Statements On Introduced Bills And Joint Resolutions

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS -- (Senate - May 17, 2006)

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Mr. AKAKA. Mr. President, I rise today to introduce the Privacy Officer With Enhanced Rights Act of 2006, POWER Act. I am pleased to be joined by Senator Lieberman, the Ranking Member of the Homeland Security and Governmental Affairs Committee, in introducing this important legislation, which is a companion bill to H.R. 3041. The POWER Act will strengthen the authority of the Department of Homeland Security, DHS, Chief Privacy Officer, CPO, and will provide a much needed check on government power.

Americans have an expectation that their personal privacy will not be invaded and that their government will not misuse its powers. Democracy is founded on the principle that the people are the ultimate source of the Government's powers. Recent events validate the suspicions of our Nation's Founders against concentrating power into the hands of the few or in granting authority to those who are not accountable for how power is utilized. We need to consider the effects of intelligence and information gathering now that new government powers threaten to erode our most cherished freedoms and technological advances appear to outpace our ability to protect personal information.

In response to the terrorist attacks of 9/11, new law enforcement strategies were created and information sharing between government agencies increased substantially. DHS was established to face new challenges and address new threats. However, we were concerned that the unprecedented size and reach of the new department could intrude on the values that our nation cherishes most dearly. We wanted DHS to accomplish its vital mission, but we had to make sure that it was not at the cost of our liberty.

Times of crisis and unexpected trials do not excuse curtailment of our citizens' fundamental liberties, which is why the DHS CPO was created. The mission of the CPO is to ensure that the loss of the freedoms that define this country would not be sacrificed for increased vigilance against our adversaries. Although I voted against the Homeland Security Act, I was pleased to work with my colleagues to establish the CPO.

The DHS CPO has three primary responsibilities: (1) assuring that new technologies and information gathering methods do not erode personal privacy; (2) evaluating the privacy impact of new government programs; and (3) investigating privacy complaints.

However, the CPO's powers have proved to be inadequate. The major problem is that the CPO lacks subpoena power and, therefore, cannot fully investigate privacy violations. Instead, the CPO must rely on voluntary submissions of information in order to conduct investigations which significantly weakens the office. We all remember the news accounts about how the CPO's requests for documents in her investigation of the Transportation Security Administration's, TSA, transfer of passenger data from a major commercial air carrier to the Defense Department were rebuffed repeatedly. Our bill will go a long way to ensure that such situations will not happen again.

We are also concerned by the fact that the CPO cannot communicate directly with Congress, but instead, must report through DHS senior leadership. Similar to the Inspector General, the CPO can often be put at odds with those subject to investigation, so the authority to report directly to Congress and deliver unaltered findings is critical.

The POWER Act will address these shortcomings by providing the CPO with the power to: access all records deemed necessary to do the job; undertake any privacy investigation that is appropriate for the office; subpoena documents from the private sector when necessary to fulfill the CPO's statutory mandate; and obtain sworn testimony.

To provide independence for this position, the CPO will submit reports directly to Congress regarding the performance of his or her duties, without any prior comment or amendment by the DHS Secretary. In addition, our bill would protect the CPO from retaliation by mandating that the CPO cannot be removed from office without notifying the President and Congress of the reasons for removal.

With concerns over the development of new data mining activities at the Department and the potential use of commercial data by TSA, it is essential now more than ever that the DHS CPO have the tools and authority to protect the personal information of all Americans. I urge my colleagues to support this bill and ask unanimous consent that the text of the bill and a letter of support from the American Civil Liberties Union be printed in the RECORD.

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