Domestic Surveillance: Privacy Challenges in the Post-9/11 Era

Remarks Of Sen. Patrick Leahy
Domestic Surveillance: Privacy Challenges In The Post-9/11 Era
16th Annual Conference On Computers, Freedom & Privacy:
Life, Liberty And Digital Rights
L' Enfant Plaza Hotel
Washington, D.C.
Wednesday, May 3, 2006

I welcome this opportunity to talk about the state of privacy in an age of new technology and growing challenges. I thank your conference chair, Frank Torres, for his leadership and thank all the privacy experts, computer professionals, and representatives from government and business, who have gathered here today to talk about these timely issues.

Convergence

I would like to touch on what I see as the convergence of three trends: The first trend is our post-9/11 interest in security, sometimes at the expense of other interests, such as privacy and long-held civil liberties.

Second is the digital data and micro-monitoring revolution - new technological capabilities that threaten to swamp our ability to draw appropriate privacy boundaries.

And the third trend in this convergence is the rapid post-9/11 rise of partnerships between government and private data collectors, and the outsourcing of data banking and data mining functions that used to be handled by government agencies.

This outsourcing already is blurring the few lines of privacy protection that once protected the public. The insightful privacy writer Bob O'Harrow of The Washington Post has described these new private data agencies as "mini-CIAs."

If these trends continue, then before too long we will tend to think of privacy as a quaint 20th Century American value that no longer applies to our everyday lives.

That would be a different American society than we have known, and that is worth defending.

People Want To BE Safer

In our post-9/11 world, security is the touchstone for an ever-widening array of federal policies and programs, while the technology that facilitates this shift has begun to advance at breakneck speed.

As we struggle to protect ourselves from threats like terrorism, technology often has been our crucial, but silent, partner in helping us to ramp up our law enforcement and national security capabilities. We in this city are profoundly aware of the new risks we face. But we also need to get it right.

The public does not want false assurances, nor do they want to be unduly alarmed.

What the American people want is to actually be safer. And we still have a way to go in accomplishing that.

Security And Liberty

In our constitutional system there is always tension between liberty and security, and especially so after September 11th. One of the difficult challenges we face is to strike the right midpoint. Our constitutional checks and balances are intended to help us do that.

The technologies available to us today offer tools that are better, faster and smarter, on scales of magnitude that are unprecedented. As an advocate and an enthusiast of emerging technologies, I watch these breakthroughs with great interest.

Technology has always played a significant role in shaping our laws on information privacy.

In the face of technology that makes it easier to delve more deeply into our private lives, Congress has increasingly been called upon to confront the question of the proper scope of privacy.

I have promoted the use of new technologies by law enforcement agencies, while also protecting our privacy and constitutional freedoms.

That was the balance I sought to strike in my work on CALEA, the USA PATRIOT Act and in other legislation that blends law enforcement's needs, the needs of our vital technology sector, and the privacy interests of the American people. Right now I am working with others to enact federal legislation to ensure the privacy and security of our personal data, which is more and more collected, stored and disseminated by our government and commercial data brokers.

The Micro-Monitoring Revolution

The marriage of information-gathering technology with information-storing technology, manipulated in increasingly sophisticated databases, is beginning to produce the defining privacy challenge of the information age. Modern databases, networks and the Internet allow us to easily collect, store, distribute and combine video, audio and other digital trails of our daily transactions.

We are on the verge of a revolution in micro-monitoring - the capability for the highly detailed, largely automatic, widespread surveillance of our daily lives.

Government Surveillance In The Post-9/11 Era

And one of the most dramatic and dazzling new challenges we all will be facing during the micro-monitoring revolution is the government's growing use of information-gathering technology to conduct surveillance on the activities of American citizens.

After the attacks of 9/11, the Bush Administration declared the continental United States a theater of military operations for the first time since the Civil War. U.S. military and law enforcement agencies have since used cutting-edge technology to implement new surveillance programs to improve national security.

