New law will exempt spies from Privacy Act

Thursday, June 8th, 2006

WASHINGTON, DC, United States (UPI) — A little-noticed proposal from the Senate Intelligence Committee would exempt federal agencies from important provisions of the Privacy Act in the name of the War against Terrorism.

The committee`s annual authorization bill, unanimously reported to the full Senate last month, would initiate a three-year ‘pilot program’ during which U.S. intelligence agencies would be able to access personal information about Americans held by other federal departments or agencies if it is believed relevant to counter-Terrorism or counter-proliferation.

In the wake of recent revelations about the administration`s use of data-mining and warrantless surveillance of telephone and internet communications in pursuit of the nation`s terrorist enemies, the provision seems certain to be controversial.

‘If this is enacted, the Privacy Act will look like Swiss cheese,’ ACLU legislative counsel Tim Sparapani told United Press International.

Sparapani said he was not reassured by the role the law envisages for the president`s Privacy and Civil Liberties Oversight Board, which would monitor the program and report to congressional intelligence committees as the three year sunset approached.

‘The board is stacked, four (Republicans) to one (Democrat),’ he said. ‘It is not truly independent’ because it is inside President Bush`s executive office, which put it ‘under the thumb of the president and his advisers,’ according to Sparapani.

Responding to a request for comment sent Monday afternoon to board Chairwoman Carol Dinkins, a White House official replied that the board would address the issue ‘if and when the provision becomes law.’

A Democratic committee staffer defended the proposal, telling UPI that the exemptions were ‘narrowly drawn to address the kinds of problems we found during our Sept. 11 inquiry,’ when U.S. agencies failed to pool information about known al-Qaida militants who were thus able to slip into the country.

At the moment, the 1974 Privacy Act broadly prohibits a federal government entity which has collected information about Americans from using it for any purpose other than the one or ones it was collected for. Information typically cannot be passed to other agencies or departments without the permission of the individual.

These restrictions ‘could prevent the sharing of intelligence information within the executive branch,’ notes the committee report accompanying the intelligence authorization bill, designated S 3237.

The report goes on to say that an ‘Information Sharing Working Group,’ made up of representatives from U.S. intelligence and law enforcement agencies and from the Departments of Defense and Homeland Security, had recommended changes to the Privacy Act restrictions on personal information sharing in December 2004.

The committee included similar provisions in its authorization bill last year, but that legislation died after an anonymous hold — apparently from one or more GOP Senators angered by Democrat-authored provisions on detention and interrogation — prevented it from reaching the Senate floor.

Though the Privacy Act created 12 exceptions to the restriction on data-sharing, including for information used ‘to support a civil or criminal law enforcement activity under certain proscribed circumstances,’ the committee report says there is no such exemption for intelligence activities.

Section 310 of the committee`s new bill creates one, exempting all U.S. intelligence agencies from data-sharing restrictions where the information ‘is relevant to a lawful and authorized foreign intelligence or counter-intelligence activity.’ If the information does not ‘pertain to an identifiable individual’ then the director of national intelligence or one his deputies has to approve the sharing.

Under the provision, intelligence agencies can also ask for Privacy Act-covered records from non-intelligence agencies — and be entitled to get them — if the information relates to international Terrorism or proliferation, and if the receiving intelligence agency is ‘lawfully authorized to collect or analyze the information.’

If in doubt about whether information is covered, agency heads can consult either the attorney general or the director of national intelligence.

No court order or other judicial instrument is required, but to get records from a non-intelligence agency the director of the agency that wants the records must put the request in writing.

In language that seems calculated to assuage the fears of privacy advocates, the bill states that ‘nothing in the amendments made by this section shall be deemed to constitute authority for the receipt, collection, or retention of information unless’ it is ‘otherwise authorized by the Constitution, laws, or executive orders of the United States.’

The Democratic staffer argued that ‘this is lawfully collected information. What sense does it make not to share it in an appropriately limited fashion,’ as envisaged in the bill?

Another congressional official familiar with the provision said it had been more narrowly drawn this year — in response to concerns raised by critics of last year`s proposal, and to negotiations with other committees of jurisdiction.

But Sparapani contended that in the wake of the revelations about the National Security Agency program of warrantless counter-terrorist surveillance, the time for giving the administration the benefit of the doubt on such issues was past.

‘The Senate committee cannot rewrite history to pretend we didn`t learn what we learned’ when word of the NSA program leaked last year, he said.