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From spying on domestic-based international phone calls without a court warrant to reportedly obtaining the phone records of tens of millions of customers of AT&T, BellSouth, and Verizon, the federal government appears to have made safeguarding Americans’ privacy a low priority. So it may come as a surprise to learn that the Justice Department — the agency responsible for defending such programs — has a top official charged with making sure the agency doesn’t violate Americans’ rights while pursuing terrorists. Jane Horvath, a former privacy attorney for America Online, became the department’s first full-time chief privacy and civil liberties officer in February. But her powers are limited and, in the view of a number of privacy advocacy groups, negligible. Unlike privacy officers in Europe and Canada, she has no power to subpoena federal law enforcement officials with knowledge of alleged privacy or civil liberties violations. Nor can she report independently to Congress. “I tend to think it is window dressing,” says David Sobel, general counsel of the Electronic Privacy Information Center. “The creation of a position like this within DOJ is a matter of [the department] paying lip service to the very real privacy problems that arise from their activities.” And, in fact, Horvath herself says she has no intention of taking a confrontational approach or acting independently of Justice’s leadership in defending privacy rights at an agency that has vigorously defended the National Security Agency’s domestic spying and whose own investigators are increasingly circumventing federal courts to collect personal information on American citizens. In an interview with Legal Times, Horvath says she sees herself as an adviser who can work behind the scenes to ensure privacy concerns are heard by top officials. “People have to see you as someone helping to structure a program to be effective,” she says. “Me, by myself, screaming and yelling, I’ll get nowhere.” Horvath’s job was created in January under a provision of a Justice appropriations bill to help counterbalance sweeping new investigative and data-collection powers granted to the FBI and federal prosecutors since the Sept. 11, 2001, attacks. The position was modeled on the Department of Homeland Security’s privacy officer, a four-year-old post that privacy advocates have also criticized as being insufficiently independent. “A privacy officer fundamentally is operating with values inconsistent to the department. . . . It takes a unique and combative personality to do well in a job like that,” says James Harper, a privacy law expert at the Cato Institute. “In the end, I think it will be the role of the chief privacy officer to apologize for their agencies, rather than act as a privacy advocate internally.” GRAPPLING WITH BIG BROTHER Horvath disagrees and says she and her four-lawyer office will be able to effectively steer policy at the 110,000-employee Justice Department. “I don’t view myself as an apologist,” she says. Nor does she want the authority to subpoena witnesses or compel testimony from Justice officials, as some Democrats on Capitol Hill have proposed. Such powers would isolate her from DOJ decision makers, Horvath says, adding that any investigative responsibilities are best left to the department’s inspector general. “I think it would be such a mistake,” she says. “If you give me subpoena power, you’re going to pigeon-hole me off into another room.” Horvath, 42, comes to the job from the consulting firm Privacy Laws & Business, a U.K.-based company that advises U.S. companies on complying with Europe’s more stringent privacy laws. From 1995 to 2001 she worked as an assistant general counsel at AOL and wrote the company’s first privacy policy. At Justice, Horvath will be close to the center of the department’s power structure. She works under Deputy Attorney General Paul McNulty, the No. 2 official who handles the department’s day-to-day management, and her ability to overcome institutional resistance will be dependent on her ability to invoke his authority. “Jane plays a significant role in ensuring that the department’s policies and initiatives are fully compliant with privacy and civil liberties,” McNulty said in a statement. “Just by virtue of being in [McNulty's] office, she’ll have the ability to put issues on the agenda that she thinks are important,” says one former high-ranking Justice official. “She’ll have the ability to pick up the phone and get people in the attorney general’s office.” Working under her are three privacy attorneys transferred from Justice’s Office of Information and Privacy, a departmental subunit that handles mainly Freedom of Information Act requests. She also expects to hire a deputy soon. Whether Horvath and her small staff will be able to actually shape policy is a different matter. With no independence from Justice leadership, her authority is limited to the power of persuasion, says Peter Swire, a former privacy counselor in the Clinton administration. “It’s a tough job because you’re pushing against the wind most of the time,” he says. Horvath says she can best defend privacy rights by vetting new programs for privacy issues before they are implemented. She points to the Defense Department’s Total Information Awareness program as an example of a government data-gathering program that would have benefited from the advice of an in-house privacy adviser. Among other goals, that