Civil Libertarians Protest Privacy Policy

By Ellen Nakashima
Washington Post Staff Writer
Wednesday, December 6, 2006

The Bush administration's new privacy guidelines fail to protect the rights of Americans, and the board created to guarantee those rights lacks the independence to do the job, civil libertarians told the White House privacy board yesterday at its first public forum.

The guidelines, released Monday, are intended to protect the personal privacy and civil liberties of U.S. citizens as the government attempts to strengthen its intelligence-sharing to fight terrorism.

But, said privacy advocate Marc Rotenberg, the guidelines pale in comparison to protections offered under the Privacy Act of 1974.

"What struck me about the guidelines when compared with the federal privacy act was the absence of transparency, the absence of oversight and the inability for individuals to know what information about them is being collected by the federal government," said Rotenberg, executive director of the Electronic Privacy Information Center. Rotenberg was one of 10 panelists yesterday at a forum held by the White House Privacy and Civil Liberties Oversight Board, a panel created by Congress in 2004.

The new guidelines, issued by the Office of the Director of National Intelligence, direct agencies to develop procedures to ensure that information on "U.S. persons" is lawfully obtained, is shared only if it relates to terrorism or law enforcement, and that data errors are corrected. They do not require the people affected to be notified.

James Dempsey, a member of a Markle Foundation task force on privacy, said the guidelines lack substance and specificity. They do not address data-collection standards or set up appropriate redress mechanisms for people erroneously targeted in counterterrorism programs, he said.

Democrats, about to take control of Congress, have promised stronger oversight over the Bush administration's terrorism surveillance program and its push for stronger data-mining programs to identify terrorists.

The five-member privacy board, which started work in March, lacks subpoena power and has only four full-time staff members. President Bush appointed all five members, four of whom are Republicans, including Theodore B. Olson, the administration's former solicitor general.

"What we have established here is an oversight mechanism within the executive branch of government," Rotenberg said at the forum at Georgetown University. "To be effective, the agency has to be independent because even well-intended people seeking to protect privacy will necessarily be under institutional pressure to move in the direction the . . . institution wishes it to go."

Caroline Frederickson, legislative director of the American Civil Liberties Union, said the board lacked any power to change policies on crucial issues such as citizen redress on terrorist and criminal watch lists.

"It's all bark and no bite," she said.

Frederickson called on Congress to give the board subpoena power and remove it from the executive branch. She also urged the board to be more aggressive in reviewing the government's surveillance program, which she said violates the Constitution.

Alexander W. Joel, the civil liberties and protection officer for the Office of the Director of National Intelligence, said the 1974 Privacy Act is "an important foundation" and will continue to be.

"We have to be both safe and free," Joel said. "How do we do both? Sometimes by not doing as much on one side. Sometimes it's by adding work on the privacy and civil liberties side."

Board members, including Chairman Carole E. Dinkins, noted that the panel has visited the major agencies combating terrorism and met with senior officials, including the directors of national intelligence, the FBI and the National Security Agency. They received good cooperation and their questions were answered, board members said.

"We want to do this job conscientiously, and we're going to continue," Olson said.

Lanny J. Davis, the board's only Democrat, said he was puzzled about why Congress had placed what was supposed to be an independent oversight board under the president.

"That's an open question that none of us up here have been able to quite figure out," he said.

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