categories: property taxes, fees, and local sales taxes (Wassmer, 2002). In many regions, municipalities are already collecting property taxes at the maximum allowed rate. This is especially true in California where the 1978 passage of Proposition 13 capped property taxes at one-percent for all property owners (Lewis, 2001). Raising property taxes is extremely unpopular and can lead to political suicide for any politician who recommends doing so. This creates a significant challenge for municipalities who are experiencing revenue shortfalls, especially since it is estimated that the property taxes collected on five residences are only sufficient to cover the costs associated with three (Bell, 2006). Likewise, municipalities are limited in the number of fees that they can levy. This leaves the sales tax as the last real possibility for municipalities that need to increase their revenue. Utah State Senator Gregory Bell explained that as municipalities continue to evaluate how they can increase their revenue, they "like all other entities, will follow the course of least resistance" (Bell, 2006). In determining what that course will be, municipalities compare and contrast their revenue sources with their expenditures to find the revenue that will provide the greatest fiscal outcome. This process is best described by the term fiscalization of land use, which is a term that was pioneered by D.J. Misczynski and refers to "local efforts to employ land-use regulation so as to increase local revenue streams" (Lewis, 2001, P. 24). It is reasonable, therefore, to understand why municipalities choose to court retail, since it can increase their local sales tax revenue. Robert W. Wassmer of California State University, Sacramento, explains in a recent journal article that municipalities generally prefer an increase in retail activity because "in most instances [it] requires a relatively small amount of local government services and generates relatively little environmental damage" (Wassmer, 2002). In Utah, the current sales tax system collects between 5.75% and 8% on every retail dollar spent. Four point seventy five percent of the tax returns to the state. One percent is reserved as the local option portion. The remaining 0% to 2.25% varies between municipalities where sales taxes have been increased to provide revenue for various county and town interests that relate to parks, highways, mass transit, hospitals, resorts, etc (Utah State Tax Commission, 2007). The 1% local option portion is evenly split with one half returning to the point-of-purchase and the other half being distributed pro-rata, statewide, based on population (Utah Code Section 59-12-204, 59-12-205). For example, if during the course of a year, Nordstrom, in Salt Lake City, sells $100 million worth of merchandise, then the state will collect $4.75 million, Salt Lake City will collect $500,000, and the remaining $500,000 will be dispersed equally to all municipalities, statewide, based on population. Utah is ahead of the curve to modify sales tax distribution by having already split the local option sales tax in this manner. Many states still return the full 1% local option sales tax to the point-of-purchase. Unfortunately, there is a limited amount of retail that can be supported by any one region or community. This leads municipalities to compete with one another to locate, within their jurisdiction, all of the possible retail that the region can support so that they may receive the half-percent local option sales tax revenue. Wassmer (2002) explained that "the greater the reliance on a municipal revenue source that generates a local fiscal surplus from local retail activity, the more likely it will be that local officials zone for retail land uses and utilize local incentives to encourage it" (Wassmer, 2002). The competition between municipalities to lure the limited retail from one municipality to the next has been referred to, by Senator Bell, as a cannibalization of cities that is harming the built environment, contributing to sprawl, and decreasing social capital. Senator Bell explained the consequences of this phenomenon, which are often referred to as zoning for dollars: "The financial incentive to create sprawl-type, auto-oriented, retail, facilities is very high. This often comes at the cost of losing established Main Street businesses and creating town gateways connecting the main part of town with free- 24 HINCKLEY JOURNAL OF POLITICS 2007 ways and major roads lined with big box retail, car lots and malls. The ambience and connectedness of the traditional town with its smaller scales and walkable facilities are usually sacrificed" (Bell, 2006). In order to return balance to community planning in municipalities, Senator Bell argued that the point-of-purchase benefit derived from the local option sales tax must be removed and redistributed based on some other criteria (Bell, 2006). That is the only way to redirect a municipality's focus from acquiring more and more retail to building walkable, safe, communities that endure. This proposal, however, is extremely unpopular among municipalities that have established significant retail in their jurisdictions. Wassmer stated "the political reality is that some jurisdictions have grown accustomed to the fiscal surplus generated by local land policies that favour retail activity and loathe losing it" (P. 1324). A second reason why municipalities resist further modifications to the sales tax structure is best explained by Paul G. Lewis (2001) of the Public Policy Institute of California in San Francisco. He stated "taking away local control over the sales tax in California, however, would place cities in the position of dependent claimants, fighting for yet another statecontrolled revenue source ? much the same position they are in now with respect to the property tax" (P. 31). The reality is that the local sales tax is the last source of revenue that municipalities can influence, shape, and structure to benefit their local situation. Nevertheless, it is incumbent upon each of the various stake holders to work to reform how these local option sales taxes are distributed. The manner in which the local sales tax system is currently constituted is broken and must be fixed if America's communities stand any chance of escaping the harmful effects of suburban sprawl. Until this change occurs, municipalities will have no incentive to implement new urban design measures to improve their communities. It is essential that action be taken immediately to curb this harmful trend. COMMUNITY ASSOCIATIONS UNDER THE AUSPICES OF MUNICIPAL GOVERNMENT Throughout this article, I have argued against community associations that are established through the codes, policies, and covenants of master-planned communities. Among the many concerns of community associations, my greatest concern is that the members of these associations are often elected through substandard processes. Generally, community association elections embody little semblance of an official, municipal, election. Instead, these elections often utilize photocopied ballots and voting by proxy which subject the election to inaccurate results. Such elections do not typify republican democracy in its true form. If it is determined that a community association should be established in a master-planned community, provisions should be instituted to establish such an association under the auspices of the municipal government wherein the master- planned community is located. Organizing the community association in this way will not only