[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
PRIVACY AND CIVIL LIBERTIES IN THE HANDS OF THE GOVERNMENT POST-
SEPTEMBER 11, 2001: RECOMMENDATIONS OF THE 9/11 COMMISSION AND THE U.S.
DEPARTMENT OF DEFENSE TECHNOLOGY AND PRIVACY ADVISORY COMMITTEE
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
AND THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
AUGUST 20, 2004
__________
Serial No. 113
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
95-498 WASHINGTON : 2005
_________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800;
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Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
CHRIS CANNON, Utah Chairman
HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina
JEFF FLAKE, Arizona JERROLD NADLER, New York
JOHN R. CARTER, Texas TAMMY BALDWIN, Wisconsin
MARSHA BLACKBURN, Tennessee WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio ANTHONY D. WEINER, New York
TOM FEENEY, Florida
Raymond V. Smietanka, Chief Counsel
Susan A. Jensen, Counsel
Diane K. Taylor, Counsel
James Daley, Full Committee Counsel
Stephanie Moore, Minority Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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AUGUST 20, 2004
OPENING STATEMENT
Page
The Honorable Chris Cannon, a Representative in Congress From the
State of Utah, and Chairman, Subcommittee on Commercial and
Administrative Law............................................. 1
The Honorable Melvin L. Watt, a Representative in Congress From
the State of North Carolina, and Ranking Member, Subcommittee
on Commercial and Administrative Law........................... 3
The Honorable Steve Chabot, a Representative in Congress From the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 5
The Honorable Jerrold Nadler, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 6
WITNESSES
The Honorable Lee H. Hamilton, Vice Chair, National Commission on
Terrorist Attacks Upon the United States
Oral Testimony................................................. 11
Prepared Statement............................................. 14
The Honorable Slade Gorton, Commission Member, National
Commission on Terrorist Attacks Upon the United States
Oral Testimony................................................. 12
Prepared Statement............................................. 14
The Honorable John O. Marsh, Jr., on behalf of the U.S.
Department of Defense Technology and Privacy Advisory Committee
Oral Testimony................................................. 15
Prepared Statement............................................. 18
Ms. Nuala O'Connor Kelly, Chief Privacy Officer, U.S. Department
of Homeland Security
Oral Testimony................................................. 49
Prepared Statement............................................. 51
APPENDIX
Prepared Statement by the Honorable Chris Cannon, a
Representative in Congress From the State of Utah and Chairman,
Subcommittee on Commercial and Administrative Law, Commmittee
on the Judiciary............................................... 79
Prepared Statement by the Honorable Steve Chabot, a
Representative in Congress From the State of Ohio, and
Chairman, Subcommittee on the Constitution..................... 80
Prepared Statement by the Honorable Jerrold Nadler, a
Representative in Congress From the State of New York, and
Ranking Member, Subcommittee on the Constitution............... 81
PRIVACY AND CIVIL LIBERTIES IN THE HANDS OF THE GOVERNMENT POST-
SEPTEMBER 11, 2001: RECOMMENDATIONS OF THE 9/11 COMMISSION AND THE U.S.
DEPARTMENT OF DEFENSE TECHNOLOGY AND PRIVACY ADVISORY COMMITTEE
----------
FRIDAY, AUGUST 20, 2004
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10:06 a.m., in
Room 2141, Rayburn House Office Building, Hon. Chris Cannon
[Chairman of the Subcommittee on Commercial and Administrative
Law] presiding.
Mr. Cannon. The Subcommittee will come to order. I want to
thank you all for joining us, especially our panel.
Today, before we formally start our proceedings, Chairman
Chabot and I wanted to sincerely thank and recognize our
colleagues on both Subcommittees and on both sides of the aisle
for taking time out of their really busy schedules--for me, it
was difficult, but I know that it was for everyone else--so as
to attend the hearing this morning.
As many of you know, August is typically when Members of
Congress return to their districts to catch up on constituent
matters and spend time with their families. Wait a minute, do
you guys have families? It is a time when we call it our home
district work period. We want to thank everyone for coming out.
In these extraordinary times, we have to undertake
extraordinary measures to deal with certain pressing issues. It
also goes without saying that we express our sincere gratitude
to our esteemed witnesses, each of whom reflects the greatest
hallmarks of public service. We appreciate your contributions
to our deliberations today.
The title of today's hearing, ``Oversight Hearing on
Privacy and Civil Liberties in the Hands of the Government
Post-September 11, 2001: Recommendations of the 9/11 Commission
and the U.S. Department of Defense Technology and Privacy
Advisory Committee'', which we will refer to as ``TAPAC'',
clearly explains why we are here.
As many of you know, the 9/11 Commission filed its final
report last month. What some of you may not know, however, is
that the report includes several recommendations intended to
protect our citizens' privacy and civil liberties. In addition,
it recommends that the Federal Government set standards for the
issuance of birth certificates and sources of identification
such as driver's licenses to promote secure identification
information.
While most media headlines have emphasized the Commission's
antiterrorism proposals, I believe the privacy and civil
liberties recommendations are among those most critical to our
Nation's future and which will form part of the focus of our
hearing.
Today's proceedings will also focus on certain
recommendations the TAPAC Committee made regarding safeguarding
informational privacy. By way of background, TAPAC was
established by Secretary Rumsfeld as an independent, bipartisan
committee to examine the privacy ramifications presented by
data mining activities by the Defense Department. I think we
all agree that Secretary Rumsfeld is to be commended for taking
this initiative and for ensuring that TAPAC's membership
included some of our Nation's most respected experts in the
fields of constitutional and privacy law. I am informed that
among the many luminaries who testified before TAPAC was our
colleague from New York, Mr. Nadler. Thank you.
Advances in technology have increasingly facilitated the
collection and dissemination of personally identifiable
information, but have also correspondingly increased the
potential for misuse of such information. As the recently
renamed Government Accountability Office observed, these
advances bring substantial Federal information benefits, as
well as increasing responsibilities and concerns.
Interestingly, TAPAC over the course of its deliberations
determined that as the Defense Department was not alone in its
conduct of data mining activities, it was necessary for it to
address this issue through a series of Government-wide
recommendations. The purpose of today's hearing is to examine
the validity of these recommendations and those of the 9/11
Commission that relate to privacy and civil liberties and to
determine whether they warrant a legislative response.
We would especially appreciate any guidance from our
witnesses about how the Congress, in crafting such legislation,
can best protect our citizens' privacy without compromising
legitimate law enforcement and terrorism detection efforts.
As our witnesses know, it has been 30 years since the
Privacy Commission was established as part of the Privacy Act
of 1974. I would be interested in having our witnesses comment
on whether now is the time to reestablish a privacy commission
that would specifically focus on Government privacy issues,
especially given all the technological developments that have
occurred since the Commission filed its final report in 1977
and the current state of our Nation's security concerns.
I should also note that both my Subcommittee, the
Subcommittee on Commercial and Administrative Law, and Chairman
Chabot's Subcommittee, the Constitution Subcommittee, have
played a major role with respect to protecting personal privacy
and civil liberties in this era of heightened security under
the leadership and guidance of Mr. Sensenbrenner, the Chairman
of the full Judiciary Committee.
As both the 9/11 Commission Report and the TAPAC concluded,
it is no easy task to balance the competing goals of keeping
our Nation secure and protecting the privacy rights of our
Nation's citizens. I believe that our respective Subcommittees
of the Judiciary Committee are uniquely and best suited to
study and resolve these issues.
Our accomplishments, to date, include the establishment of
the first statutorily-created privacy office in a Federal
agency, namely the Department of Homeland Security. We have
also spearheaded the creation of a similar office in the
Justice Department, which is contained in the legislation now
pending in the Senate. In addition, both my Subcommittee and
the Constitution Subcommittee have considered and supported
legislation requiring a Federal agency to prepare a privacy
impact analysis for proposed and final rules, and to include
this analysis in the notice of public comment issued in
conjunction with the publication of such rules.
I will conclude my opening remarks with a quote from one of
our Founding Fathers. As I think you will agree, Mr. Hamilton's
observations and warnings--and here we are dealing with the
earlier Mr. Hamilton--are as meaningful today as they were when
he wrote them more than 200 years ago. ``Safety from external
danger is the most powerful director of national conduct. Even
the ardent love of liberty will, after a time, give way to its
dictates. The violent destruction of life and property incident
to war, the continual effort and alarm attendant on a state of
continual danger, will compel nations the most attached to
liberty to resort for repose and security to institutions which
have a tendency to destroy their civil and political rights. To
be more safe, they at length become willing to run the risk of
being less free.''
I will now turn to my colleague, Mr. Watt, the
distinguished Ranking Member of my Subcommittee and ask him if
he has any opening remarks.
[The prepared statement of Mr. Cannon follows in the
Appendix]
Mr. Watt. Thank you, Mr. Chairman. I thank the Chairman of
this Committee and the Chairman of the Constitution
Subcommittee for deciding to have a hearing on the issues
involved today and to do it jointly so that we do not end up
duplicating efforts and pulling in different directions
possibly.
I would like to start really by expressing thanks to the
witnesses for being here today. And by expressing a special
thanks to Lee Hamilton and Slade Gordon, the members of the
Commission, for the outstanding job that they did under some
very, very, very difficult circumstances; and getting through
the process without any appearance of partisanship, and being
single-focused on the issue at hand, which was protecting
American citizens and others from terrorism.
Who knows where the recommendations of the Commission will
go? And it is hard to even contemplate where they may go
legislatively or administratively. But the thing that I think
is most important is that before they go anywhere, we
understand exactly what the recommendations are and have a
better understanding of all of the implications of the
recommendations.
I sense that several Committees have headed off in the
direction of dealing only with the security side of the balance
that must be struck. And I think it is our obligation in this
Committee not only to look at the security side, but to be ever
cognizant of the privacy implications and the personal liberty
implications of what is being done. And the only way we can do
that is to really have hearings about what is being proposed
and what we should be implementing.
I am extremely encouraged that the Commission recognize
this delicate balance itself in its recommendations, making
three specific recommendations pertaining to the protection of
civil liberties. First, the report calls for the President to
``safeguard the privacy of individuals about whom information
is shared among intelligence and investigation agencies.''
Second, the report requires that in order to retain a
particular governmental power, the executive first demonstrate
that the ``power actually materially enhances security,'' and
that adequate oversight exist ``to ensure protection of civil
liberties.'' so it is very apparent that the Commission is
already wrestling with what the appropriate balance should be
between safeguarding our citizens by protecting them from
terrorism and, on the other hand, safeguarding our citizens by
protecting them against overstepping by governmental agencies
who say that they have our interests at heart.
So that is a very delicate balance which I think this
hearing can only enlighten the American public on and enlighten
the Members of this Committee on as we move forward, and
enlighten our colleagues in the broader House and Senate as we
move forward.
Finally, the report recommends the creation of a board
within the executive branch to oversee adherence to the
guidelines, and it recommends the commitment the Government
makes to defend civil liberties. So that board is again
supposed to walk that delicate balance between adhering to the
guidelines and recommending a commitment to defend civil
liberties. And I think that is absolutely critical as we move
forward.
So I am delighted that the Chairman has convened this
hearing for the purpose of discussing, and I hope nobody takes
this as any indication that we in this Committee are not as
committed to the defense of our citizens from terrorism, rather
that they take it as an equal commitment that we understand the
historical imperative, the constitutional imperative of also
safeguarding the security and individual rights and privacy of
citizens as we authorize the Government to take the actions
that are necessary to safeguard us against terrorism.
