Perspective: Sidelining Homeland Security's privacy chief

The Department of Homeland Security's privacy officer can't do her job. You can thank Congress for that strange state of affairs.

When politicians were concocting the massive bureaucracy a few years ago, they handed the privacy officer impressive-sounding tasks such as "assuring" that new technologies do not erode privacy and "evaluating" the impact of new government programs.

But Congress also neglected to give the job holder the power to twist arms and actually investigate privacy violations.

Nuala O'Connor
Kelly, privacy officer,
Department of
Homeland Security

Nuala O'Connor Kelly, who got the post in April 2003, seems to be honestly trying to report on the sprawling bureaucracy's privacy performance. To her credit, she's also spoken out against national identity cards. (While Kelly's choice of advisory committee members is slightly bizarre, let's put that aside for the moment.)

But internal DHS documents show that Kelly does not have the authority that any true privacy officer needs.

"Although the chief privacy officer by statute is required to investigate complaints of privacy violations, she does not have subpoena authority," Department of Homeland Security lawyer Elizabeth Withnell wrote in a declaration filed in a lawsuit. "She must therefore rely on voluntary submissions of information in order to conduct her investigation."

In other words, if Homeland Security employees don't want to answer uncomfortable questions, they can simply shut up.

Another internal DHS document (PDF)--obtained by the Electronic Privacy Information Center--reveals the difficulties that Kelly has encountered when asking recalcitrant bureaucrats to disgorge potentially embarrassing information.

Kelly was looking into how the Transportation Security Administration was involved with the transfer of passenger data from JetBlue Airways to the Defense Department. She started asking questions. She was rebuffed.

"I had sent my first inquiry to TSA public affairs, my second to (the agency's risk assessment office), but information has not been forthcoming," Kelly said in e-mail to Carol DiBattiste, the transportation security agency's deputy administrator, in November 2003. "This is particularly disturbing...We're getting better information from outside then we have from our own folks at this time."

The department's privacy officer doesn't even have the clear ability to report abuses to Congress directly.

DiBattiste sounded like she was replying to a pesky reporter when she wrote back: "TSA Public Affairs has no information in response to your request."

How fitting, then, that DiBattiste landed a plum $500,000-a-year job last month with privacy-impaired company ChoicePoint. (Remember this figure the next time you hear about purportedly underpaid government bureaucrats.)

The Department of Homeland Security's privacy officer doesn't even have the clear ability to report abuses to Congress directly. Because the law is ambiguous, Kelly provided her last annual privacy report (PDF) to then-Secretary Tom Ridge for his office to review before it became public.

Another Homeland Security officer, an ombudsman tasked with resolving immigration-related complaints, is far more independent. Federal law says that the ombudsman's annual report "shall be provided directly to (Congress) without any prior comment or amendment from the Secretary, Deputy Secretary, Director of the Bureau of Citizenship and Immigration Services, or any other officer or employee of the department."

A modest proposal
So how can this be fixed? If Congress and the Bush administration actually wanted additional scrutiny of any Department of Homeland Security wrongdoing, here's how they could tweak the law:

• Grant the privacy officer the authority to require Homeland Security employees to produce documents and answer relevant questions. This is akin to the power that the security department's inspector general already has.

• Improve the independence of the privacy officer by appointing her for a specific term. Canada appoints its federal privacy commissioner for seven years.

• Extend the same privilege of reporting directly to Congress that the department's ombudsman enjoys.

A more radical approach would be to reward the privacy officer for blowing the whistle on official malfeasance. If Kelly or her successors expose privacy violations and the program were terminated, the offending departmental agency would see its budget shrink, while the privacy office's budget would increase proportionately. That would nicely align privacy protections with the bureaucratic urge to maximize budgets.

Michael Chertoff became the second Homeland Security secretary in February. After the JetBlue fiasco and other civil liberties missteps at his agency, Chertoff might find that giving some muscle to the privacy officer would be an easy way to restore confidence in it.

Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.

More Perspectives

[Too Old For IT]

Federal Government Has No Interest in Individual Privacy

ANY Privacy Officer post at the federal level is merely a straw man. Rather than any interest in personal privacy, the federal government has a vested interest in the minutia of each and every person's life in the United States. "Personal Privacy" at the federal level translates to "even the part time interns who mop the floor can have access to every citizens personal, private and potentially embarrassing data as well as uncorroborated rumor, lies and innuendo that we have assembled from whatever source".

And you thought the KGB in the USSR was bad.

