CDT POLICY POST Volume 10, Number 22, December 6, 2004

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

(1) Intelligence Reform Bill Passes Congress, Ends Up A Mixed Bag for Civil Liberties

(3) Information Sharing Provisions Create Oversight, Privacy Protections

(4) Troublesome New Surveillance Authority in Legislation

(5) More Privacy Officers May Be On the Way

(6) Other Provisions Have Civil Liberties Implications

(1) Intelligence Reform Bill Passes Congress, Ends Up A Mixed Bag for Civil Liberties

The House and Senate have voted to pass the much-debated intelligence reform bill, which responds at least in part to the recommendations of the 9/11 Commission. Several months ago, the House and Senate passed significantly different versions of the bill, and as late as last week it was unclear whether a final bill would be brought to a vote.

The 615-page legislation, which the President is expected to sign shortly, is a mixed bag for civil liberties. Many of the most egregious provisions contained in earlier provisions of the bill were removed, but other provisions that protected civil liberties also were removed or watered down.

Conference Report on and Text of Intelligence Reform Bill, http://www.fas.org/irp/congress/2004_rpt/h108-796.html

(2) Civil Liberties Board Has Potential

The intelligence reform bill creates a Privacy and Civil Liberties Oversight Board in the Executive Office of the President whose purpose is to ensure that privacy and civil liberties are considered in the policymaking process. Congress was responding to one of the recommendations of the 9/11 Commission Report, which acknowledged that counterterrorism efforts are leading to more powerful government powers and that "adequate supervision of the executive's use of powers to ensure protection of civil liberties" is necessary. Although some powers of the Board were weakened compared to an earlier Senate version, the Board has the potential to be an important force in protecting civil liberties if the White House gives the Board a role in the policymaking process, as Congress intended.

(3) Information Sharing Provisions Create Oversight, Privacy Protections

The bill attempts to address one of the major problems in U.S. counterterrorism efforts: the failure of government agencies to share information and "connect the dots." It takes a comprehensive approach, requiring the Executive Branch to first develop a system design and privacy guidelines for information sharing. Modeled largely on the Senate bill, the provision calls 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
the involvement of the civil liberties board to oversee and ensure privacy safeguards.

CDT urges Congress to continue to take a strong oversight role with regard to information sharing to ensure that appropriate safeguards are in place to protect civil liberties.

(4) Troublesome New Surveillance Authority in Legislation

Although many "Patriot Act II" provisions did not make it to the final bill, a few of those sections survived. The "lone wolf" provision extends secret domestic intelligence surveillance under the Foreign Intelligence Surveillance Act to individuals without any suspected connection to a foreign terrorist organization or foreign government -- an unnecessary and potentially unconstitutional extension of government power. However, the legislation "sunsets" the lone wolf provision at the end of 2005, when some other surveillance powers in the USA PATRIOT Act expire.

(5) More Privacy Officers May Be On the Way

One provision of the intelligence reform bill indicates the sense of Congress that agencies with law enforcement or counterterrorism responsibilities should designate privacy officers. A more substantive provision requiring privacy officers in departments and agencies was included in this year's omnibus appropriations bill, which the President signed into law today. Although it is unclear precisely what departments and agencies are covered, the two provisions taken together suggest that at least such entities as the Department of Justice, Department of Treasury and Department of State should have privacy officers.

(6) Other Provisions Have Civil Liberties Implications

Other provisions of the bill also have civil liberties implications, both good and bad. The bill:

requires that the Transportation Security Agency create redress procedures for airline passenger screening;
clarifies and strengthens the roles of the Department of Homeland Security Privacy Officer, Civil Rights and Civil Liberties Officer and Inspector General in protecting privacy and civil liberties;
requires additional reports to Congress about intelligence surveillance within the United States under the Foreign Intelligence Surveillance Act;
expands sharing of grand jury information with foreign governments;
requires the Attorney General to report to Congress about the process for doing criminal history background checks of job applicants for private employers;
requires that cruise ship passengers be checked against terrorist watch lists; and
increases funding for research into biometric-based mass identification technologies.

In addition, in order to pass the bill, Congress agreed to some basic national standards for driver's licenses and birth certificates, and agreed to debate other driver's license and identification-related issues next year.

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

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