That is going to be a very, very delicate balance to walk.
And if we are going to do it, this is the place to start, right
here in the Committee on the Judiciary, in the Constitution
Subcommittee, in the Commerce and Administrative Law
Subcommittee where it is our responsibility to look at these
issues and make some very difficult choices.
I thank the Chairman and the members of the Commission and
our other witnesses for being here to enlighten us on where
that delicate balance should be.
Thank you, Mr. Chairman.
Mr. Cannon. Thank you, Mr. Watt.
Mr. Cannon. Mr. Watt and I have, on occasion, disagreed
very sharply, and by ``sharply,'' meaning he has a very sharp
mind and it is hard to disagree with him.
On the other hand, there are many issues where we do not
disagree at all and this is one of those areas where we have
difficult issues and we may differ on some points, but we will
come up with, I hope, some thoughtful resolutions. So I want to
thank the minority Ranking Member.
I would also like to thank Mr. Chabot for being here today
and his Ranking Member, Mr. Nadler.
Mr. Chabot, would you like to make a statement?
Mr. Chabot. Thank you, Mr. Chairman. I first of all want to
thank you for holding this hearing, as well as Mr. Watt, Mr.
Nadler, the Ranking Member on the Subcommittee that I have the
good fortune to chair; and I want to thank all of my Committee
Members who are in attendance today. And I want to offer a
special welcome to all of the witnesses, but especially the
Honorable Congressman Hamilton whose district in Indiana
abutted mine in the southwest corner of Ohio, in the time that
I have been in Congress, for a number of years.
Lee was also the Chairman of the Committee on International
Relations and served for many years with distinction. When my
party took over in 1994, he was the Ranking Member for the time
that I served here, but nonetheless he served with great
distinction. He was really a role model for many of us,
especially in the area of international affairs. So I want to
thank him for his leadership in that respect.
Also, Senator Gorton, who served the people of Washington
for so many years so well. I want to thank all of the witnesses
for being here today.
I want to thank especially Senator Gorton and Senator
Hamilton for the last 20 months that they have served on the 9/
11 Commission. Our Nation owes you a great debt of gratitude
for your work, and I am confident that we will all benefit from
your expertise here this morning and in the future as we
implement all or most of the recommendations that you have
made.
As we know far too well, September 11 changed our world. It
changed the way in which we must deal with terrorism and the
way in which we as a country must protect ourselves. Since that
tragic day, Congress and the Administration have taken steps to
help better protect our Nation at home and abroad. Through
passage of the PATRIOT Act and the creation of the Department
of Homeland Security, we have provided law enforcement with
enhanced investigative tools and improved our ability to
coordinate abilities designed to protect against the future
threat of terrorism. And make no mistake, that threat continues
to face our Nation.
Through the heroic actions of the brave men and women
serving in our Armed Forces, we have also pursued the
terrorists and those who assist them in places like Afghanistan
and Iraq. Yet these actions are not enough to guarantee our
Nation's security or freedom. This can only be accomplished
through continued vigilance and willingness to challenge
conventional wisdom. We must continue to improve our
intelligence capability, strengthen our defenses and always be
a step ahead of our enemies.
To help accomplish these critical goals, it is imperative
that Congress provide a comprehensive and expeditious review of
the 9/11 Commission recommendations and then move forward with
initiatives that will further improve our ability to combat
terrorism and defend our citizens.
As the Commission notes, we must also be mindful of the
protections afforded by our Constitution and our need to guard
those protections as we work to better protect our country.
Ignoring important civil liberties will not only erode our
freedoms, but will undermine efforts to increase our security.
These challenges are not new, and our two Subcommittees have
been extensively involved in these issues over the last couple
of years.
In the PATRIOT Act, for example, we worked to include
protective measures such as a sunset provision to strengthen
congressional oversight. When authorizing the Department of
Homeland Security, a privacy officer position was established
to examine the implications of the agency's rules and
regulations on privacy and to address any issues that may
result.
I look forward, as I know the other Members do, to
discussing the Commission's recommendations with our witnesses
today in determining what Congress can do to better protect the
privacy of our citizens. I particularly look forward to hearing
from our panel their views on the Federal Agency Privacy
Protection Act of 2004, which passed the House during the 107th
Congress and was recently voted out of the full Judiciary
Committee. It was back on, I believe, July 7.
I believe that this, which was formerly known as the
Defense of Privacy Act, would require Federal agencies to
publish privacy impact analyses when promulgating rules and
regulations. I believe it would be an effective step forward in
our efforts to protect our country and our privacy rights.
As we move forward, it is important to remember that having
effective antiterrorism measures does not necessarily
compromise the protections afforded by our Constitution, as one
is not the enemy of the other. The enemy is terrorism.
I yield back my time and thank the Chairman once again for
holding this hearing.
Mr. Cannon. Thank you, Mr. Chairman. I thank you for that
opening statement.
[The prepared statement of Mr. Chabot follows in the
Appendix]
Mr. Cannon. Mr. Nadler, would you like to make an opening
statement?
Mr. Nadler. Thank you, Mr. Chairman. Mr. Chairman, given
the importance of this matter and the fact that nearly 3 years
have elapsed since the attacks of September 11, I am pleased
that we have returned to consider the recommendations of the 9/
11 Commission now without waiting, as some have suggested,
until next year.
I want to welcome our former colleagues Representative
Hamilton and Senator Gorton and to thank them for the important
work they and their colleagues have done.
I am also pleased that we have Secretary Marsh here today.
The issues that gave rise to the Secretary's Technology and
Privacy Advisory Committee are also implicated in the
Committee's recommendation, so it is important that we have the
benefit of our work.
Finally, I want to welcome back Ms. O'Connor Kelly. The 9/
11 Commission has recommended in somewhat general terms that we
set up a civil liberties oversight board. The TAPAC commission
has similarly recommended that the Secretary of Defense create
a policy level privacy officer. Congress will have to work out
the details.
I hope that your experience as the privacy officer of the
Department of Homeland Security can shed some light on how we
might ensure the independence and effectiveness of the offices
created pursuant to these recommendations.
The need to improve capabilities and coordination within
the intelligence and law enforcement communities was all too
well demonstrated on September 11. Thousands of innocent
citizens who did nothing more than board an aircraft or go to
work were barbarically slaughtered. We ignored our Nation's
peril, the lesson we can draw from the intelligence failures
leading up to those crimes and from other recent intelligence
fiascoes.
At the same time, increased Government powers carry with
them increased threats to the rights of all citizens. We expect
our Government to keep it safe, but we are also a nation with a
healthy mistrust of unfettered governmental power.
Our whole system of Government combines limited powers with
checks and balances that must maintained. Rights sacrificed at
a time of emergency are often lost forever. Actions taken in
the heat of the moment are often a source of shame and regret
to later generations. So our job is to strike an appropriate
and workable balance.
That is not easy. As the members of the Commission have
noted in their report, ``While protecting our homeland,
Americans should be mindful of threats to vital personal and
civil liberties. This balancing is no easy task, but we must
constantly strive to keep it right. This shift of power and
authority to the Government calls for an enhanced systems of
checks and balances to protect the precious liberties that are
vital to our way of life.''
A little further on the Commission notes, it talks in
general terms about the provision of the PATRIOT Act and some
of the beneficial provisions of the PATRIOT Act, and then it
says, ``Because of concerns regarding the shifting balance of
power to the Government, we think that a full and informed
debate on the PATRIOT Act would be healthy.'' The Commission
then makes three general recommendations for specific measures
to balance civil liberties and national security.
Mr. Justice Marshall in a noted decision of the Supreme
Court 200 years ago in Marbury v. Madison, a decision that has
been somewhat criticized by one Member of this Committee,
noted, and I am paraphrasing here because I do not have the
exact quote before me, ``It is emphatically the province of the
judiciary to say what the law is.''
And that is true. It is emphatically the province of the
Judiciary Committee to begin the process of having Congress
strike the proper balance between national security, homeland
security, and protection of our civil liberties. That is our
job.
I appreciate the beginning guidance that the Commission has
given us and recommended that we strike that balance, but we
have to determine how to strike that balance. And I am glad and
I appreciate the Chairman calling this hearing as a beginning
of that process so we can carefully consider all of the things
we have to consider to strike that balance, and with all
deliberate speed, enact legislation to do that.
So I am glad we are having this hearing and I thank you.
Thank you, Mr. Chairman.
Mr. Cannon. I thank the gentleman.
[The prepared statement of Mr. Nadler follows in the
Appendix]
Mr. Cannon. I would like to just point out to my co-Chair
of this hearing, Mr. Chabot, Ranking Member Watt, and Ranking
Member Nadler, we have worked together on issues not unlike
this for some period of time, including the PATRIOT Act and
other issues. And there is a genuine, I believe, feeling for
doing the right thing here, and I hope that that will result in
legislation in an area that is very, very difficult and improve
that legislation.
Without objection, the gentlemen's entire statements will
be placed in the record. Also, without objection, all Members
may place their statements in the record at this point. Any
objection?
Hearing none, so ordered.
Without objection, the Chair will be authorized to declare
recesses of the hearing at any point. Hearing none, so ordered.
I ask unanimous consent that Members have 5 legislative
days to submit written statements for inclusion in today's
hearing record. Without objection, so ordered.
Mr. Cannon. Now I am pleased to introduce our witnesses for
today's hearing. Our first witness is Lee Hamilton, who is Vice
Chair of the 9/11 Commission. Former Congressman Hamilton
currently is President and Director of the Woodrow Wilson
International Center For Scholars. Before undertaking these
responsibilities at the Center in 1999, Congressman Hamilton
served for 34 years in the House, representing Indiana's Ninth
District. During his tenure, he served as Chairman and Ranking
Member of the forerunner of the House Committee on
International Relations and served on the Permanent Select
Committee on Intelligence and the Select Committee To
Investigate Covert Arms Transactions with Iran.
After his tenure in Congress, he served on the Commission
on National Security in the 21st Century, also known as the
Hart-Rudman Commission, and was co-Chair with former Senator
Howard Baker of the Baker-Hamilton Commission to investigate
certain security issues at Los Alamos. He is currently a member
of the President's Homeland Security Advisory Council.
Mr. Hamilton is a graduate of DePauw University and Indiana
University Law School, as well as the recipient of numerous
honorary degrees and national awards for public service. And I
hope I have said privately to Mr. Hamilton what I would like to
say now and that is that when I came to Congress I looked
around at the various Members of Congress to decide who I
wanted to model, he was very clearly one of the people who I
think did a remarkably good job in a complex institution; and
he has been an explicit model in my life in my office.
I welcome you back, Mr. Hamilton.
Our second witness is former Senator Slade Gorton who also
appears on behalf of the 9/11 Commission. Senator Gorton is
currently of counsel at Preston, Gates & Ellis. Prior to
joining the firm, he represented Washington State in the United
States Senate for 18 years, from 1982 to 2000. While in the
Senate, Mr. Gorton served on the Appropriations, Budget,
Commerce, Science and Transportation, and Energy and Natural
Resources Committees. He also chaired the Interior
Appropriations Subcommittee, and was a member of the Republican
Leadership as Counsel to the Majority Leader.