Constructive Privacy Debate

I consider myself to be an ardent libertarian and privacy advocate, but I think it is more important to have a constructive debate on privacy than it is to be dogmatic and absurd. It is simply incorrect to say that the federal government has an interest in the minute details of everyone's lives. Nobody wants another J Edgar Hoover FBI state. As inefficient as the government is, this would be a nightmare for them. We certainly don't live in a KGB state, but we do live during a time in which the government is listening to a population demanding to be made to feel safer. I for one don't agree with giving up liberty and privacy for safety, but unfortunately I'm in the minority. While the majority may not expressly want to give up their privacy, they are ignorant of the important consequences of their votes, actions, and demands for the federal government to be made safer. In the past, government inefficency has all but guaranteed our privacy. While embarassing, the fact that the government issued visas to the terrorists post 9/11 is somewhat reassuring in the sense that I know that my activities are probably pretty private. On the other hand, the government is becoming more efficient primarily through the use of technology that wasn't even conceived of when our privacy laws were written. As a nation (through congress), we need to have a constructive debate on what our expectations of privacy are, and what sort of procedures and technologies we feel are acceptable in the name of security and which are not.

[Too Old For IT]

Federal Government Has No Interest in Individual Privacy

ANY Privacy Officer post at the federal level is merely a straw man. Rather than any interest in personal privacy, the federal government has a vested interest in the minutia of each and every person's life in the United States. "Personal Privacy" at the federal level translates to "even the part time interns who mop the floor can have access to every citizens personal, private and potentially embarrassing data as well as uncorroborated rumor, lies and innuendo that we have assembled from whatever source".

And you thought the KGB in the USSR was bad.

Constructive Privacy Debate

I consider myself to be an ardent libertarian and privacy advocate, but I think it is more important to have a constructive debate on privacy than it is to be dogmatic and absurd. It is simply incorrect to say that the federal government has an interest in the minute details of everyone's lives. Nobody wants another J Edgar Hoover FBI state. As inefficient as the government is, this would be a nightmare for them. We certainly don't live in a KGB state, but we do live during a time in which the government is listening to a population demanding to be made to feel safer. I for one don't agree with giving up liberty and privacy for safety, but unfortunately I'm in the minority. While the majority may not expressly want to give up their privacy, they are ignorant of the important consequences of their votes, actions, and demands for the federal government to be made safer. In the past, government inefficency has all but guaranteed our privacy. While embarassing, the fact that the government issued visas to the terrorists post 9/11 is somewhat reassuring in the sense that I know that my activities are probably pretty private. On the other hand, the government is becoming more efficient primarily through the use of technology that wasn't even conceived of when our privacy laws were written. As a nation (through congress), we need to have a constructive debate on what our expectations of privacy are, and what sort of procedures and technologies we feel are acceptable in the name of security and which are not.

Good Reporting

That's a good article. It points out what the flaw is, where it has been remedied given similar flaws in similar systems, and some remedies applied.

Good reporting.

Good Reporting

That's a good article. It points out what the flaw is, where it has been remedied given similar flaws in similar systems, and some remedies applied.

Good reporting.

[Theosophe74]

Take action

If you agree that the DHS privacy officer does not have the authority she requires to do her job, express your concerns by contacting the DHS Comment Line: 202-282-8495 I know I will.

[Theosophe74]

Take action

If you agree that the DHS privacy officer does not have the authority she requires to do her job, express your concerns by contacting the DHS Comment Line: 202-282-8495 I know I will.

[atariboy]

Nice article

I also agree that this was a nice article. I initially thought that Homeland Security and privacy were very conflicting, although I can hope there is at least some consideration for privacy issues with national security inititives.

[atariboy]

Nice article

I also agree that this was a nice article. I initially thought that Homeland Security and privacy were very conflicting, although I can hope there is at least some consideration for privacy issues with national security inititives.

Some are More Equal than others

More Equal

The Socialist Workers Party National Campaign Committee and committees supporting candidates of the Socialist Workers Party (SWP) remain exempt from some FEC disclosure requirements for political committees. See advisory opinion AO 2003-2: http://www.fec.gov/pdf/record/2003/may03.pdf



In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court recognized that, under certain circumstances, the Act?s disclosure requirements as applied to a minor party would be unconstitutional because the threat to their First Amendment rights resulting from disclosure would outweigh the interest in disclosure. According to the Court?s opinion, ?minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim [for a reporting exemption] . . . The evidence offered need only show a reasonable probability that the compelled disclosure of a party?s contributors? names will subject them to threats, harassment, or reprisals from either the government or private parties.? 424 U.S. at 74.


