More information sharing raises privacy, security questions
If there was going to be a slogan driving the creation of the new Homeland Security Department, it could be, "It's information sharing, stupid!"
It is a constant refrain from President Bush, White House Homeland Security Director Tom Ridge and the heads of all the top Cabinet agencies. At a July hearing culminating the House leadership's consideration of a bill to create the new department, Attorney General John Ashcroft imparted the "fundamental fact of the war on terrorism: that information is the best friend and most valuable resource of law enforcement."
But the enshrinement of information sharing as Washington's collective wisdom for ensuring homeland security neatly skirts a set of key questions posed by the business world, privacy advocates and individuals: What kind of personal information is being shared? How will it aid the police? And will there be safeguards for information on law-abiding citizens?
The debate over citizens' privacy has undergone a dramatic overhaul since the terrorist attacks on Sept. 11, 2001. Before that date, most legislative privacy initiatives sought to check businesses' use of consumers' personal information. Now, the concern is how government will use such data.
The first wave was the passage of an anti-terrorism law in October 2001 that contained modifications to electronic surveillance law-many of them long sought by law enforcement officials, but without legislative momentum until the attacks.
Among the most important were provisions designed to put e-mail communications on par with telephone calls. Courts have interpreted the Fourth Amendment's bar on unreasonable searches and seizures to mean that the police must demonstrate to a judge that they have probable cause that a suspect has committed a crime before obtaining a telephone wiretap or the contents of an e-mail message.
The new law put e-mail trafficking information under the lower standard that currently exists for "pen registers" or "trap and trace" orders; those subpoenas permit police to get the telephone numbers of people who dial or receive calls from the target of a criminal investigation.
But many privacy groups fear that information about Web searches is now available to police under the lower standard, which does not require a judge's approval. Those fears are compounded by another key provision where individual privacy butts into the information-sharing mantra: eliminating the longstanding distinction between conventional wiretaps and those conducted under the 1978 Foreign Intelligence Surveillance Act.
The FBI's failure to coordinate suspicions about the Sept. 11 terrorists' flight-school activities with the CIA's sketchy leads about al-Qaeda attacks overseas created pressure to share foreign intelligence and criminal justice leads more freely.
Ashcroft proposed a series of changes, including a March proposal that would have permitted prosecutors to order FISA wiretaps. Originally designed to target non-citizen agents of a foreign power, such warrants do not require probable cause and are far more intrusive than conventional electronic surveillance.
The 2001 anti-terrorism law's FISA changes assumed added significance when a unanimous panel of seven judges on the secret Foreign Intelligence Surveillance Court in May rejected the Ashcroft proposal for obliterating what they said was a still-viable distinction between foreign and domestic surveillance.
The Justice Department appealed the decision this month to the Foreign Intelligence Surveillance Court of Review, the first-ever appeal from the court established under FISA to grant wiretaps. The case will not be the last pitting privacy rights against homeland security. And it is not clear that law enforcement will win all the battles.
A second wave in the debate that is now gaining steam centers on proposals for national identification cards or systems. Pending ideas include bills that would standardize state driver's licenses by requiring a biometric identifier-like a retinal scan-and linking state databases. Sen. Richard Durbin, D-Ill., and Reps. Tom Davis, R-Va., and James Moran, D-Va., are among the plan's advocates, but they are likely to be outgunned by their enemies, including House Majority Leader Dick Armey, R-Texas.In the House homeland security bill, Armey included a provision barring Congress from requiring a national driver's license or ID card.
After a year on the defense, privacy advocates are now scoring some limited victories. The House Judiciary Committee this month approved a bill that would require federal agencies to assess the privacy impact of proposed regulations. A pending Senate measure, meanwhile, would create a commission to balance privacy and security.
And polls show that consumer concern about privacy is increasing. According to the Harris Poll, the percentage of Americans who favored expanding government monitoring of cell phones and e-mails dropped from 54 percent last September to 44 percent in March. And the 68 percent that favored a national ID system in March had dropped to 59 percent in the recent poll.