These programs - which include sophisticated eavesdropping capabilities, Radio Frequency Identification - or "RFID" - technology, and the mining of large databases of information from sources such as local police, military personnel and the Internet - greatly enhance the government's ability to combat terrorism. However, these technologies also bring to the forefront serious public policy questions about the proper scope of privacy in the information age.

On December 17, 2005 - one day after the existence of the program was reported by The New York Times - the President admitted that the Bush-Cheney Administration has engaged in secret wiretapping of ordinary Americans without warrants for more than four years.

The Administration maintains that the congressional resolution authorizing the use of military force against al Qaeda - a resolution that says nothing at all about wiretapping - also authorized this secret, warrantless wiretapping of Americans inside the United States.

During the Senate Judiciary Committee's hearings on the NSA spying program, I pointed out that the Administration's legal justification for this program simply cannot be squared with the FISA law and the Constitution. If, as they claim, the Bush Administration can ignore FISA's express prohibition of warrantless wiretapping, can the government also eavesdrop on purely domestic phone calls?

Can it search or electronically bug an American's home or office, or comb through Americans' medical records and open first-class mail? These are all burning questions to which Congress and the American people deserve answers.

In March, the LA Times and Seattle Post-Intelligencer reported that federal government antiterrorism agencies conducted surveillance on longtime Quaker peace activist Glen Milner during the 2003 Seafair festival.

Defense Secretary Donald Rumsfeld told the Senate last month that the Department of Homeland Security was the source of information in Pentagon databases about at least three antiwar protests at military recruiting centers - two in my own state of Vermont and one here in Washington.

Just last week, the Wall Street Journal reported that the Pentagon has conducted several post-9/11 surveillance programs within U.S. borders to track the activities of more than 20 antiwar groups around the country.

We need only look to history in order to determine the chilling effects of surveillance on the right to protest and to express dissent in our nation. Throughout the civil rights movement, the FBI monitored Dr. Martin Luther King Jr. and other civil rights leaders, engaging in a pattern of illegal harassment and surveillance.

The Senate's 1975 investigation led by Senator Frank Church found that during the Vietnam War era, our government collected information on more than 100,000 Americans, infiltrated church youth groups and posed as reporters to interview peace activists. No doubt in a post-9/11 world, we should have and use information-gathering technology to protect national security. But, our government has no business spying on law-abiding American citizens.

Call For A Privacy Dialogue

These examples of how the 9/11 terror attacks have sparked a broad effort by the government to gather intelligence within U.S. borders demonstrate that we must have a meaningful public dialogue about privacy in the post-9/11 era.

We need clear communication about the goals, plans and uses of information-gathering technology, so that we can think in advance about the best ways to encourage innovation, while conserving the public's right to privacy. Congress's oversight role in this regard is indispensable.

Congress must hold hearings on these issues and draw privacy boundaries where appropriate, requiring those within our government who collect and work with private information to understand what is permitted and what is not.

I also believe it is time for the White House and for Congress to convene a summit meeting on these sensitive issues - a moment to take stock of what privacy rights were, are, and will be in American society.

This White House needs to re-calibrate. It has been devoted to secrecy - classifying information to conceal its mistakes and revealing classified information when helpful to its political purposes. The administration has also been too slow to embrace legitimate privacy concerns, or even to create a strong Privacy and Civil Liberties Oversight Board, as Congress required when it enacted the Intelligence Reform and Terrorism Prevention Act of 2004.

This is a dialogue that should cut across the political spectrum, and it should include constructive, bipartisan hearings. The earlier we begin this discussion, the greater the prospects for success in reaching consensus on a set of guiding principles. Privacy rights, once eroded, are difficult to restore.

I hope that a bipartisan discussion can now begin on the privacy challenges posed by surveillance technology in the post-9/11 era.

Thank you for your interest in this important issue, and thanks for this opportunity to share some ideas with you.

http://leahy.senate.gov/press/200605/050306.html