Senator Gorton began his political career in 1958 as a
Washington State representative and then went on to serve as
the State house majority leader. In 1968, he was elected
Attorney General for the State of Washington where he argued 14
cases before the United States Supreme Court. Mr. Gorton also
served on the President's Consumer Advisory Council, as well as
on many other Federal and State commissions. Most recently,
Senator Gorton served on the National Commission on Federal
Election Reform.
Senator Gorton received his undergraduate degree from
Dartmouth College and his law degree from Columbia University.
We welcome you back and appreciate your service in the
Senate where we had some very pleasant interactions over a
period of time.
Our third witness is John Marsh, who appears today on
behalf of TAPAC. Secretary Marsh, like his fellow witnesses,
has served our Nation in a number of distinguished ways, I
might just say a very different and a remarkable history of
service, most prominently as Secretary of the Army and as the
representative of Virginia's Seventh Congressional District.
After an exemplary period of service with the U.S. Army,
Secretary Marsh received his law degree in 1951 from Washington
and Lee University and began his practice of law in Strasburg,
VA. Thereafter, he was elected to four terms of Congress from
the Seventh District of Virginia and served on the House
Appropriations Committee.
After choosing not to seek a fifth term, Secretary Marsh
resumed the practice of law. In 1973, however, he returned to
Federal service as Assistant Secretary of Defense for
Legislative Affairs. The following year, he became the
Assistant for National Security Affairs to Vice President Ford,
and in August 1974 became Counselor, with Cabinet rank, to
President Ford. He chaired the Presidential Committee for the
Reorganization of the U.S. Intelligence Community from 1975 to
1976.
Later sworn in as Secretary of the Army in 1981, Secretary
Marsh served until 1989 achieving a tenure that was the longest
of any Secretary of the Army or Secretary of War in American
history. During 1988, he served concurrently as Assistant
Secretary of Defense for Special Operations and Low Intensity
Conflict.
Secretary Marsh has been awarded numerous honors and
decorations. He is currently a Distinguished Professor of Law
at George Mason University concentrating on cyberterrorism and
national security law. He is also a member of the Special
Congressional Panel on Terrorism to assess Federal, State and
local response to weapons of mass destruction, known as the
Gilmore Commission.
Our final witness is Nuala O'Connor Kelly, the Chief
Privacy Officer at the Department of Homeland Security. We
welcome you back.
As many of you know, Ms. O'Connor Kelly testified earlier
this year as part of my Subcommittee's continuing oversight of
her office. Ms. O'Connor Kelly is especially commended for
participating in today's hearing as she is currently on
maternity leave and having difficulty getting enough sleep. So
we will send someone out for a coffee or a Coke if you need
that at some point.
As I previously noted in my remarks, my Subcommittee with
the support of our Chairman, Mr. Sensenbrenner, played a major
role in establishing Ms. O'Connor Kelly's office at the
Department of Homeland Security. The legislation creating her
office not only mandated the appointment of a privacy officer,
but specified the officer's responsibilities.
One of the principal responsibilities of the DHS privacy
officer, as set out by statute, is the duty to assure that the
use of technologies sustain and do not erode privacy
protections relating to the use, collection and disclosure of
personal information. In addition, the privacy officer must
assure that personal information is handled in full compliance
with the Privacy Act and assess privacy impacts with the
Department's proposed rules.
Pursuant to this legislation, DHS Secretary Tom Ridge last
year appointed Ms. O'Connor Kelly to serve as the Department's
Chief Privacy Officer. Since her appointment, Ms. O'Connor
Kelly has played a key role in various terrorist detection
initiatives undertaken by DHS. Prior to her current
appointment, she served as the Chief Privacy Officer at the
Commerce Department.
Before entering public service, Ms. O'Connor Kelly was the
Vice President for Data Protection and the Chief Privacy
Officer for DoubleClick, an online media services company that
made great headlines just prior to her taking that position.
In that capacity, Ms. O'Connor Kelly established the
company's first data protection department responsible for
instituting privacy protection policies and procedures for
DoubleClick, its clients and partners.
Ms. O'Connor Kelly received her undergraduate degree from
Princeton University, a Master's degree in Education from
Harvard University and a law degree from Georgetown University
Law Center.
I extend my warm regards and appreciate your willingness to
participate in today's hearing. In light of the fact that your
written statements will be included in the hearing record, I
request that you limit your oral remarks to 5 minutes.
Accordingly, please feel free to summarize or highlight the
salient points of your testimony.
You will note that we have a lighting system. I think you
are all familiar with it. It starts at green; when 4 minutes
have passed, it turns yellow, and then it turns red at 1
minute. We do not want to cut off your thinking. In fact, I
would like to say this is undoubtedly the most prestigious
panel I will ever--we have had two justices from the Supreme
Court recently testifying on the Administrative Conference of
the United States, Justices Scalia and Breyer. But there are
only two of them and their history is fairly narrow compared
with the experience we have with you.
So if you would just recognize the 5-minute light, we would
appreciate it if you would draw to a close. We will have people
that will have the opportunity to ask questions and expand on
issues.
Everyone was here at the beginning of the hearing, so we
will go by seniority. With Mr. Watts' help, I will try to tap
the gavel at 5 minutes so all Members have an opportunity to
ask questions. If there is an interest, we may go to a second
round of questions.
Pursuant to the directive of the Chairman of the Committee
on the Judiciary, I am going to ask the panel to stand and
raise your right hand and take an oath.
[Witnesses sworn.]
Mr. Cannon. Congressman Hamilton, would you proceed with
your testimony?
TESTIMONY OF THE HONORABLE LEE H. HAMILTON, VICE CHAIR,
NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES
Mr. Hamilton. Thank you very much Chairman Cannon, Ranking
Member Watt, Chairman Chabot, Ranking Member Nadler and the
other distinguished Members of the two Subcommittees. We are
very honored to appear before you today.
I want to say that the chairman of the 9/11 Commission, Tom
Kean, was not able to be here today. He led the Commission with
extraordinary skill and deserves much of the credit for the
Commission's success.
I am very pleased to be here with Senator Gorton. He made
extraordinary contributions as a Commission member. We turned
to him again and again for advice, and it is a pleasure to be
with him.
We especially appreciate the fact that all the Members are
here during August. I know that it is unprecedented, and we are
very grateful to you for your interest in our work.
I want to say that the statements made by the Chairman and
Ranking Members of the two Subcommittees were extraordinarily
good statements. I thank you for those. I also thank you for
the personal sentiments that you expressed.
Your Subcommittees, as well as your parent Committee, have
a very long record of concern and leadership in these issues,
so it is a very special pleasure for us to be with you. We
simply point out that our Commission's recommendations were
unanimous. I think you know that.
I think from the very beginning of the Commission's work,
about 18 or more months ago, all of us have been very conscious
of the need to make sure that in our zeal to fight terrorism,
we do not compromise the very rights and liberties that make
our system of Government and society worth defending.
Concern about the civil liberties of American citizens was
one of the number of reasons why the Commission rejected the
idea of moving the domestic intelligence and counterterrorism
responsibilities of the FBI out of that agency and placing them
in an MI-5 type agency. We feared that such a new agency, not
steeped in respect for law and the Constitution that pervades
the FBI and the Justice Department, and reporting to the
National Intelligence Director, the Director of Central
Intelligence rather than the Attorney General, would be more
likely to trample on individual rights.
The Commission made three major recommendations with
respect to civil rights. The first dealt with the critical and
complicated privacy issues that are at the heart of our new
information society and at the heart of the necessary efforts
to increase the amount of information gathered by our
intelligence agencies and shared by them among themselves and
with State and local law enforcement officials.
We recommend improvements and enhancements in those
information gathering abilities and in information sharing. But
we also recognize that with the enhanced flow of information
comes a need to establish guidelines and oversight to make sure
that the privacy of our citizens and residents is respected and
preserved.
We did not conduct extensive investigation of our own on
data mining and other privacy issues raised by information
gathering and sharing. We relied very much on the Markle Task
Force. I'm sure that work is familiar to you. We believe, along
with the Markle Task Force, that we have the ability to gather
and share information and protect privacy at the same time.
This requires, however, leadership and coordination in the
executive branch.
No one agency can deal with this problem alone. We
recommend that the President lead a Government-wide effort
through OMB and the National Intelligence Director to set
common standards for information use throughout the
Intelligence Community. These standards would govern the
acquisition, accessing, sharing and using of private data so as
to protect individual rights.
The same technology that facilitates the gathering and
sharing of information can also protect us from the misuse of
that information. And for the balance of the statement, I turn
to Senator Gorton.
TESTIMONY OF THE HONORABLE SLADE GORTON, COMMISSION MEMBER,
NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES
Mr. Gorton. Our second major recommendation in this area
relates to the USA PATRIOT Act, many of the provisions of which
expire at the end of next year and will be the subject of
hearings by the House and Senate Judiciary Committees. The only
specific provisions of that act on which we expressed a view
are those relating to information sharing.
The elimination of the wall that had severely constrained
the flow of information acquired through surveillance under the
Foreign Intelligence Surveillance Act from the intelligence
side of the FBI and to the criminal side of the Agency and to
Federal prosecutors, and the broadening of the ability of the
Justice Department to share grand jury information with other
intelligence and law enforcement agencies.
We endorse the extension of those provisions which,
witnesses were virtually unanimous in telling us, were
extremely helpful to law enforcement and intelligence
investigations with little, if any, adverse impact on the
rights of potential defendants. But we did propose a general
test to be applied to consideration of the renewal of the other
provisions of the USA PATRIOT Act, and we believe that that
principle should also be applied to other legislative and
regulatory proposals designed to strengthen our security, but
that may impinge on individual rights.
The test is a simple but important one. The burden of proof
should be on the proponents of the measure to establish that
the power or authority being sought would, in fact, materially
enhance national security, and that there will be adequate
supervision of the exercise of that power or authority to
ensure protection of civil liberties. If the power is granted,
there must be adequate guidelines and oversight properly to
confine its use.
We think that the same spirit that informed our
recommendation as to the burden of proof that should be applied
to measures of this kind is also reflected in H.R. 338,
recently reported out of this Subcommittee and the full
Judiciary Committee. H.R. 338 requires Federal agencies that
are proposing rules that will require the collection of
personal information from individuals to conduct privacy impact
assessments as part of their rule-making process to ensure that
privacy interests of individuals receive attention and
protection.
The Commission, of course, takes no position on that bill.
But we can observe that it proceeds from the same concerns that
animate our recommendations.
Our third recommendation flows from the first two.
Individual rights and liberties must be adequately protected in
the administration of the significant powers that Congress has
granted to executive branch agencies to protect national
security. There should be a central office or board that has
the responsibility to oversee adherence guidelines that are
built into these programs to safeguard these rights and
liberties.
We make no recommendation as to how this office or board
should be composed or where in the executive branch it should
be located. Some commissioners believe that it should be a
permanent office located in the Justice Department and
reporting to the Attorney General, but with oversight of the
programs of the Department of Homeland Security and other
agencies, as well as those of the Justice Department. Others
envisage a Cabinet-level interagency board or committee
reporting to the President. But we are all agreed that some
entity of this kind should be created.
