From: CDT Info [mailto:[log in to unmask]]
Sent: 14 October 2004 18:47
To: [log in to unmask]
Subject: Policy Post 10.18: Civil Liberties at Risk in Intelligence Reform
Bills
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 --
(i) a set of pointers and directories to
information, which can be shared only with
appropriate authorization;
(ii) adoption of policy and privacy guidance before any system is built;
(iii) a requirement on the front end of a system
design plan weighing costs and impacts;
(iv) phased implementation to allow Congressional and public reaction; and
(v) 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
http://www.cdt.org/security/20041004informationsharing.pdf
Enhancing Security and Civil Liberties -- An open
letter from Dave Farber, Esther Dyson and Tara
Lemmey, Oct. 6, 2004
http://www.interesting-people.org/archives/interesting-people/200410/msg0004
8.html
_______________________________________________
(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.
CDT testimony in support of privacy officers,
Feb. 10, 2004
http://www.cdt.org/testimony/20040210dempsey.shtml
CDT testimony in support of the Federal Agency
Privacy Protection Act (formerly the Defense of
Privacy Act), July 22, 2003
http://www.cdt.org/testimony/030722dempsey.shtml
__________________________________
Detailed information about online civil liberties
issues may be found at http://www.cdt.org/.
This document may be redistributed freely in full
or linked to
http://www.cdt.org/publications/pp_10.18.shtml.
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 10.18 Copyright 2004 Center for Democracy and Technology
--
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Joshua Ruihley
Center for Democracy & Technology
1634 Eye St. NW Suite 1100
Washington, DC 20006
Voice: (202) 637-9800 Ext. 298
Fax: (202) 637-0968
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http://www.cdt.org
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