CDT POLICY POST Volume 10, Number 18, October 14, 2004

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from
The Center For Democracy and Technology

(1) Intel Reform Bills Threatening Civil Liberties on Fast Track

(2) Senate Information Sharing Provisions Include Privacy Requirements and Oversight

(3) New Intelligence Agency Raises Concerns

(4) House Bill Laden with PATRIOT 2 Provisions

(5) Both Bills Contain Some Positive Provisions on Privacy

(1) Intel Reform Bills Threatening Civil Liberties on Fast Track

House and Senate staff are meeting to resolve differences between competing versions of intelligence reform legislation intended to implement recommendations of the 9/11 Commission. While press reports have stressed differences between the bills, compromise is likely within the next week. Important civil liberties issues are at stake.

The House bill, drafted in a highly partisan atmosphere, is of special concern. The bill contains a few privacy-enhancing provisions, but is weighted down with PATRIOT 2 expansions of government discretion, harsh immigration-related provisions, the outlines of a national ID card, and a welter of "information sharing" mandates and systems without a coherent plan or civil liberties guidelines.

CDT is urging members of Congress to adopt the Senate version of the bill, but to reconsider that bill's provisions on ID cards and checkpoint screening.

(2) Senate Information Sharing Provisions Include Privacy Requirements and Oversight

Both bills attempt to address one of the major problems in US counter-terrorism efforts: the failure of government agencies to share information and "connect the dots."

The Senate bill is far preferable. It takes a comprehensive approach, requiring the Executive Branch to first develop a system design and privacy guidelines for information sharing. Section 206 of the Senate bill calls not for centralization of data but rather for --

a set of pointers and directories to information, which can be shared only with appropriate authorization;
adoption of policy and privacy guidance before any system is built;
a requirement on the front end of a system design plan weighing costs and impacts;
phased implementation to allow Congressional and public reaction; and
a strong civil liberties board to oversee and ensure privacy safeguards.

The Senate bill requires the Administration to submit its system plan and the privacy guidelines to Congress before major implementation can go forward. After the plan and guidelines are submitted, Congress can (and should) hold hearings. Congress can rewrite the guidelines if they are inadequate. The normal appropriations process will have to be followed.

While the Senate proposal is based on accountability, privacy guidelines, and Congressional oversight, the House bill offers an incoherent amalgam of information sharing provisions without privacy guidelines or other safeguards. Sections 2192 and 3101 of the House bill should be deleted in lieu of § 206 of the Senate bill.

The House bill also includes other information collection and sharing initiatives without adequate privacy safeguards or redress, including § 3081, which requires a study on creating a lifetime travel history database on American citizens, and §§ 2142 and 2144, which expand private employer access to FBI criminal history records.

Both bills include provisions that would increase reliance on the driver's license as a de facto national ID card. The Senate bill includes language added at the last minute promoting more ID checks at screening points. These are complex and difficult issues that cannot be safely resolved under the time pressure of an election year. Therefore, CDT believes that ID card and screening provisions of both bills should be reconsidered.

CDT Statement on Civil Liberties and Information Sharing, Oct. 4, 2004
Enhancing Security and Civil Liberties -- An open letter from Dave Farber, Esther Dyson and Tara Lemmey, Oct. 6, 2004

(3) New Intelligence Agency Raises Concerns

Both bills call for the creation of a National Intelligence Director (NID) to coordinate Intelligence reform. Coordination is certainly needed, but both bills lack clarity on a few key questions:

Neither bill imposes limits on CIA and Pentagon domestic covert operations. This should be fixed.
The National Intelligence Director appears to have authority to "task" the FBI. It should be made clear that this does not allow the NID to direct domestic surveillance outside the normal constraints to which the FBI is subject.
The House bill includes a new definition of national intelligence that includes any and all domestically gathered intelligence and purely domestic threats. The Senate version is much narrower and should be adopted.

(4) House Bill Laden with PATRIOT 2 Provisions

The House bill contains a number of provisions from the Justice Department's never-introduced PATRIOT 2 legislation, expanding government powers, infringing on privacy, and limiting due process. While many of these do not relate to the Internet or other communications technologies, CDT believes it is a perversion of the process to include them in legislation intended to reform the intelligence agencies. Once again, a genuinely urgent issue - the need to reform the intelligence agencies - is being used for unrelated expansions of government discretion.

Here are the PATRIOT 2 provisions, which CDT is urging Senators to reject:

§ 2001 - extension of secret domestic intelligence surveillance to individuals without proven connection to a foreign terrorist organization or foreign government (FISA "lone wolf");
§ 2043 material support - expansion to cover mere membership in an organization;
§§ 2602-2603 - expansion of preventive detention and lifetime supervision;
§§ 2501-2503 - expansion of death penalty;
§ 4051 - expanded discretion to designate foreign groups as terrorist organizations;
§ 2191 - grand jury information - sharing grand jury information with foreign governments without adequate safeguards;
§ 3010 - suspension of habeas corpus in immigration cases.

The House bill also contains a number of immigration provisions going beyond the scope of the 9/11 Commission Report, which should be deleted: §§ 3006-3010, 3031-3035, 3052.

(5) Both Bills Contain Positive Provisions on Privacy

Both the House and the Senate bills contain provisions that could enhance privacy protection. We would like to see all of these provisions included in the final bill, but if we had to choose one bill over the other, we would chose the Senate bill.

Here are the good privacy provisions in the Senate bill that should be retained (references are to sections of bill as passed out of Government Affairs Committee):

§ 211 - creating a strong privacy and civil liberties oversight board;
§§ 126-127 and 212 - creating privacy and civil liberties officers in federal agencies involved in intelligence or law enforcement activities;
§ 206 - requiring privacy guidelines before information sharing can go forward;
§ 141 - establishing an Inspector General for the office of the new National Intelligence Director.

Here are the good privacy/civil liberties provisions in House bill:

§ 2173 - requiring no-fly/selectee list guidelines and a report by the Government Accountability Office (GAO);
§ 5091 - the Federal Agency Privacy Protection Act (FAPPA) - requires federal agencies to perform Privacy Impact Assessments on proposed federal rules that entail collection of personally-identifiable information
§ 5092 - establishes Chief Privacy Officers at agencies involved in law enforcement or counter-terrorism, similar to §212 of the Senate bill.

More Information:

CDT testimony in support of privacy officers, Feb. 10, 2004
CDT testimony in support of the Federal Agency Privacy Protection Act (formerly the Defense of Privacy Act), July 22, 2003

Detailed information about online civil liberties issues may be found at http://www.cdt.org/.

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