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Bushwhacking privacy
The administration has delayed and defused privacy-oversight efforts until Bush’s pet projects are in place. By then, any oversight will be beside the point.

OVER THE NEXT few months, the US government plans to roll out a series of initiatives to enhance the nation’s security, each carrying the potential to strip away more and more of your privacy in the name of protecting your liberty.

In theory, all these projects should have been planned, designed, and launched with input from the Privacy and Civil Liberties Oversight Board, which was created last year by near-unanimous congressional assent at the urging of the 9/11 Commission, to protect against overly intrusive security practices in all federal agencies.

In reality, however, the Bush administration has delayed staffing and funding the interagency privacy board while its pet projects have moved to fruition, including the following:

• Secure Flight, a new air-travel passenger-screening system debuting this summer, will put a host of "watch list" information, possibly including criminal records, at the fingertips of airline employees.

• New passports will soon be fitted with radio-frequency identification (RFID) tags that transmit all the holder’s personal information — a desirable target for identity thieves using "skimming" equipment.

• States will now be required to meet national-security standards for drivers’ licenses, increasing the amount of information collected and displayed.

• A new Homeland Security Operations Center Database will compile governmental intelligence, law-enforcement files, private-sector data, financial records, media reports, and material from commercial databases, and analyze them for suspicious activity or correlations.

Meanwhile, privacy advocates are already questioning the effectiveness and sincerity behind recent administration moves, which include establishing a weak Department of Homeland Security privacy-advisory board, and halfhearted attempts by other federal agencies to name privacy officers and ad hoc privacy committees. Add to that the current debate in Congress over reauthorization of the USA Patriot Act, which has long angered civil libertarians with its provisions permitting the FBI warrentless access to medical, student, and library records. "This year will pretty much determine whether we have any kind of privacy at all, because all of these things are coming to a head," says Bob Barr, former Republican congressman from Georgia.

FEW AMERICANS can precisely define what they expect of their government with regard to privacy, but, as with pornography, they know an intrusion when they see it. A privacy intrusion happens when you give information to one entity, and it hands it to another without your knowledge. It happens when information you give for one purpose gets used for another. It happens when your name appears on a watch list without a fair chance to prove that it doesn’t belong there. And it happens when a government agent looks into your activities without a good reason — one approved by a judge.

All these things have taken place over the last few years, as the federal government, understandably, moves zealously to implement systems and policies to stop potential terrorists. Which is precisely why last July’s 9/11 Commission Report recommended the creation of the interagency Privacy and Civil Liberties Oversight Board, and Congress created it as part of intelligence-reform legislation in December.

But George W. Bush has yet to nominate a single member to the board or provide it with a single dollar. For the 2006 fiscal year, the first when it will be funded, its budget is a pitiful $750,000.

Frustrated by the inaction, four senators — including Republican Susan Collins of Maine — sent an open letter of complaint to Bush’s chief of staff last month, while other congressmen are seeking to start over by creating a new privacy-oversight board. The administration has given no public reaction to the letter, and would not comment to the Phoenix.

But the delay should come as no surprise, because despite claiming publicly to support the idea of privacy protection, the administration has fought against it all along. "I think it’s fair to say that this is an administration that doesn’t care that much about privacy," says Fred Cate, director of the Center for Applied Cybersecurity Research at Indiana University and author of Privacy in the Information Age (Brookings, 1997). Cate recently served on a privacy-advisory committee for the Department of Defense, which, like the 9/11 Commission, called for the establishment of a government-wide privacy-oversight board. Its final recommendations, presented a year ago, have not been implemented.

In fact, soon after the release of the 9/11 Commission Report, Bush set out to undermine the suggestion, by creating the toothless President’s Board on Safeguarding Americans’ Civil Liberties by executive order in August 2004. The powerless entity, which never got off the ground, would have consisted only of executive-branch personnel — "the same people the board was supposed to be advising and keeping in check," says Tim Edgar, legislative counsel for the American Civil Liberties Union, in Washington, DC.

The leaders of the Senate Committee on Homeland Security, Collins and Joseph Lieberman of Connecticut, demanded something stronger. Several close observers, including Representative Tom Udall of New Mexico, tell the Phoenix that the negotiations ended with a quid pro quo: the senators agreed to give Bush the interagency-information-sharing powers he wanted in the intelligence-reform bill, and in return he let them create the privacy board, albeit a heavily watered-down version, to oversee the use of those powers.

But when Bush failed to staff and fund the board, the quo never materialized. "We thought that the bill actually did a good job creating privacy-oversight mechanisms," says Ari Schwartz, associate director of the Center for Democracy and Technology, a Washington-based government-watchdog group. "But none of them have been put in place."

Udall is now co-sponsoring a bill that would recreate the interagency privacy board with its originally conceived powers, including bipartisan nominations and subpoena power. Meanwhile, Collins and Lieberman, along with Democrats Richard Durbin of Illinois and Patrick Leahy of Vermont, are pressuring the White House to name members to the board and increase its funding. "I think they [the Bush administration] are solely focused on the security issues, with little interest in the protection of civil liberties," says Udall. "We are trying, in a bipartisan way, to restore some balance, and the Bush administration is opposing us."

Udall thinks Congress has leverage now, thanks to the upcoming reauthorization of the 2001 USA Patriot Act; many of the law’s most controversial portions, including expanded governmental surveillance powers, expire this December. "They want this bill badly," Udall says. Privacy advocates are trying to remove some provisions and add judicial oversight to others, including the notorious authority to snoop into library-borrowing records. The Bush administration, for its part, is trying to add even more snooping powers, including granting the FBI access to business records without a court order. "They’re trying to push on these other fronts that they know they won’t get, so they can act like they’re giving something up and still get their whole ball of wax," Udall says.

Meanwhile, the tug-of-war over the Privacy and Civil Rights Oversight Board is becoming increasingly moot, as privacy-invasive projects get up and running. A perfect example just occurred with the passage of the Real ID Act, signed into law last month. The act requires that every driver’s license display the holder’s permanent residence. That presents a significant privacy dilemma for the many states that currently exempt certain potential crime targets — judges, law-enforcement personnel, domestic-violence victims — who need to keep their addresses private.

A privacy-advisory group might have caught and avoided that problem — in fact, one was doing so. The Department of Transportation had assembled a committee to help ensure privacy in the new standards, and it was working on solving that exact problem, says Schwartz, who was on the committee. But rather than let the advisory body do its oversight work, Republicans sped the bill into law with the printed-address requirement intact — and dismantled the privacy committee.

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Issue Date: June 3 - 9, 2005
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