program, undertaken soon after the Sept. 11 attacks, sought to develop technology that would allow computers to identify and track people remotely. But its disclosure led to a public firestorm, and in 2003 it was abandoned. “No one thought how the advocacy community or the American people would view it,” Horvath says. “It’s much better for me to be in at the inception of these programs.” Though Horvath says she hopes to focus on influencing new initiatives, there are plenty of existing Justice policies that raise privacy concerns. One area that has drawn Horvath’s attention is the FBI’s expanded use of National Security Letters. NSLs allow the FBI to secretly gather personal information from banks and telephone companies without having to first obtain court approval. After fighting to keep statistics of their use secret, late last month the Justice Department reported to Congress that it issued 9,200 such letters in 2005. “It’s a program that got to the top of my list,” Horvath says. “The department as a whole needs to look at whether there were relevant law enforcement uses for those.” She also expresses an understanding of the privacy concerns raised by the Justice Department’s attempts to gather Internet search data from Google and other search engines in its efforts to combat online pornography. “It’s the slippery slope,” Horvath says, noting that she’s expressing a personal, rather than an official, opinion. “Google takes data and they save their data. Once they start producing data for the government, at what point does it stop?” But Horvath is undisturbed by the growth in DNA profiles retained by state and federal law enforcement in a computer network known as the Combined DNA Index System (CODIS). That database, which initially was used to store genetic information of convicted felons, has been expanded to include thousands of arrestees who have not been convicted of a crime. “If people have a problem with what CODIS is taking in, they need to talk to Congress,” she says. “The FBI is not going outside of the law to take DNA.” On perhaps the most controversial privacy and civil liberties issue handled by the Justice Department — its vigorous defense of the NSA’s warrantless surveillance program — Horvath says she has no role to play and has not been briefed on the matter. “That’s [DOJ's] litigation posture,” she says. “It’s done by NSA. It’s not my area.” LOBBYING, NOT ENFORCING Horvath’s job description says she’s responsible for coordinating the work of Justice related to the protection of privacy and civil liberties. Fred Cate, a professor at the Indiana University-Bloomington School of Law, says the fact that Horvath hasn’t been consulted on the NSA issue reveals much about the limits of her authority. “The attorney general has to sign off on every other agency’s surveillance programs,” says Cate. “How effective can the chief privacy officer be if she’s not involved in advice [Justice] gives to other agencies?” And without the power to compel testimony from Justice officials, it’s unclear how often she’ll be consulted by DOJ’s leadership or what real power she’ll be able to wield should she see privacy concerns being ignored. “At best it’s internal lobbying,” says Barry Steinhardt, director of the American Civil Liberties Union’s technology and liberty program. Horvath says that so far she hasn’t felt left out of the loop. She says she meets with McNulty twice a week in the deputy attorney general’s staff meetings and has already been able to influence two significant policy decisions, though she declines to name them. “I’ve been able to have my voice heard a great deal,” she says. “I see changes that I suggest integrated.” But even those privacy advocates who say the Justice Department would be better off with a European-style privacy watchdog express optimism that her appointment is a step in the right direction. “Somebody with limited powers is far better than none,” says Robert Ellis Smith, a Rhode Island lawyer who publishes a journal on privacy law. “What’s important is to have somebody who is a focal point.” Serving as a sounding board for public dissent will be an important part of Horvath’s job. As the attacks of Sept. 11 recede, the public is growing increasingly wary of government monitoring. An ABC News- Washington Post poll in January found that 30 percent of Americans felt the government was unjustly violating privacy rights in investigating terrorism. Though that number remains relatively small, it’s a significant rise over the 17 percent who felt that way in September 2003. Horvath has met with critics of the DOJ’s privacy and civil rights policies, including the ACLU and the Center for Democracy and Technology, and will speak at a meeting of privacy groups hosted by the Electronic Privacy Information Center (EPIC) later this month. She’s sure to hear plenty of criticism. “The department has a real credibility problem in terms of assuring the public that laws designed to protect privacy are being scrupulously observed,” says EPIC general counsel Sobel. “It’s clear the security and intelligence interests overpower the privacy interests.” That critique isn’t unfamiliar to the new chief privacy officer. “I think that a great part of my role is to re-establish trust,” Horvath says. “Trust is a huge thing for the FBI and Department of Justice. . . . They can’t do their jobs if they don’t have it.”
Jason McLure can be contacted at [email protected].

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