And departing for just a moment from my written statement,
both the Chairman and Mr. Watt referred to the importance of
this vehicle. Yesterday, Mr. Lee Hamilton and I testified
before the Senate Judiciary Committee. Thereafter, I made a
contact I'd made previously with Senators McCain and Lieberman
who are working on a bill to provide exactly this board.
I went and spoke at length with the staff director of the
Senate Commerce Committee, formerly a member of my staff, on
such a draft. And it may well be that you would like to contact
them, see the direction in which they are going and work
together. It looked to me like a very constructive first draft.
We close with an observation from our report. We must find
ways of reconciling security with liberty since the success of
one protects the other. The choice between security and liberty
is a false choice as nothing is more likely to endanger
America's liberties than the success of a terrorist attack at
home. Our history has shown us that insecurity threatens
liberty. Yet, if our liberties are concerned, we lose the
values that we are struggling to defend.
We will be pleased to respond to your questions.
Mr. Cannon. Thank you, Mr. Hamilton and Mr. Gorton.
[The prepared statement of Messrs. Hamilton and Gorton
follows:]
Prepared Statement of Lee Hamilton and Slade Gorton
Chairman Cannon, Ranking Member Watt, and other distinguished
members of the Subcommittee: We are honored by the opportunity to
appear before you today. We appreciate the opportunity to discuss with
you the findings and recommendations of the Commission with respect to
privacy and civil liberties. These Subcommittees, as well as your
parent Committee, have a long record of concern with these issues, so
it is a special pleasure to discuss with you the important question of
how the measures we must take to protect our nation against the threat
of terrorist attacks can be reconciled with the individual rights and
liberties we hold so dear.
We want to emphasize that the Commission's views on these issues--
as well as all others dealt with in our Report--were unanimous. We are
five Republicans and five Democrats, but we are united in our
commitment to make our country safer and more secure in the face of the
novel threat posed by transnational terrorism. And we can report to you
that from the very beginning of the Commission's work some eighteen
months ago, all of us have been conscious of the need to make sure that
in our zeal to fight the scourge of terrorism we do not compromise the
very rights and liberties that make our system of government and our
society worth defending.
Concern about the civil liberties of American citizens was one of a
number of reasons why the Commission rejected the idea of moving the
domestic intelligence and counterterrorism responsibilities of the FBI
out of that agency and placing them in a new MI-5-type agency. We
feared that such a new agency, not steeped in the respect for the law
and the Constitution that pervades the FBI and the Justice Department,
and reporting to the National Intelligence Director or the Director of
Central Intelligence rather than to the Attorney General, would be more
likely to trample on individual rights.
The Commission made three major recommendations with respect to
civil liberties. The first dealt with the critical and complicated
privacy issues that are at the heart of our new ``information society''
and at the heart of the necessary efforts to increase the amount of
information gathered by our intelligence agencies and shared by them
among themselves and with state and local law enforcement officials.
The Commission recommends improvements and enhancements in those
information-gathering abilities and in information sharing. But we also
recognize that with the enhanced flow of information comes a need to
establish guidelines and oversight to make sure that the privacy of our
citizens and residents is respected and preserved.
We did not conduct extensive investigation of our own on data-
mining and other privacy issues raised by information gathering and
sharing. Instead, we relied on the excellent work done by the Markle
Foundation Task Force, reflected in two reports, in 2002 and 2003. The
insights of the Markle Task Force have been reinforced by the more
recent investigation and report by the Technology and Privacy Advisory
Committee established by Secretary Rumsfeld to advise him on the
privacy implications of the Department's Terrorism Information
Awareness Program--a report that this Subcommittee is also focusing on
today.
We believe, along with the Markle Task Force, that we have the
ability to gather and share information and protect privacy at the same
time. But this requires leadership and co-ordination in the executive
branch. No one agency can deal with this problem alone. Instead, we
recommend that the President lead a government-wide effort, through OMB
and the National Intelligence Director, to set common standards for
information use throughout the intelligence community. These standards
would govern the acquisition, accessing, sharing and using of private
data so as to protect individual rights. The same technology that
facilitates the gathering and sharing of information can also protect
us from the misuse of that information.
Our second major recommendation in this area relates to the USA
PATRIOT Act, many of the provisions of which expire at the end of next
year and will be the subject of hearings by the House and Senate
Judiciary Committees. The only specific provisions of that Act on which
we expressed a view are those relating to information-sharing: the
elimination of the ``wall'' that had severely constrained the flow of
information acquired through surveillance under the Foreign
Intelligence Surveillance Act from the intelligence side of the FBI to
the criminal side of the agency and to federal prosecutors, and the
broadening of the ability of the Justice Department to share grand jury
information with other intelligence and law enforcement agencies. We
endorsed the extension of those provisions, which witnesses were
virtually unanimous in telling us were extremely helpful to law
enforcement and intelligence investigations with little if any adverse
impact on the rights of potential defendants.
But we did propose a general test to be applied to consideration of
the renewal of other provisions of the USA PATRIOT Act, and we believe
that that principle should also be applied to other legislative and
regulatory proposals that are designed to strengthen our security but
that may impinge on individual rights. The test is a simple but
important one: The burden of proof should be on the proponents of the
measure to establish that the power or authority being sought would in
fact materially enhance national security, and that there will be
adequate supervision of the exercise of that power or authority top
ensure protection of civil liberties. If the power is granted, there
must be adequate guidelines and oversight to properly confine its use.
We think the same spirit that informed our recommendation as to the
burden of proof that should be applied to measures of this kind is also
reflected in H.R. 338, recently reported out of this Subcommittee and
the full Judiciary Committee. H.R. 338 requires federal agencies that
are proposing rules that will require the collection of personal
information from individuals to conduct privacy impact assessments as
part of their rulemaking process to ensure that privacy interests of
individuals receive attention and protection. The Commission, of
course, takes no position on that bill. But we can observe that it
proceeds from the same concerns that animate our recommendations.
Our third major recommendation flows from the first two. Individual
rights and liberties must be adequately protected in the administration
of the significant powers that Congress has granted to executive branch
agencies to protect national security. There should be a central office
or board that has the responsibility to oversee adherence to guidelines
that are built into these programs to safeguard those rights and
liberties. We make no recommendation as to how this office or board
should be composed or where in the executive branch it should be
located. Some Commissioners believe that it should be a permanent
office located in the Justice Department and reporting to the Attorney
General, but with oversight of programs in the Department of Homeland
Security and other agencies as well as in the Justice Department.
Others envision a Cabinet-level interagency board or committee,
reporting to the President. But we are all agreed that some entity of
this kind should be created.
We close with an observation from our Report:
We must find ways of reconciling security with liberty, since
the success of one protects the other. The choice between
security and liberty is a false choice, as nothing is more
likely to endanger America's liberties than the success of a
terrorist attack at home. Our history has shown us that
insecurity threatens liberty. Yet, if our liberties are
curtailed, we lose the values that we are struggling to defend.
We would be pleased to respond to your questions.
Mr. Cannon. Mr. Marsh.
TESTIMONY OF THE HONORABLE JOHN O. MARSH, JR., MEMBER, U.S.
DEPARTMENT OF DEFENSE TECHNOLOGY AND PRIVACY ADVISORY COMMITTEE
Mr. Marsh. Thank you, Mr. Chairman, Members of the
Committee and leaders of the Committee. I thank you for calling
this hearing. I would point out to you that I am here
representing an advisory committee appointed by Secretary of
Defense to the Department of Defense composed of members who
gave their time to make this study. Therefore, I am not
speaking for the Department of Defense of what action may or
may not occur in reference to our recommendations, but I am
very sanguine about that.
I would also like to point out, as resource people for the
committee, which I hope you will avail yourself of, the staff
director of the Defense TAPAC Committee, Ms. Lisa Davis; an
extraordinary writer, Fred Cate, who helped prepare all this
testimony; a technologist and attorney, Lee Zeichner, who is
here, and also the critical infrastructure protection
capabilities of George Mason University where I teach and that
assisted in this.
Mr. Minow could not be here, but I can tell you he
performed a yeoman's task of guiding this committee, and his
enormous prestige and ability I think is reflected in this
work.
A little history, if I might. This committee occurred
because of what was discerned to be abuses, or concerns about
abuses, largely outside of the Department of Defense on a
common technique that is growing and needs to be addressed
called ``data mining.'' Data mining is the result of massive
volumes of information, either people in or out of Government
or organizations, and the use of that data mining can be very,
very helpful in the intelligence process.
There is a dichotomy here because although the Defense
Department got in trouble with the pursuit of this,
nevertheless, the statute to the homeland security authorized
and encouraged them to engage in data processing. The data
processing that was occurring in the Pentagon was called TIA.
Its original name was terrorism information awareness or total
information awareness or terrorist information awareness,
whichever one you want, but it raised very serious questions in
the media and in the Congress of the United States.
When that happened, Mr. Rumsfeld named this committee, and
he gave them six questions that he wished to be answered as to
the validity of that type of technology and whether it could be
effective, and how do we protect individual liberty and
privacy.
Incidentally, I prefer the term ``liberty.'' It is a far
stronger word than ``privacy.'' Privacy occurs because of
liberty. Privacy is a subset of liberty.
Now, these four questions were the questions to which we
devoted our time and attention. And our first overtures were to
TIA, which was being done under DARPA, the Defense Advanced
Research Project Agency, that has done extraordinary work and
is indeed the agency that developed the Internet. It became
apparent to the committee that to address this one program,
TIA, would be putting a finger in a dike where many, many
fingers were going to be necessary.
This is a widespread practice in the Federal Government and
perhaps at State levels. A GAO survey indicated, as we were
finishing up our work, that there were 88 departments and
agencies engaged in data mining, or were planning to, that
there were an additional 34 about to, and in all, there were
122 data mining programs ongoing in our national Government,
not just in the Department of Defense. It became very apparent
to us, as we began to examine people, that data mining was
going on in other departments of Government. And there weren't
that many controls in my view and, I think, in the committee
view as to how that should be handled.
So what we sought to do--this report is seeking to provide
some guidelines as to how to utilize data mining, which we
think is essential only if it is used in a proper way, and we
believe that it can be. It can use the FICE Accord. It can use
technologies of minimization where in order to achieve certain
information you do not have to collect as much as you perceive
that you have to collect.
And also, there is the issue of anonymization. There are
technologies today in seeking records, you can anonymize the
records so that the people examining the records or capturing
the information do not know--do not know at the time what that
information is or they do not associate it with an individual.
At a later date, under certain guidelines, you can unlock that
and find that out.
But one of the things, and it seems to me to be a rule,
where U.S. persons are involved and you have a particularized
area of interest in that U.S. person and you go into data
mining, you use and resort to the FICE Accord. We place stress
or emphasis on the role of the FICE Accord.
Now, out of this would come--and I submit to the Committee
that I will not go through it all; your staff has seen it--
there came 12 recommendations. Seven of those recommendations
relate to the Department of Defense, because it was the
Department of Defense that had asked for these inputs. Five of
those relate to the Federal Government at large.
I was very impressed with the legislation that's proposed,
H.R. 338, that came out of this Committee, because as you read
our report and read the proposed statute, you begin to see that
there's a synchronization or there's a common theme through
there. It may not be the answer yet, but it seems to me steps
toward an answer.
So we talk about here how you can establish a process for
data mining inside the Department of Defense. And the idea was,
you create a mechanism in the Department of Defense that has
audit trails, that has overview, that has training, that has
authorization for certain techniques, and then you extrapolate
that and replicate those systems of protection into the general
Federal Government. And this evolved because we got in, we saw
we had a far, far greater problem.
