If you wondered what your cat would look like in a driver’s license, you can blame Sen. Bob Casey for missing the chance to find out.

Before last month, you could have used the “License” app from DriversEd.com on your Apple device to insert pictures in low-resolution mock-ups of driver’s licenses.

Then, in December, the Pennsylvania Democrat contacted Apple CEO Tim Cook and asked that it be removed from the App Store.

In a press release from the Coalition for a Secure Driver’s License, the group that brought the app to Casey’s attention, Casey’s letter is quoted as saying the app “can be used in a way that allows criminals to create a new identity, steal someone else’s identity, or permit underage youth to purchase alcohol or tobacco illegally. National security systems depend on the trustworthiness of driver’s licenses, yet with a counterfeit license created by the app, a terrorist could bypass identity verification by the Transportation Security Administration, or even apply for a passport.”

Because of these concerns, Casey contacted Cook, who had the app removed, ensuring that no users of Apple devices could download it.

“In areas where it’s appropriate to weigh in to protect constituents, fuel the economy or create jobs, Sen. Casey will certainly do so,” said April Mellody,   Casey’s communications director.

DriversEd.com co-founder and Chief Operating Officer Gary Tsifrin said the company was never contacted by Casey’s office or by the Coalition for a Secure Driver’s License.

“On Friday evening, we received a copy of the letter from Sen. Casey’s office to Tim Cook at Apple,” Tsifrin said. “By Sunday, Apple had responded by taking the app down.”

The company has said the app was nothing more than a marketing tool used to promote its online driving instruction and that it could not be used to create believable counterfeit driver’s licenses. “I don’t think anyone who looked at the product of the app could confuse it for a government-issued ID,” Tsifrin said.

On top of that, according to Tsifrin, the app made it through Apple’s application process, meaning it did not initially violate any of Apple’s terms of service for app providers. After it was pulled, though, Apple told DriversEd.com that the app violated the terms of service by violating state laws, although Tsifrin said Apple did not cite any specific state statutes.

Tsifrin said he would have preferred  that Casey approach the company first. “It’s perfectly reasonable for a Senator to be concerned with that,” he said. But “it would have been preferable, obviously, if someone from his staff contacted us first.”

A Difference in Kind

Cindy Cohn, legal director at the Electronic Frontier Foundation, is concerned about the increase in this type of intervention by Members of Congress

“I’m not aware of this happening in other industries,” Cohn said.

To her, cases such as this differ from past examples of Members’ direct interactions with private companies, such as Senate Majority Whip Dick Durbin (D- Ill.) writing to Bank of America CEO Brian Moynihan last fall to complain about the bank’s new monthly fee.

Durbin was dealing with the bank directly rather than involving a third party that controlled the bank’s access to the Internet. Casey — and other Members, Cohn said — have dealt with the third parties that control the companies’ ability to publish, such as Twitter or Apple.

Cohn cited an instance in which someone from the office of Sen. Joe Lieberman (I-Conn.) contacted Amazon to discourage the online retailer from hosting WikiLeaks content. Last month, Lieberman contacted Twitter about removing accounts linked to members of the Taliban.

Cohn compared that kind of interaction to dealing with a criminal’s utility provider rather than the criminal. “You don’t hear calls from Congressmen to the electric company to turn off the electricity on somebody who they think is violating the law,” she said.

Cohn explained that this is what the EFF refers to as the “weakest link” problem, where Internet users rely on third parties such as Twitter, Apple, Amazon, Facebook and others to interact and publish online. This creates choke points, where individuals — including Members of Congress — can easily go to shut off access for those Internet users. “I don’t think it takes a sophisticated analysis to recognize that there’s going to be more pressure from a Member of Congress than from a member of the public,” she said.

Cohn explained that a frequent criticism of the Stop Online Piracy Act, a bill aimed at protecting intellectual property, is an extension of this weakest link problem, where individuals making complaints about online content can approach the companies that host that content rather than the groups that posted the content.

“It really does leverage this third-party problem,” Cohn said, explaining that, under SOPA, online content could be removed with “just an allegation of copyright infringement,” rather than evidence of actual copyright infringement.

A Difference in Degree

According to Tom Galvin, partner at communications consulting firm 463 Communications, the focus of the intervention, not the practice of intervening, is what has changed.

“What’s new for us is we now live in an apps world. [Members of Congress] are getting focused on what they see as protecting their constituents,” he said. “Because technology is pervading society in new ways, it’s likely to incite lawmakers to weigh in.”

According to Galvin, not all questionable online content needs to be met with legislation, especially when reaching out personally can be faster and easier. “I think most Members of Congress would say that they are at least as influential when they weigh in personally as they are through legislation,” he said.

Still, when action is pursued through unofficial channels, companies are not obliged to cooperate. “Ultimately, it’s up to the company to make a judgment,” he said. “I’m sure if Apple felt strongly enough about the app, they would have tried to hold discussions.”
Galvin expects to see more of this kind of intervention, with online content now an ever-present part of daily life. “I think it’s a new phenomenon,” he said, “but I think it’s something we will see more of in the future.”