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The Pentagon promises to comply with federal privacy laws in developing and deploying a super-surveillance system to identify terrorists. That’s cold comfort to the system’s critics and privacy experts who say that in fact few laws apply to what the government envisions. “It’s definitely something people are right to worry over,” said Daniel R. Ortiz of the University of Virginia School of Law. “People are going to have different ideas about where to strike the balance between national security and individual privacy. What you can say is there aren’t many generic privacy protections, ones that apply across the board and that are very effective.” Efforts are under way within the federal government to use computer technology to probe databases for information about possible terrorist activities. The Pentagon took the spotlight last week when it released a report — mandated by Congress — on its Terrorist Information Awareness (TIA) program. The program is a five-year project to develop and integrate computer technologies that will sift through public and private databases to find patterns and associations that suggest terrorist activity. The databases would include financial, medical, communications and biometric (fingerprints, gait, iris) data. The technologies would be used by intelligence, counterintelligence, law enforcement and homeland security agencies. In a speech last year, retired Rear Admiral John Poindexter, who oversees the project, said, “If terrorist organizations are going to plan and execute attacks against the United States, their people must engage in transactions, and they will leave signatures in information space.” REPORT REQUIRED Congress directed the Pentagon to report with details about the program’s operation to determine whether it would be an effective tool in the war on terrorism and whether it could operate without violating privacy laws and civil liberties. The TIA program has spurred the creation of a large coalition of conservative and liberal civil liberties groups, including the American Civil Liberties Union, the American Conservative Union, People for the American Way, the Eagle Forum, the Electronic Privacy Information Center and the Free Congress Foundation, all concerned with the program’s privacy implications. The report, which was issued last week, did little to assuage those concerns. But some critics and some cautious proponents agreed that it should trigger a serious debate among lawmakers and the public about privacy laws and their inability to keep pace with, or even to apply to, existing and future technology. “All TIA appears to me to be is a method of enhancing our efficiency in accessing information that the privacy laws otherwise permit the government access to in law enforcement,” said Paul Rosenzweig, a senior legal research fellow at the Heritage Foundation. “If we don’t like the current status of privacy laws, let’s have a debate about them.” The report is a “first step in what could be a long process of discussing the implications of a program like this, what laws apply — which we think are few — and what the new rules need to be,” said Lara Flint, an attorney with the Center for Democracy and Technology. The Pentagon said that the Terrorist Information Awareness project’s research and testing activities “have depended entirely on (1) information legally obtainable and usable by the Federal government under existing law, or (2) wholly, artificial data that has been generated to resemble and model real-world patterns of behavior.” No single federal law protects the privacy of personal information held in public and private databases. Unlike Europe, which, through a privacy directive, lays out broad privacy protections that apply to everything unless an exception can be argued, the United States has a “crazy-quilt” privacy regime, Ortiz said. “We do a little bit of regulation when there is a concern about something, like video rental records after the Thomas confirmation hearings,” he said. “There are privacy protections in some areas, but the protections are not the same in different areas. The standards don’t really match up well.” Last March, the Congressional Research Service of the Library of Congress reported on existing privacy laws to Congress in connection with its review of the program. The service noted that federal laws today protect “government, credit, communications, education, bank, cable, video, motor vehicle, health, telecommunications, children’s and financial information.” Those laws generally have exceptions for disclosure to law enforcement officials. Programs like Terrorist Information Awareness reveal three problems with privacy law, said Peter Shire, chief privacy counselor in the Clinton administration, who’s now on the faculty at Ohio State University’s Moritz College of Law. First, the major privacy law that applies to federal agencies is the Privacy Act of 1974. That act, said Shire, covers “systems of records,” a system of records created by the government and held in a government database. The act was passed in response to concerns about the creation and dissemination of large government data banks of personal information. “The new challenge comes when federal agencies are searching private databases because the private databases don’t count as a system of records,” Shire explained. Experts say that the government could scan data held by private corporations without pulling the data into a centralized government database