It is not simply the Department of Defense, but there are
other departments and agencies of the Government, and indeed
data mining is done by the States. The program called Matrix,
which is a law enforcement program in the State of Florida,
uses data mining; and Matrix, I think you will find, has
significant Federal funding from certain other Federal
agencies, not the Department of Defense.
But we also place an emphasis on congressional oversight of
what's to be done. There needs to be a protocol or culture of
privacy that we need to encourage and develop. So we commend
those to you.
I thank you for what you're doing. The stakes are very,
very high. As I commented to my assistant professor, Ms. Angie
Chen of George Mason University, who is here today, ``the law
is going to have to address this.''
In September of 1787, as Washington was submitting the
draft Constitution to the convention, of the articles--to the
Congress--of the Confederation, it had a resolution in it. I
commend to you that resolution because it read, and it was
Washington's dilemma, a resolution probably written by Madison.
Washington fully concurred. The biggest problem, Washington
said, was drafting a document that was able to reconcile the
issue of liberty on one side and security on the other.
That's the problem that we have today. And we see our
Nation's capital, the people's House is a citadel, with the
Jersey walls and hydraulic gates and the limitation. Visitation
here used to be about 22,500. It is down now I understand to
about 2,000. These are evidences of the oppression and
intimidation that we are having to suffer because of the
problems with terrorism. But we will address that and we will--
and we will be stronger for it.
I would say to you, I was teaching these issues before 9/
11. We are feeling that we are being overwhelmed by rapid
advances in technology, particularly in the information
communication and information technology which gives the
terrorists enormous weapons.
Prior to 9/11, we would not sort out how we were going to
handle that, and the law was falling behind that technology.
And the Congress at the time was having trouble coming to grips
with it in a jurisdictional sense because of its pervasive
effort. Hopefully, through these types of efforts, we will,
one, be able to establish jurisdiction, and, secondly, be able
to achieve a very favorable and satisfactory result.
I thank you, Mr. Chairman.
Mr. Cannon. Thank you, Mr. Marsh.
[The prepared statement of Mr. Marsh follows:]
Prepared Statement of John O. Marsh, Jr.\1\
---------------------------------------------------------------------------
\1\ I gratefully acknowledge the assistance in the preparation of
this statement of Fred H. Cate, a Distinguished Professor and director
of the Indiana University Center for Applied Cybersecurity Research,
who served as Reporter for the Technology and Privacy Advisory
Committee.
---------------------------------------------------------------------------
Chairmen Chabot and Cannon, Distinguished Members:
I appreciate the opportunity to testify today about the work and
final recommendations of the Technology and Privacy Advisory Committee
appointed by Secretary of Defense Rumsfeld and chaired by the Honorable
Newton N. Minow, one of the nation' most experienced and distinguished
public servants. The Committee was created to examine the issues that
are the subject of today's hearing--the impact of the government's use
of personal information on privacy and civil liberties. Although our
charge focused on the Department of Defense, we rapidly discovered that
the issues, as well as the data mining activities that raise them,
occur throughout the government and require attention.
I applaud your leadership and that of your colleagues on the
Committee in holding today's hearing. As a former Member of Congress
and Secretary of the Army, I know that few issues could be more
important than the security of the Republic or the civil liberties of
its citizens. Ensuring that both are rigorously protected is a critical
obligation of all branches of Government--but especially of the
Congress--and I congratulate you for embracing that responsibility in
this hearing today.
the tension between privacy and national security
The final report of the 9/11 Commission report does a masterful job
of describing the horrendous terrorist attacks that took place on the
morning of September 11, 2001, and of analyzing the factors that
contributed to our nation's vulnerability to those attacks. The report
goes on to make a number of thoughtful recommendations, including the
urgent need that we use all of the information at our collective
disposal to protect against further attacks, but that we do so only in
ways that are consistent with protecting personal privacy.
The 9/11 Commission report does not suggest how we might exploit
that information without invading privacy. The report identifies the
goal, without providing any guidance as to the means. The Technology
and Privacy Committee had spent the prior year addressing many of these
issues about how we use information to protect national security
without infringing on privacy.
background of tapac
The history of TAPAC is fully laid out in our final report, the
executive summary from which I attach to my prepared testimony, so I
will only briefly recite it here. In early 2002, the Defense Advanced
Research Projects Agency (``DARPA'') announced that it was developing
advanced information technologies which could access personally
identifiable information in the fight against terrorism. The project--
called ``Terrorism Information Awareness'' (``TIA'') \2\ soon prompted
serious public and congressional criticism centered on the possible use
by government of personal information on U.S. citizens and permanent
resident aliens.
---------------------------------------------------------------------------
\2\ When first announced, the program was entitled ``Total
Information Awareness.'' The title was changed to ``Terrorism
Information Awareness'' in May 2003.
---------------------------------------------------------------------------
To address these and other concerns, in February 2003 Secretary
Rumsfeld appointed the Technology and Privacy Advisory Committee, the
members of which were private citizens, independent from the government
and ``selected on the basis of their preeminence in the fields of
constitutional law and public policy relating to communication and
information management.'' Establishment of the Technology and Privacy
Advisory Committee, 68 Fed. Reg. 11,384 (2003) (DOD, notice). He
charged TAPAC with answering four questions:
1. Should the goal of developing technologies that may help
identify terrorists before they act be pursued?
2. What safeguards should be developed to ensure that the
application of this or any like technology developed within DOD
is carried out in accordance with U.S. law and American values
related to privacy?
3. Which public policy goals are implicated by TIA and what
steps should be taken to ensure that TIA does not frustrate
those goals?
4. How should the government ensure that the application of
these technologies to global databases respects international
and foreign domestic law and policy? U.S. Department of
Defense, Technology and Privacy Advisory Committee Charter
(2003).
In June 2004, TAPAC released its final report, containing its
conclusions and 7 and 5 12 recommendations addressing data mining
within the Department of Defense and throughout the federal government.
Before turning to those conclusions and recommendations, I want to
stress two features of the Committee and its work.
First, the panel was strictly bi-partisan, both in its membership
and in the way it pursued its work. It was chaired by the Honorable
Newton N. Minow, Senior Counsel to the law firm of Sidley Austin Brown
& Wood, who served as chairman of the Federal Communications Commission
under President Kennedy, and later served as chairman of the Carnegie
Corporation, Public Broadcasting Service, and The RAND Corporation, and
vice chairman of the Commission on Presidential Debates. It would be
hard to find a more impartial, skillful, or experienced public servant.
The other Committee members with whom I was privileged to serve
were:
Floyd Abrams, a partner in the New York law firm of Cahill
Gordon & Reindel, the William J. Brennan, Jr. Visiting
Professor of First Amendment Law at the Columbia Graduate
School of Journalism, and one of the nation's leading experts
on the First Amendment.
Zoe Baird, President of the Markle Foundation, and previously
was senior vice president and general counsel of Aetna, Inc.,
and an attorney in White House and in the Justice Department.
Griffin Bell, formerly Managing Partner of King & Spalding, a
judge on the U.S. Court of Appeals for the Fifth Circuit, and
Attorney General of the United States.
Gerhard Casper, President Emeritus of Stanford University and
the Peter and Helen Bing Professor in Undergraduate Education
at Stanford.
William T. Coleman, Jr., Senior Partner and the Senior
Counselor in O'Melveny and Myers; he served as Secretary of
Transportation during the Ford Administration.
Lloyd N. Cutler, founding partner of the law firm of Wilmer,
Cutler & Pickering; he served as Counsel to Presidents Clinton
and Carter.
The second feature is that Secretary Rumsfeld charged the Committee
with considering not only laws applicable to privacy, but also
``American values related to privacy.'' This important addition to the
Committee's mandate obligated us to ask not only what the law
concerning government use of personal information was, but what it
should be.
the prevalence of government data mining and the limits of relevant law
From the outset, the Committee was struck by two discoveries. The
first was how widespread, not only in the Department of Defense, but
throughout the federal government, data mining was. In fact, report by
the General Accounting Office, released in May 2004 after the TAPAC
finished its work, found 42 federal departments or agencies--including
every cabinet-level agency that responded to the GAO's survey--engaged
in (88), or were planning to engage in (34), 122 data mining efforts
involving personal information. Thirty-six of those involve accessing
data from the private sector; 46 involve sharing data among federal
agencies. U.S. General Accounting Office, Data Mining: Federal Efforts
Cover a Wide Range of Uses (GAO-04-548), May 2004, at 3, 27-64, tables
2-25.
The Committee's second discovery was how limited the federal law
applicable to the government's use of personal information really was.
The law that does exist is often too narrow to ensure either that the
government can access the data it really needs to protect national
security and fight crime effectively or that individual privacy is
protected in the process. In particular, that law depends significantly
on whether the individual(s) involved are U.S. citizens, where the
search takes place, whether the information has ever been disclosed to
third parties, and the government's motivation for the search. In the
face of new terrorist threats posed within the territory of the United
States and global information technologies this system has grown
increasingly unworkable.
So what the Committee found was widespread data mining, and little
clarity in the law.
tapac's recommendations
As a result, the Committee focused its deliberations, and
ultimately its recommendations, on what the law should be to ensure
that information is used to enhance national security without impinging
on individual privacy or liberty. We unanimously agreed that the United
States should use data mining to enhance national security; our
recommendations then were focused on assuring that the privacy
interests of U.S. persons are not compromised when it does so. Because
those recommendations are included in the attached executive summary, I
will not recite all of them here, but I would like to focus on six that
are most relevant to today's hearing.
1. Privacy Tools
First, we thought it imperative that government data mining
programs take advantage of the technological and other tools available
to protect privacy. So, for example, we recommended requiring:
a.
Data minimization--the least data consistent with the
purpose of the data mining should be accessed, disseminated,
and retained.
b.
Data anonymization--whenever practicable data mining should
be performed on databases from which information by which
specific individuals can be commonly identified (e.g., name,
address, telephone number, SSN, unique title, etc.) has been
removed, encrypted, or otherwise obscured. Where it is not
practicable to use anonymized data, or access to identifying
information is required, the agency should comply with
Recommendation 2.4 below.
c.
Audit trail--data mining systems should be designed to
create a permanent, tamper-resistant record of when data have
been accessed and by whom.
d.
Security and access--data mining systems should be secured
against accidental or deliberate unauthorized access, use,
alteration, or destruction, and access to such systems should
be restricted to persons with a legitimate need and protected
by appropriate access controls taking into account the
sensitivity of the data.
e.
Training--all persons engaged in developing or using data
mining systems should be trained in their appropriate use and
the laws and regulations applicable to their use.
(Recommendation 2.2)
We also recommended special protection when data mining would
involve the use of data from the private sector or other government
agencies. (Recommendation 2.3)
2. Privacy Culture
Second, we thought it was critical that concern for privacy and
other civil liberties be instilled at every level within agencies that
engage in data mining. We therefore proposed that agency personnel
receive appropriate training (Recommendation 2.2(e)), the creation of a
policy-level privacy officer to help promote sensitivity to privacy
throughout agencies (Recommendation 4), the appointment of external
privacy advisors to help provide privacy-related input from outside of
the agency (Recommendation 5), and that the agency head be charged
specifically with creating ``culture of sensitivity to, and knowledge
about, privacy issues'' throughout the agency (Recommendation 7).