Socialists defend right to campaign in elections - excerpt from The Militant,Vol. 67/No. 6, February 17, 2003
BY PAUL PEDERSON (http://ww.themilitant.com/2003/6706/670650.html)



The SWP won the exemption on the basis of the threat to First Amendment rights to free association posed by the disclosure of campaign contributors? names. The party?s recent request for extension of this protection cites 74 examples of harassment and threats--all since the previous extension was granted in 1996--directed at supporters of the Socialist Workers Party by right-wing individuals and groups, employers, and city, state, and federal police. It includes corroborating newspaper clippings, police reports, citations, and individual declarations.



The examples of harassment include 28 cases of police interference with election campaign activities, such as stopping campaign supporters from distributing literature, threatening to arrest campaign workers, photographing participants in an antiwar demonstration, issuing citations, and in many cases expressing hostility to the views of the socialists and their right to present them publicly.



Dozens of other examples are cited of threats and disruption, such as office break-ins and vandalism, threats by bosses, death threats and physical assaults such as the overturning of campaign tables by right-wing or racist individuals.

End of excerpt



It is often useful to examine exceptions to rules when attempting to understand their necessity. The following thoughts come to mind when contemplating this exemption:



Is this a great country or what? We bend over backwards to accommodate those who would destroy our way of life.? If you want to overthrow the government of the United States and replace it with a Communist Dictatorship you are exempt from Federal Election Commission regulations that require the disclosure of personal information.



Less Equal



But, if all you want to exercise first Amendment rights, by coordinating with others to effectively communicate your ideas, promote candidates of your choice and petition the government for lawful change you must disclose your full name, mailing address, occupation and the name of your employer.



Under the Federal Election Campaign Act (the Act), political committees are required to file reports with the FEC disclosing their receipts and disbursements, including the identification of individuals and other persons who have made contributions aggregating $200 or more during a calendar year. 2 U.S.C. §434(b)(3), (5) and (6). According to FEC regulations, identification, in the case of an individual, includes his or her full name, mailing address, occupation and the name of his or her employer. Under the Act, the treasurer of a political committee is required to put forth his or her best efforts to obtain this information.



This Vietnam Veteran fought the communist and paid the price for full disclosure:



Non-adjacent paragraphs excerpted from:

"Live" with TAE - http://www.taemag.com/issues/articleID.18461/article_detail.asp
John O'Neill



One of the most dramatic stories of Election 2004 was the coalescence of a large group of Vietnam veterans dedicated to the idea that John Kerry was not fit to become America's Commander in Chief. Many of those who joined Swift Boat Veterans for Truth had served with Kerry in Vietnam. And his behavior there--and, even more, upon his return--convinced them that Kerry could not be trusted to lead our nation in wartime.



The very first ad we filed began with a man named Al French, a very highly decorated Vietnam veteran, who served as a prosecutor in Clackamas County, Oregon. Immediately, 23 different complaints were filed with the state bar of Oregon against Mr. French. In addition, he was fired from his job in Oregon as an assistant prosecutor supposedly on the basis of a ten-year-old complaint that had never been processed by his boss before that time.

End of excerpt



Balance the above with this scenario:



Excerpt from:

Should Socialist Parties and Candidates Be Exempt from FEC Reporting? - (http://www.leftwatch.com/archives/years/2003/000023.html)
By Brian Carnell - Monday, July 21, 2003


Why should minor party donors, be exempt from this so long as every other donor is required by law to have this information disclosed? Imagine, for example, that the CEO of BASF decided that he wanted to donate a large amount of money to the campaign of some minor party whose basic platform was white supremacist in nature. Why should that party be able to obtain an exemption and hide such donation's from public view simply because the ideas of the white supremacist party are unpopular (and would certainly subject the donor to likely harassment) -- while at the same time all of the donations to major parties would be revealed in a nice table layout on a web page?

End of Excerpt



Anonymous political speech goes back to the very beginning of our country with the publishing of the Federalist Papers. King George wanted every American press to have a unique number carved in its platen so every printed page could be traced back to the source. America rebelled. Could the rebellion succeed today?



Irregardless, the law should apply equally and to all. The SWP exemption, granted by the FEC, is contrary to 5th Amendment due process and State Election Boards that permit similar exemptions run afoul of the equal protection clause of the 14th Amendment.

Some are More Equal than others

More Equal

The Socialist Workers Party National Campaign Committee and committees supporting candidates of the Socialist Workers Party (SWP) remain exempt from some FEC disclosure requirements for political committees. See advisory opinion AO 2003-2: http://www.fec.gov/pdf/record/2003/may03.pdf



In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court recognized that, under certain circumstances, the Act?s disclosure requirements as applied to a minor party would be unconstitutional because the threat to their First Amendment rights resulting from disclosure would outweigh the interest in disclosure. According to the Court?s opinion, ?minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim [for a reporting exemption] . . . The evidence offered need only show a reasonable probability that the compelled disclosure of a party?s contributors? names will subject them to threats, harassment, or reprisals from either the government or private parties.? 424 U.S. at 74.


