Pentagon panelists want to study entire privacy 'iceberg'

Originally chartered to examine the issues surrounding an experiment in anti-terrorism technology, the Pentagon's Technology and Privacy Advisory Committee (TAPAC) cannot restrict its deliberations to merely one program anymore, its members said on Thursday.

The panel was created to study the Terrorism Information Awareness (TIA) project, which called for "mining" commercial databases for information on potential terrorists. But John Marsh, a member of the eight-person board chartered in February, said TIA is "just the tip of the iceberg."

Congress subsequently killed the funding for TIA, but Defense Secretary Donald Rumsfeld instructed the committee to continue holding hearings and to present a report on privacy and data-mining issues to the Defense Department and Congress. Marsh, a former Army secretary, said the committee needs to articulate a "national policy on surveillance technology and privacy" regarding the actions of government.

He and other TAPAC members debated the approach they should take to producing their report after taking testimony in their final two-day meeting last week. The committee members listened to Sen. Ron Wyden, D-Ore.; former Virginia Gov. James Gilmore, a Republican; Rep. Jerrold Nadler, D-N.Y.; and current Defense officials and former Justice Department officials.

"[T]he thing that struck me most of all was the sense that the Congress is struggling with the same hard issues we are and is looking for us to help," said Newton Minow, a former FCC chairman at Sidley and Austin who chairs TAPAC. "That is a very big responsibility."

In an interview, Minow said he hopes the committee will finish its report within six weeks, even though it is not due until February. Defense allotted $200,000 to TAPAC and appointed Lisa Davis, an assistant deputy undersecretary at Defense, as executive director. Minow also has hired Fred Cate, an Indiana University privacy law expert who has frequently opposed legislative restrictions on the private sector's use of commercial data, to help write the report.

Gerhard Casper, a law professor and president emeritus for Stanford University, agreed with Marsh that the committee must go beyond TIA. "That tip has been cut off, so we are left only with the remainder of the iceberg," Casper said.

Casper also referred to "an ocean of an almost unlimited number of floating icebergs, each of them databases" with implications for privacy and national security. He said that he had come to the conclusion it would be impossible to reach conclusions about data mining by the government without also addressing commercial uses of databases.

"Once we get into the area of private collection of technology, we change the dynamics of the discussion in a very serious way," committee member Floyd Abrams objected. "When we talk about private parties' use of lawfully obtained information, then we are intruding into an area that has significant First Amendment protections."

Other committee members include: Zoe Baird, director of the Markle Foundation; Griffin Bell, a former U.S. attorney general and appeals-court judge; William Coleman, a former chairman and CEO of BEA, an infrastructure company; and Lloyd Cutler, a former White House counsel.

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