3. Internal Accountability
Third, we believed that accountability was absolutely critical to
protecting privacy, to ensuring that data mining was conducted
efficiently and effectively, and to building public confidence in the
government's data mining efforts. This objective undergirded many of
our recommendations. We thought of accountability as occurring in two
distinct settings: internal and external.
Internal accountability would be enhanced, we believed, first by
ensuring that no agency engage in data mining involving personal
information without making a conscious, thoughtful decision to do so,
or without fully appreciating the potential privacy ramifications of
its actions. So, for example, we recommended that data mining require
written authorization by the agency head. (Recommendation 2.1) That
written finding would demonstrate that a senior government official had
thought through:
a.
the purposes for which the system may be used;
b.
the need for the data to accomplish that purpose;
c.
the specific uses to which the data will be put;
d.
that the data are appropriate for that use, taking into
account the purpose(s) for which the data were collected, their
age, and the conditions under which they have been stored and
protected;
e.
that other equally effective but less intrusive means of
achieving the same purpose are either not practically available
or are already being used;
f.
the effect(s) on individuals identified through the data
mining (e.g., they will be the subject of further investigation
for which a warrant will be sought, they will be subject to
additional scrutiny before being allowed to board an aircraft,
etc.)
g.
that the system has been demonstrated to his or her
satisfaction to be effective and appropriate for that purpose;
h.
that the system complies with the other requirements of
this recommendation as enacted by law, executive order, or
other means;
i.
that the system yields a rate of false positives that is
acceptable in view of the purpose of the search, the severity
of the effect of being identified, and the likelihood of
further investigation; and
j.
that there is a system in place for dealing with false
positives (e.g., reporting false positives to developers to
improve the system, correcting incorrect information if
possible, remedying the effects of false positives as quickly
as practicable, etc.), including identifying the frequency and
effects of false positives. (Recommendation 2.1)
That written finding would also serve to ensure that a policy-level
official (in almost every case an official whose appointment was
subject to Senate confirmation), was involved in making the
determination to go forward.
We believed internal accountability would also be fostered through
the creation of a senior policy-level privacy officer (Recommendation
5), by regular audits of all data mining programs (Recommendation 2.5),
by seeking the advice of external privacy experts (Recommendation 5),
and through renewed efforts by the agency head to ensure the
``effective operation of meaningful oversight mechanisms''
(Recommendation 6).
4. External Accountability
Fourth, while accountability within an agency is essential, it is
no substitute for external accountability, and it was here that our
strongest--and most controversial--recommendations were focused. I
suspect it is the failure to provide for meaningful external
accountability that has contributed to public unrest about programs
such as TIA and CAPPS II. Our goal was to help diffuse some of that
controversy in the future by providing for meaningful external
oversight.
TAPAC recognized that programs to enhance national security and
public safety will often involve classified information or require
speedy action, and so traditional accountability measures (such as
public notice and opportunity to comment, or judicial review) may not
work. Nevertheless, we believed that significant tools are available
and should be required when the government accesses personal
information about its citizens or legal aliens.
a.
Judicial Review
One critical external accountability measure we recommended is
recourse to the courts before conducting data mining with personally
identifiable information about U.S. persons. (Recommendation 2.4) We
recommended the Foreign Intelligence Surveillance Act court, to help
provide for speedy and confidential review, but the particular court is
not nearly as important as the concept of judicial review. The public
understandably derives confidence from knowing that an independent,
judicial authority is reviewing government data mining efforts. This is
especially true when, because of secrecy concerns, the public may not
have access to information about those efforts.
We stressed that judicial review could be obtained for specific
searches or for entire data mining programs (Recommendation 2.4(a)(v)),
and we provided that, in exigent circumstances, the review could be
obtained after-the-fact (Recommendation 2.4(c)). Our goal in crafting
these provisions was not merely to ensure that the process of judicial
review not interfere with national security, but also to highlight that
even the exigencies of the war on terrorism do not justify abandoning
the vital principle of judicial review.
b.
Congressional Oversight
The other essential component of external accountability is
oversight by the Congress. You are the people's elected representatives
and it is your unique duty to ensure that the people's business is
carried out effectively, efficiently, and without compromising the
people's rights. TAPAC therefore recommended that each agency's privacy
officer have a direct reporting line to Congress, as you provided with
regard to the Department of Homeland Security's privacy officer--a
position ably filled by Ms. Nuala O'Connor Kelly, who appeared before
TAPAC. We went a step further, however, to recommend that the agency
head appear as well, and that the privacy officer and agency head
jointly brief you, at least annually, on
a.
the agency's compliance with applicable privacy laws;
b.
the number and nature of data mining systems within the
agency, the purposes for which they are used, and whether they
are likely to contain individually identifiable information
about U.S. persons;
c.
the number and general scope of agency findings authorizing
data mining;
d.
the number and general scope of agency findings and court
orders authorizing searches of individually identifiable
information about U.S. persons; and
e.
other efforts to protect privacy in the agency's collection
and use of U.S. person data. (Recommendation 11)
These are serious obligations; we meant them to be. Nothing less
guarantees you the information and regular access to senior personnel
necessary to provide the accountability that the public expects.
To carry out these obligations, we made an equally bold
recommendation that you take the steps necessary to streamline
committee jurisdiction:
To facilitate this reporting process and consistent,
knowledgeable oversight, each house of Congress should identify
a single committee to receive all of the agencies' reports.
Other committees may have jurisdiction over specific agencies
and therefore also receive reports from those agencies, but we
believe it is important for a single committee in each house to
maintain broad oversight over the full range of federal
government data mining activities. To the extent the
jurisdiction of congressional committees overlaps, we believe
it is essential for Congress to clarify and clearly articulate
the relative responsibilities of each committee, to avoid
undermining either privacy protection or national security
efforts. (Recommendation 11)
As a former Member of Congress, I am well aware of the uphill
battle that such an effort involves, but we believed it is essential
for meaningful oversight of both privacy and security.
5. Consistent Laws and Processes
Fifth, TAPAC recommended that all of the actions outlined above be
carried out across the government. This would include adopting a single
framework of legal, technological, training, and oversight mechanisms
necessary to guarantee the privacy of U.S. persons in the context of
national security and law enforcement activities; the appointment of a
privacy officer in every federal agency; and the creation of an inter-
agency coordinating committee and the use of external advisors to help
ensure the consistent application of privacy laws and principles.
(Recommendations 8-10)
TAPAC recognized that privacy protections would not necessarily be
the same in every setting, but we believed it essential that they be
consistent, based on common principles, and subject to uniform
oversight.
The recent report of the 9/11 Commission only highlights the
importance of these recommendations. It makes little sense to
coordinate this nation's intelligence and national security activities,
without going one step further to coordinate the laws and processes
that ensure those activities respect our privacy and civil liberties.
6. Research
Finally, TAPAC recognized the importance of research into
technological and other tools for making data mining more precise and
accurate and for protecting privacy, as well as into the development of
policies and laws to facilitate both data mining and privacy.
(Recommendations 7, 12) One unfortunate consequence of Congress
blocking further development of TIA was to prohibit further research by
DARPA into both data mining and privacy.
This is regrettable; our nation desperately needs to understand
better the technological, behavioral, and policy tools for using
information effectively and appropriately, whether to fight terrorism,
apprehend criminals, or otherwise serve the public. There are many
private initiatives to expand our understanding--my own program at the
George Mason School of Law is one example--but if we are serious about
using information to fight terrorism and serious about protecting
privacy while doing so, it is going to require the investment of public
funds.
the link between privacy and national security
I began by describing the tension between privacy and national
security; I would now like to highlight what TAPAC saw as the essential
link between the two. Many of our recommendations that may have been
motivated by a desire to protect privacy, also contribute to enhancing
security as well. Data minimization, for example, is a key privacy
tool, but it also helps protect intelligence agencies from being
overwhelmed by irrelevant data. Tools for data correction are another
example: data mining with inaccurate data certainly threatens privacy
and civil liberties, but it also threatens security as well. Any system
of data analysis that is not concerned with data quality and accuracy
is likely to compromise both privacy and security.
Privacy and national security are also inherently linked because
American values will not accept the latter at the cost of the former.
Recent protests over TIA, CAPPS II, and other programs have shown that
the American public will not either. Inadequate, unclear, or uncertain
privacy laws are slowing the development of new and promising data
mining programs, they are undermining research into this important
weapon in the war on terrorism, and they are hampering the very data
sharing that the 9/11 Commission wisely recommended. Clearing up this
mess is critical both to protecting our privacy and to protecting our
security.
the role of the judiciary committee
TAPAC took no position on which committee in Congress should take
the lead on this vital effort, but I believe the Committee on the
Judiciary is an ideal choice. The issues involve come within the
jurisdiction of many committees--Armed Services, Intelligence,
Commerce, Ways and Means, and others--but the foundational issue that
cuts across all of these different settings is the constitutional and
legal framework applicable to data mining. That is the fundamental
question--the starting place for all other analysis. That is your turf.
And I assume that is why you have called these important hearings
today.
conclusion
Throughout Washington, throughout the nation, citizens are lining
up to be searched before entering federal buildings or boarding
aircraft. The mail is delayed so it can be scanned. Luggage is x-rayed
and rummaged through. Roads are closed, entrances blocked with concrete
barricades, access to public resources denied. Surveillance cameras and
identity checks are replacing anonymity. The result is not just
inconvenience or annoyance, it is a vast toll on our economy and
productivity and a profound intrusion on our privacy and most basic
civil liberties.
Think of the effect on government. The threat of terrorism has
turned the People's House into an armed citadel. The Capitol, the very
heart of democratic government, is under siege, and with it our
privacy, liberty, and most cherished values.
Data mining--as both the 9/11 Commission and TAPAC noted--is a
vital weapon in the war on terrorism. It poses grave risks to privacy,
but there are numerous steps, many (but certainly not all) of which are
outlined in the TAPAC report, that can reduce or eliminate those risks.
Those steps may not only protect privacy, but also enhance security as
well. More importantly, when pursued effectively and subject to
appropriate safeguards, data mining may threaten privacy and civil
liberties far less than the other tools on which we rely so heavily and
so regrettably today.
Thank you.
ATTACHMENT
Mr. Cannon. Ms. O'Connor Kelly.
TESTIMONY OF NUALA O'CONNOR KELLY, CHIEF PRIVACY OFFICER, U.S.
DEPARTMENT OF HOMELAND SECURITY
Ms. O'Connor Kelly. Chairman Cannon, Ranking Member Watt,
Chairman Chabot, Ranking Member Nadler, Members of
Subcommittees and distinguished colleagues on the panel, it is
my great honor to be before you on behalf of the United States
Department of Homeland Security's Privacy Office, which I am
privileged to lead as the Department's first Chief Privacy
Officer.
I am pleased to offer my reflections on the findings and
recommendations of the 9/11 Commission Report and also on the
Report of the Department of Defense, TAPAC, particularly as
they relate to the privacy of individuals.
As the first statutorily-mandated Privacy Officer in the
Federal Government in a role that provides both investigative
oversight and policy advice, I am keenly aware of the
challenges presented by the Commission's role. In every
respect, the 9/11 Commission has met those daunting challenges
admirably, and I know I join every American in thanking them
for their work.