where the Privacy Act’s protections would apply. “The idea of TIA is to sweep through huge swaths of private databases,” said Shire. “These searches are not covered by the Privacy Act of 1974. That’s the big hole.” Second, existing privacy laws contain exceptions that vary in breadth but allow access to and sharing of data for law enforcement and intelligence purposes. Where no privacy law applies, the government can ask for voluntary disclosure of commercially held records. It can purchase private databases. And, under the USA Patriot Act, it has broad authority to compel disclosure for anti-terrorism purposes. The third problem lies in Fourth Amendment protection, said Shire. “The Fourth Amendment applies to government searches,” he said. “So if the cops come into your home, they need a search warrant. “But if you give the data to some outside organization, such as a hospital or bank, the U.S. Supreme Court has said the outside organization can volunteer that information to the government.” The high court has held that consumers have no constitutional expectation of privacy in information given to businesses in the course of day-to-day transactions. “The whole point of TIA is to send searches through the largest possible array of private-sector databases, where, we just said, there is no Privacy Act protection and no Fourth Amendment protection,” said Shire. “On a technical level, these gaps didn’t matter so much until TIA and the Patriot Act came along.” Shire said that he believes it is time to overhaul federal privacy laws. “The technology and law have shifted so much since 1974 that we need new framework legislation,” he said. “The Constitution, as interpreted by the courts, simply doesn’t address most of the problem. It’s up to Congress to fill the gaps in existing protection.” Rosenzweig of the Heritage Foundation said that Congress should not strangle the program before doing the “hard work” of examining it against the background of existing laws and existing terrorist threats here and abroad. “On pure efficiency grounds, it seems hard to maintain arguments against TIA when there are such significant threats of terrorism,” he said. Rosenzweig believes Congress and the Pentagon can draw lines on how Terrorist Information Awareness is used. “We can make the distinction — use TIA and only input models of terrorist activity,” he said. “If a drug career happens to fall out, we’re not going to throw him back in the sea, but we will not choose to deliberately input models of behavior or activity other than terrorism.” Privacy, he added, is a “feel” kind of thing. “I’m much more concerned about my bank accounts than someone accessing my credit card purchases,” he said. “That’s a personal valuation. Ultimately our laws are supposed to accumulate these preferences, so we assign them valances from 100 to zero.” When it comes to the terrorism program, Rosenzweig said, “I think the balance is fairly struck. None of this is really about TIA, except that it makes people aware, some for the first time, of just how little privacy protection there is.” Rosenzweig objected to an amendment to a budget bill adopted in February by Congress that prohibits the deployment, implementation or transfer of any part of the Terrorist Information Awareness program until Congress is notified by the Defense Department and the lawmakers specifically authorize deployment and funds. Congress made an exception for the use of the program in support of U.S. military operations outside of the United States and for lawful foreign intelligence activities conducted against non-U.S. persons. AMENDMENT CRITICIZED The amendment, sponsored by Sen. Ron Wyden, D-Ore., goes too far, asserted Rosenzweig, and was adopted without adequate debate on the program’s effectiveness and use, particularly for domestic purposes. “Why are we shutting off debate?” he asked. “I’m open to the possibility this sucker won’t work, or if it does work, it will be so bad we won’t want to do it. But let’s look first.” In February, the Pentagon announced the creation of two boards — one internal, the other external — to oversee the Terrorist Information Awareness program and to address concerns of civil liberties groups that the program will be used to spy on Americans. The internal board consists of Pentagon officials. The external board includes Newton Minow, professor of communications law at Northwestern University; Floyd Abrams of New York’s Cahill & Gordon; Zoe Baird, director of the Markle Foundation; former Attorney General Griffin Bell; Gerhard Casper, president emeritus of Stanford University; William T. Coleman of O’Melveny & Myers; and former White House Counsel Lloyd Cutler of Washington’s Wilmer, Cutler & Pickering. With its report last week, the Defense Department said it has expressed “its full commitment to planning, executing, and overseeing the TIA program in a manner that protects privacy and civil liberties. DOD intends to make it a central element in the Department of Defense’s management and oversight of the TIA program.” Flint, of the Center for Democracy and Technology, echoing reactions by other civil liberties groups, said that the report leaves unanswered a fundamental question: “Is this program going to work?” she asked. “If it’s not going to work, there’s no reason to argue about privacy implications. If we do decide to go forward with it, then we really need to consider what the privacy framework should be. Right now there isn’t one.”

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