establish a better structure to safeguard the association from failing to follow standard parliamentary procedure and provide adequate due process to the association's members, but it will also provide for a more fluid communication between the community association and city officials. An excellent example of the establishment of such associations is found in the twenty-three community councils located throughout Salt Lake City, Utah. These organizations are successfully increasing civic engagement while at the same time establishing a profound influence on city government. According to the city's website: "Salt Lake City recognizes neighborhood-based community organizations whose purpose is to provide community input and information to city departments. The community councils are encouraged to make recommendations to the city on all matters affecting the city or each organization's particular community or neighborhood. All City Council districts have community councils" (Community Councils, 2007). Although private management companies, which are contracted to assist community associations, guarantee aesthetically pleasing and functional communities through the continued enforcement of the designer's plan and restrictive covenants, the management companies and the community designers are taking away the deliberative citizen processes that shape communities. Such management companies are suitable for small developments but should not be allowed to manage the affairs of larger master-planned communities. REDEVELOPMENT Douglas Rae, a political scientist and member of the Yale faculty since 1967, left his chairmanship of Yale University's political science department in 1990 to serve for eighteen months as Chief Administrative Officer of New Haven, Connecticut. Rea recounted his experiences and observations while serving in New Haven's city government in his recent book City. The following quotation from Rae's book provides an excellent vision for future development of America's communities and built environment. Rae (2003) said, The old urbanism--the city of steam and manure--cannot be recaptured, and it would not suit our needs if it could be. But certain critical details of that older urbanism--the magic of small commitments to place, the value of strangers in ordinary life, the humanity of well-ordered sidewalks--must be among the principal guideposts to a new era of urbanism in the twenty-first century" (P. 31). Rae's vision for future development should be considered not only when establishing new development, but also in the redevelopment of America's decaying and sprawling neighborhoods. One such location is Valley Fair Mall in West Valley City, Utah. The mall is situated on a sixty-acre site that is located on Constitution Boulevard between 3500 and 25 IMPROVING AMERICA'S COMMUNITIES POLICY PROPOSALS THAT INCREASE CIVIC ENGAGEMENT AND IMPROVE AMERICA'S BUILT ENVIRONMENT Bartley Matthews 3800 South streets. The mall's construction was completed in 1970 during the era when many indoor suburban malls were built. Valley Fair Mall consists of forty-four acres of paved parking and six hundred thousand square feet, or fourteen acres, of retail space. Like most suburban malls, Valley Fair Mall is arguably West Valley City's most valuable land bank. At the time of its construction, Valley Fair Mall was located in the Granger neighborhood of Salt Lake County. In 1980, after two public votes, the residents of the Granger, Hunter, and Redwood neighborhoods successfully voted to incorporate the region into what is present day West Valley City (2007). West Valley City, as is the case with most suburban communities, does not have an urban center or recognized downtown. Therefore, I propose that West Valley City reverse the suburban trend and implement the policies that I am advocating by redeveloping Valley Fair Mall, and surrounding sites, into a new, central, eighty-acre downtown for West Valley City. The sites that I recommend for redevelopment include: Valley Fair Mall, Granger Elementary School, Granger Christian Church, Firestone Tires, Big O Tires, Jubilee Foods, Party City, and a small apartment complex. A possible name for the new development could be "Valley Fair Promenade: A Downtown for West Valley City." Unlike master-planned communities, multiple developers, under direction of the city, should be part of this venture, which, comprising eighty-acres is the equivalent of eight Salt Lake City blocks, or seventytwo Portland, Oregon blocks. If Utah's population projections remain accurate, then the state will need to redevelop locations like Valley Fair Mall in order to accommodate all of the anticipated growth. Hypothetically, this redevelopment could ultimately look like the following: it would have a downtown consisting of seventeen blocks that average three-hundred fifty feet in length. Such a configuration would be walkable while formatting well with the existing street pattern. One of the center blocks could be reserved for a park which would serve as a public gathering place and is an essential element for a successful downtown. On another central block, perhaps across from the park, could be a location for a new West Valley City Municipal Government Center. Another block adjacent to the park could be a site for a new Granger Christian Church. Granite School District could build a new Granger Elementary School on the same location as the existing school. West Valley City could invite KTVX channel 4 to locate in this new urban center where they would become more competitive with KUTV channel 2, which recently relocated to new Main Street in Salt Lake City. A small convention center could be built along with a new hotel. A new cinema, theater, office towers, condominiums, and mixed-use buildings would be encouraged. Light-rail service would also be brought to the location connecting West Valley City's urban center with other urban centers in the Salt Lake Valley. Certainly, the economy will determine whether a develop- ment of this magnitude could be supported, but the concept should at least be considered. An urban center redevelopment of this nature would have a positive influence in redefining West Valley City and the heart of Salt Lake Valley. At the same time, this new development would be a conglomerate of civic opportunity. What had once been a sixteen-acre mall with a forty-four acre parking lot would now be a thriving center of urban activity. West Valley City would become an attractive and desirable urban center. West Valley City would be recognized as a community built by people through multiple developers and a place where civic engagement flourishes. West Valley City would become another enduring installation of the American experience. CONCLUSION Thus far, America's experiment in democracy has proven to be an effective form of government which has given her citizens a voice in government while protecting their individual freedom. To ensure that America's experiment in democracy continues to flourish at the local level, government leaders and policy makers must curb the effects of suburban sprawl by implementing proven and effective urban design techniques that will establish public facilities that incite public participation and community involvement. Likewise, municipalities must discourage allowing developers to create an abstract form of community by establishing community associations that act in concert with professional master-planned community managers to create and enforce design criteria standards that limit the freedom of their citizens by insulati