The Report teaches us that one of the reasons the United
States failed to prevent the September 11 attacks was its
failure to think creatively.
As the Commission's work points out, our future requires
new and creative modes of thinking and demands that we
institutionalize new and imaginative mindsets within the very
culture and structure of our Federal Government. Most
importantly, we must perform our tasks in a manner that
respects the privacy, the dignity and the personal freedoms of
each individual in the United States.
Just as the Commission recommends institutionalizing
imagination, we at the Department of Homeland Security have
already begun operationalizing privacy awareness within the
very culture of our organization. This has meant both
responding to privacy complaints from within and outside the
Department and actively raising privacy awareness across each
of our directorates.
We have crafted privacy training and privacy policies for
many of our new programs, ensured that the statutorily-required
privacy impact assessments and system of record notices are
written and reviewed, and counseled DHS officials regarding the
effective and responsible uses of new technologies.
Outside of our organization, we have reached to advocacy
groups, to our partners in the European Union and throughout
the world and to the general public for input and guidance on
our programs. We are vigorously pursuing our statutory mission
of ensuring that the Department's technologies and programs
sustain, and do not erode, privacy protections relating to the
collection, use and disclosure of personal information.
No one has been a greater champion in these efforts than
Secretary Tom Ridge, who from the very inception of our
Department has recognized that privacy is a vital thread that
runs through the fabric of the United States. Privacy is a
value today that we seek to protect, as we protect both the
tangible and intangible assets of our country through all of
our endeavors at the Department.
I wish to thank Secretary Ridge and also Deputy Secretary
Loy and commend them for their leadership and active support of
my role and for the efforts of the DHS Privacy Office,
including our more than 430 Privacy and Freedom of Information
Act specialists throughout the Department.
The wisdom that Congress demonstrated when it mandated a
Chief Privacy Officer and an integrated Privacy Office within
the Department of Homeland Security represents precisely the
kind of bold and creative thinking that will be demanded of our
leaders and policymakers in the post-9/11 world. As the United
States transforms its Federal intelligence and law enforcement
communities, operationalizing privacy protections across the
Federal Government, it is imperative that we sustain this
dialogue among policymakers, technologists, intelligence
professionals, law enforcement officials and also the private
sector.
The Commission's recommendations raise a number of points
that are crucial to bear in mind as we move ahead in this new
process. The Commission points out that the choice between
security and liberty is a false choice. We as a Nation must
abandon the pessimistic and misguided notion that in order to
be safe we must sacrifice the privacy of our personal
information. The Department of Homeland Security's Privacy
Office has worked tirelessly to demonstrate that the dichotomy
between liberty and security is a false one by working in
partnership with program and policy personnel to embed privacy
within successful security initiatives from the very beginning.
As we seek to combine information in new and creative ways
in the Federal Government, we must also establish and enforce
concrete safeguards that prevent the Federal Government from
exceeding its boundaries. As the Commission correctly points
out, the burden should be on policymakers to prove that any new
power granted to the Government is accompanied by adequate
guidelines and oversight to properly confine its use.
The Commission's report findings heavily underscore the
need to abandon the compartmentalized structure of our
intelligence bureaucracy that existed before 9/11 and move to a
more integrated system. Congress should permit agencies to
share and disclose information collected for counterterrorism
purposes if such sharing and disclosure is necessary and
appropriate to achieve a security function. However, agencies
should also demonstrate an adherence to privacy principles and
fair information practices, including educating employees about
the purposeful and responsible use of information.
A final matter is the recommendation of the Commission that
the President appoint a board within the executive branch to
oversee adherence to these guidelines and recommend the
commitment the Government makes to defend its civil liberties.
We are keenly aware in our office of the benefit of having
a central, coordinating privacy authority that is both
knowledgeable about organizational structures and yet
independent enough to act as an effective privacy advocate. It
is one of the greatest challenges and opportunities of our
office that we serve both outside and inside roles in the
structure of our agency. The Chief Privacy Officer is appointed
by the Secretary, but also is a position created by Congress
and reports to Congress. The dual aspects of this role have
allowed our office to turn a critical eye on the most
controversial and also mundane aspects of the Department's
operations, while offering a supporting hand to our key
decisionmakers.
Any privacy oversight body in a sense must also be both
outside and inside the Federal Government. Any such body must
combine real knowledge of ongoing activities with real
authority to confront and prevent abuse. I look forward to
sharing my own experiences and participating in the public
dialogue on such a matter in the coming months.
I extend my deepest gratitude to Chairman Cannon and to the
Members of the Subcommittee for your oversight and interest in
our office, and I thank you for your time and attention.
Mr. Cannon. Thank you, and thank you to all the Members of
the panel.
[The prepared statement of Ms. O'Connor Kelly follows:]
Prepared Statement of Nuala O'Connor Kelly
Chairman Cannon, Ranking Member Watt, Members of the Subcommittee,
and distinguished colleagues on this panel, it is an honor to testify
before you today regarding the 9/11 Commission on behalf of the United
States Department of Homeland Security's Privacy Office, which I am
privileged to lead as the first Chief Privacy Officer.
I am pleased to offer my reflections on the findings and
recommendations of the 9/11 Commission's report. That Commission was
charged by Congress and our President with the important yet daunting
task of investigating this tragic event in our history with an eye
toward implementing future changes. As the first statutorily-mandated
Privacy Officer in the Federal Government, and as someone who provides
both investigative oversight and policy advice, I am keenly aware of
the challenges presented by the Commission's role. It is a role that
requires both tenacity and discretion, persistent determination and
unyielding patience, meticulous attention to detail and perceptive
understanding of the ``bigger picture''. In every respect, the 9/11
Commission has met those daunting challenges admirably, and I know that
I join every American when I commend and thank them for their fine
work.
We have heard from the Commission's Report that among the many
reasons for the United States government's failure to prevent those
dreadful attacks was a failure to think creatively about the challenges
we faced and to act upon information we received. In the words of the
Commission, we suffered a ``failure of imagination''. Looking forward,
it is clear from the Commission's work that the years ahead will
require new and creative modes of thinking and will demand that we
``institutionalize'' new, imaginative mindsets within the very culture
and structures of our government. Most importantly, we must perform
these tasks in a manner that respects the privacy, dignity, and
personal freedoms of every individual who lives in and visits the
United States. Indeed, years from now, we will be said to have suffered
yet another tragic ``failure of imagination'' if, while undertaking
efforts to reform our intelligence community and protect our security,
we fail to think and act creatively to protect privacy as well.
one year onward: protecting privacy within dhs
My firm belief, which has been affirmed by my experiences during
the past year, is that protecting both privacy and security is well
within the grasp of our collective imagination. In fact, during my
first year as the Chief Privacy Officer of our Department, I have
operated under that very premise, and have worked to ensure that
privacy and security go hand-in-hand as we carry out our protective
mission. In much the same way that the 9/11 Commission recommends
``institutionalizing imagination'', we at the Department of Homeland
Security have begun instituting and operationalizing privacy awareness
within the very culture of our organization. We have done so by working
side-by-side with senior leadership and by ensuring that as programs
move forward to implementation, they have been carefully and thoroughly
analyzed for their impact on personal privacy. This has meant
responding to privacy complaints from inside and outside the Department
and actively raising awareness of privacy across all of our
directorates. We have crafted privacy training and privacy policies for
many of our programs, ensured that statutorily-required Privacy Impact
Assessments and System of Records Notices are written and reviewed, and
counseled DHS officials regarding the effective and responsible use of
technology. Beyond our organization, we have reached out to advocacy
groups and the general public for input and guidance. Moreover, on the
international level, we have reached important agreements with our
partners in the EU and elsewhere, and have participated in fruitful
discussions with organizations like the International Association of
Data Protection and Privacy Commissioners. In short, my office is
vigorously pursuing its statutory missions, including ensuring that DHS
technologies ``sustain, and do not erode, privacy protections relating
to the use, collection, and disclosure of personal information.''
It is not an accident that DHS in its very first year began linking
the values of homeland security and privacy protection as being
compatible rather than opposing goals. It was a well thought out
legislative design, firmly embedded in Section 222 of the Homeland
Security Act, to reflect fundamental American values. No one has been a
greater champion of this pairing of values than Secretary Tom Ridge,
who from the very beginning has set the direction ``from the top'' that
privacy, matters of individual dignity, and civil liberties define the
fabric of America that we seek to protect in all of our endeavors at
DHS. Today, I wish to thank Secretary Ridge publicly and commend him
for his leadership and active support for the role and efforts of the
Privacy Office at DHS and the entire Privacy team, which includes more
than 430 Privacy Act and Freedom of Information specialists who work
throughout the Department.
looking forward: privacy across the federal government
The wisdom Congress demonstrated when it mandated a Privacy Officer
within DHS represents precisely the kind of bold and creative thinking
that will be demanded of our leaders and policy-makers in a post 9/11
world. As the United States transforms its federal intelligence and law
enforcement communities, operationalizing privacy protections across
all of government will be more imperative, and more challenging, than
ever. It will require, first and foremost, sustained dialogue among
policy makers, technologists, intelligence professionals, law
enforcement officials, and the private sector. The Commission's Report
has provided an excellent starting point for that dialogue. Their
recommendations raise a number of points that are crucial to bear in
mind as we move ahead in this process.
First, as the Commission quite correctly points out, ``the choice
between security and liberty is a false choice''. We as a nation must
abandon, once and for all, the notion that in order to be safe, we must
give up our right to keep our personal information private. As the
recent TAPAC Report concluded, ``The stakes on both sides--guarding
against attacks and protecting privacy--could not be higher. We must
not sacrifice one for the other. . . .'' Within DHS, the Privacy Office
has worked tirelessly to prove this point, and to demonstrate that the
sometimes perceived dichotomy between liberty and security is a false
one. As I have said on numerous occasions, the protection of privacy is
neither an adjunct, nor the antithesis to, the mission of the
Department of Homeland Security. Rather, privacy protection is, in
fact, at the core of that mission. Likewise, privacy protection must
also be at the core of our national mission as we devise ways to reform
and improve our intelligence and anti-terrorist efforts.
One way that we as a nation can put to rest the perceived dichotomy
between liberty and security is by unleashing the vast potential of our
technology. Too often, advances in technology are met with concern and
trepidation. Yet, just as our technology can be misused to suppress
privacy, so too can it be used to enhance and protect it. During my
time as Chief Privacy Officer, I have observed first-hand how
technology solutions can greatly enhance the privacy of individuals.
Technical features such as encryption, audit trails, one-way hash
functions, and tiered access control modules, among others, make it
possible to analyze information in a way that protects people's safety
while limiting access to personal information and preserving the
integrity of data. Moreover, as technologists know quite well,
information security is paramount to protecting privacy. Therefore, the
key to ensuring that technologies used by our government sustain and do
not erode privacy will be to harness the creative energy of those who
design and implement our technical infrastructures, challenging them to
devise new solutions that secure and protect our personal information.
oversight and guidelines
Technology and privacy awareness, while important, will not be
enough to address our current challenges. As we move forward, we will
also need to establish and enforce concrete safeguards that prevent
government from exceeding its proper bounds. As the Commission
correctly points out, the burden should be on policy-makers to prove
that any new power granted to government is accompanied by ``adequate
guidelines and oversight to properly confine its use.'' The idea here
is an important one--privacy protections must be put in place at the
front-end of our governmental processes when programs are in their
infancy, rather than later, after privacy abuses and mistakes have
already taken place.