Socialists defend right to campaign in elections - excerpt from The Militant,Vol. 67/No. 6, February 17, 2003
BY PAUL PEDERSON (http://ww.themilitant.com/2003/6706/670650.html)



The SWP won the exemption on the basis of the threat to First Amendment rights to free association posed by the disclosure of campaign contributors? names. The party?s recent request for extension of this protection cites 74 examples of harassment and threats--all since the previous extension was granted in 1996--directed at supporters of the Socialist Workers Party by right-wing individuals and groups, employers, and city, state, and federal police. It includes corroborating newspaper clippings, police reports, citations, and individual declarations.



The examples of harassment include 28 cases of police interference with election campaign activities, such as stopping campaign supporters from distributing literature, threatening to arrest campaign workers, photographing participants in an antiwar demonstration, issuing citations, and in many cases expressing hostility to the views of the socialists and their right to present them publicly.



Dozens of other examples are cited of threats and disruption, such as office break-ins and vandalism, threats by bosses, death threats and physical assaults such as the overturning of campaign tables by right-wing or racist individuals.

End of excerpt



It is often useful to examine exceptions to rules when attempting to understand their necessity. The following thoughts come to mind when contemplating this exemption:



Is this a great country or what? We bend over backwards to accommodate those who would destroy our way of life.? If you want to overthrow the government of the United States and replace it with a Communist Dictatorship you are exempt from Federal Election Commission regulations that require the disclosure of personal information.



Less Equal



But, if all you want to exercise first Amendment rights, by coordinating with others to effectively communicate your ideas, promote candidates of your choice and petition the government for lawful change you must disclose your full name, mailing address, occupation and the name of your employer.



Under the Federal Election Campaign Act (the Act), political committees are required to file reports with the FEC disclosing their receipts and disbursements, including the identification of individuals and other persons who have made contributions aggregating $200 or more during a calendar year. 2 U.S.C. §434(b)(3), (5) and (6). According to FEC regulations, identification, in the case of an individual, includes his or her full name, mailing address, occupation and the name of his or her employer. Under the Act, the treasurer of a political committee is required to put forth his or her best efforts to obtain this information.



This Vietnam Veteran fought the communist and paid the price for full disclosure:



Non-adjacent paragraphs excerpted from:

"Live" with TAE - http://www.taemag.com/issues/articleID.18461/article_detail.asp
John O'Neill



One of the most dramatic stories of Election 2004 was the coalescence of a large group of Vietnam veterans dedicated to the idea that John Kerry was not fit to become America's Commander in Chief. Many of those who joined Swift Boat Veterans for Truth had served with Kerry in Vietnam. And his behavior there--and, even more, upon his return--convinced them that Kerry could not be trusted to lead our nation in wartime.



The very first ad we filed began with a man named Al French, a very highly decorated Vietnam veteran, who served as a prosecutor in Clackamas County, Oregon. Immediately, 23 different complaints were filed with the state bar of Oregon against Mr. French. In addition, he was fired from his job in Oregon as an assistant prosecutor supposedly on the basis of a ten-year-old complaint that had never been processed by his boss before that time.

End of excerpt



Balance the above with this scenario:



Excerpt from:

Should Socialist Parties and Candidates Be Exempt from FEC Reporting? - (http://www.leftwatch.com/archives/years/2003/000023.html)
By Brian Carnell - Monday, July 21, 2003


Why should minor party donors, be exempt from this so long as every other donor is required by law to have this information disclosed? Imagine, for example, that the CEO of BASF decided that he wanted to donate a large amount of money to the campaign of some minor party whose basic platform was white supremacist in nature. Why should that party be able to obtain an exemption and hide such donation's from public view simply because the ideas of the white supremacist party are unpopular (and would certainly subject the donor to likely harassment) -- while at the same time all of the donations to major parties would be revealed in a nice table layout on a web page?

End of Excerpt



Anonymous political speech goes back to the very beginning of our country with the publishing of the Federalist Papers. King George wanted every American press to have a unique number carved in its platen so every printed page could be traced back to the source. America rebelled. Could the rebellion succeed today?



Irregardless, the law should apply equally and to all. The SWP exemption, granted by the FEC, is contrary to 5th Amendment due process and State Election Boards that permit similar exemptions run afoul of the equal protection clause of the 14th Amendment.