The United States has a firm foundation upon which to build
additional privacy protections. Existing laws such as the Privacy Act
of 1974, the Freedom of Information Act, and the E-Government Act all
seek to embed ``fair information practices'' and a general respect for
privacy into the daily operations of our government. Coupled with our
Constitutional provisions, these statutes form an essential part of a
privacy culture that will only become more relevant in the years to
come. As we build upon this legacy of privacy protection, we must find
ways to embed these values within the new statutory frameworks that
will govern the collection, use, sharing, and retention of intelligence
and other personal information.
Much of the 9/11 Commission Report's comments in this area address
the need to integrate and coordinate the data that are collected for
our antiterrorism efforts more effectively. The Report's findings
underscore the need to abandon the compartmentalized structure of our
intelligence bureaucracy that existed before 9/11 and move to a more
integrated system. It is my view that Congress should permit agencies
to establish clear parameters for sharing information to protect
privacy. As some have said, we must move from a ``need to know'' to a
``need to share''. Establishing reasonable limits on access and
embedding fair use principles will be important, not only because it
will protect individuals, but also because it will engender the kind of
trust in government that is necessary to achieve the cooperation of
both the public and private sectors. In failing to abide by these
principles, we risk replacing the problem of ``stove-pipes'', in which
disparate pieces of information are never adequately integrated, with
one of ``leaky pipes'', in which personal information is exposed for
all to see.
creating an oversight body for privacy and civil liberties
I would like to address, as a final matter, the recommendation of
the Commission that the President appoint ``a board within the
executive branch to oversee adherence to the guidelines we recommend
and the commitment the government makes to defend our civil
liberties.''
I am keenly aware of the benefits of having a central, coordinating
privacy authority that is both knowledgeable enough about
organizational structures to obtain information and yet independent
enough to act as an effective privacy advocate. It has been one of the
greatest advantages of my position at DHS that I serve concomitant
roles both inside and outside the structures of our agency. The Chief
Privacy officer is appointed by the Secretary, but is a position
created by statute and required to report to Congress. The dual aspects
of this role have allowed me to turn a critical eye on the most
controversial and the most ordinary aspects of the Department's
operations, while also offering a supportive hand to key decision-
makers. I do not see my office as the enemy of the missions of the
Department. Rather, I see it as crucial to achieving that mission
successfully.
Implementing such an oversight position for the entire federal
government is admittedly a different task, one that would require
attention to matters of a completely different nature and scale. Since
the government's response to the 9/11 Commission's recommendations is
still being formulated, it is too early to say precisely what type of
body will best address the privacy needs of our Federal Government.
While the challenges and responsibilities faced by the person or
persons who undertake this responsibility will be distinct from those
faced by the Chief Privacy Officer at DHS, I look forward to sharing my
own experiences and participating in the public dialogue on this matter
in the coming months.
conclusion
Each and every one of the issues raised by the 9/11 Commission
regarding the upholding of personal privacy presents a unique but
highly important challenge to our nation. Facing these challenges will
require extraordinary imagination. The exercise of that imagination and
the implementation of the resulting changes certainly will not be easy.
And yet as Thomas Jefferson wisely noted, ``It is part of the American
character to consider nothing as desperate; to surmount every
difficulty with resolution. . . .'' If there is any over-arching lesson
to be learned from the fine work of the 9/11 Commission, it is
precisely that. Three years after the 9/11 attacks on New York and
Washington, and in the memory of those who passed in the fields of
Pennsylvania, our nation is united in its desire to learn from the past
by re-organizing and reforming antiterrorism efforts. At the same time,
we seek to renew our foundational commitment to respecting the privacy
of each individual, as a matter of law and policy. As the DHS Privacy
Officer, I work daily to ensure that this sacred commitment--our
unwavering determination to secure both our liberty and our land--is a
guiding force behind every decision at the Department of Homeland
Security. Thanks to the fine work of this Subcommittee, I am quite
confident that our commitment to the protection of individual privacy
will continue to guide anti-terrorism efforts not only within DHS, but
across our entire Federal Government.
I would like to extend my deepest gratitude to you, Chairman Cannon
and to the Members of the Subcommittee for your tireless work and
enduring contribution to our nation. Thank you today for your time and
attention. I would be happy to respond to your questions.
Mr. Cannon. I think we are going to proceed by seniority on
each side of the dais, beginning with the co-Chairman of this
panel, Mr. Chabot.
Mr. Chabot. I did mention in my opening statement that I
have a particular interest in H.R. 338, the Federal Agency
Protection of Privacy Act, formerly known as the Defense of
Privacy Act, it is basically the same bill, and I think,
Senator Gorton and Secretary Marsh, you have both mentioned
that in your testimony.
A number of us were very concerned and have been for years
that too often when regulations or rules were promulgated by
various agencies that privacy protections of the American
people too often were kind of an afterthought and were not
necessarily taken into consideration, and they should be up
front.
In essence, what this Act requires is--we all know about
environmental impact statements--is basically a privacy impact
statement. What it amounts to is to determine whether or not
the agency has taken into consideration privacy issues and
maybe there was an alternative way to be less intrusive on
those privacy rights, just to make sure we are looking at these
things ahead of time.
I actually introduced this back in the 106th Congress; and
our colleague, Congressman Bob Barr, took it up in the 107th.
We reintroduced it; and I want to thank my Ranking Member, Mr.
Nadler from New York, for cosponsoring this and also Chairman
Cannon for cosponsoring this as well. But it passed in the
Judiciary Committee back on July 7, so it will be moving
hopefully to the floor in the near future.
But I would be interested to hear from the panel members as
to how they think--and I know, Senator, I think you stated you
cannot necessarily recommend for or against legislation, but
how do you think this could potentially impact the issues that
we are talking about here relative to the 9/11 Commission?
Mr. Gorton. We in the 9/11 Commission took sort of a self-
denying ordinance, you know, in not going beyond the
recommendations that we made. We were perhaps as surprised as
we were delighted that we were able to come out unanimously,
and that required a degree of self-restraint. So we cannot take
a particular position on your bill. But we can say it is quite
consistent. It certainly seems to proceed from the same
philosophy that guided us in asking for the creation of this
board to see to the protection of the civil liberties from any
new powers granted in the war against terrorism.
Mr. Chabot. Thank you.
Secretary Marsh, I didn't know if you wanted to add
anything.
Mr. Marsh. I believe that it would be helpful to give it
more of a defense or national security flavor for those
portions that involve the Department of Defense or the
Intelligence Community, and they have to be singled out because
they are going to have to be treated differently. But I think
it is a step in the right direction.
If you look at the recommendations of the Committee Report,
they are very elaborate recommendations on establishing a
regime or protocol of how to do this, and it involves the
President of the United States. We are suggesting also
overview, not because they are not going to do a good job but
simply to emphasize the importance of what is being done by the
legislation.
I think the legislation is a very good starting point,
Congressman; and I welcome it. It is responsive to one of our
problems.
Mr. Chabot. Thank you very much.
I am probably not going to be able to get into a lot, I
have 1 minute left, but one of the other areas that I wanted to
delve into, maybe some of my colleagues will, is one of the
recommendations of the 9/11 Commission Report that stated, ``At
this time of increased and consolidated Government authority,
there should be a board within the executive branch to oversee
adherence to the guidelines we recommend and the commitment the
Government makes to defend our civil liberties.''
I think prior to deciding the structure of an organization
there must be a clear understanding of that organization's
mission. So there are a number of questions that I think at
some point it would be very helpful to get into, such as does
the 9/11 Commission view the board recommended in the report as
being limited to examining privacy, or should it weigh in on
all things related to the nexus between civil liberties and
Government action, and would the board be charged with
evaluating security against privacy protections and would it be
a watchdog or a facilitator.
There are many aspects that I think we would be interested
to get into, but my time has already wound up here, so I will
yield back my time at this point.
Mr. Cannon. The gentleman yields back.
Mr. Nadler, would you like to take the next 5 minutes?
Mr. Nadler. Thank you, Mr. Chairman.
Congressman Hamilton, Senator Gorton, in your statement, in
your joint statement, you said that the test, referring to the
PATRIOT Act and some other things, the test is a simple but
important one. The burden of proof should be on the proponents
of the measure to establish that the power or authority being
sought would in fact materially enhance national security and
that there will be adequate supervision of the exercise of that
power or authority to ensure protection of civil liberties. It
is sort of a but-for test: but for this power, would we be less
safe?
This Committee has repeatedly asked the Attorney General
that question with respect--or at least some Members of this
Committee have repeatedly asked the Attorney General that
question with respect to various provisions of the PATRIOT Act,
and we have been unable to get any specific responses.
In other words, if this power which the PATRIOT Act grants
had existed pre-9/11, would--if that power had existed pre-9/
11, would it have made a difference in preventing 9/11, for
example, in your opinion? We have been unable to get any
answers on that.
So my question is, in light of that experience, with
respect to the privacy board or privacy officers you are
proposing, what steps do you think that we need to take to
ensure that these officials, one, are independent; two, are
able to get the information that they need to get in order to
do their work--information, as I said, this Committee can often
not get; and, three, that they have the clout needed to have an
impact?
Mr. Hamilton. Well, Mr. Nadler, those are difficult
questions to answer because they really go to the power of the
Congress to conduct effective oversight. And my view, I guess
not the Commission's view--I shouldn't try to speak for the
Commission at this point--but I am very concerned about the
lack of robustness, if you would, or aggressiveness, in
congressional oversight today.
We did not try to get into the specifics of the PATRIOT
Act, except with regard to the one provision on the wall of
separation, but we did suggest this test for any official, and
that is as deeply as we went into it.
When the executive does not respond to the Congress--and,
incidentally, we hear that complaint often in our appearing
before different Committees. It appears to me that the problem
is quite pervasive in the executive-congressional relationship.
It is not anything that is new. It goes back for a good many
years.
I think there is a lot of timidity in the Congress with
regard to its exercise of oversight and, at the end of the day,
they are only going to pay attention to you if you have budget
authority with them.
Mr. Nadler. That brings up the real question I am asking,
which is not simply--I think that this Congress has been very
timid in exercising oversight, too, but that is really a
separate issue.
My point was that we have been unable to get the
information, and in light of that experience, if we are to
establish this privacy board, these privacy officers that you
are recommending, what do we have to do to make sure that they
can get the information that we have not been able to get, that
they can get information that they need once we have
established that they are independent and that they have the
clout? What powers do we have to give them, what authority do
we have to give them to make sure they can do the job that you
are outlining for us?
Mr. Hamilton. Mr. Nadler, we simply did not try to get into
the details of the powers that the board would have.
You mentioned I think a moment ago that Congress has to
fill in the details, and this is a major detail that you would
have to fill in. My own personal view is the board should have
quite robust powers. But the important thing here to recognize
is that what we have recommended calls for a great deal of
Government intervention and strengthening of Government powers
over individual lives. That is just inherent in
counterterrorism policy. You are greatly expanding the role of
Government when you are fighting terrorists, and we think it is
necessary because of the threat.
Mr. Nadler. Could I have 1 additional minute?
Mr. Cannon. Without objection.
Mr. Hamilton. You have to have some check on that
expansion.
Mr. Nadler. Which brings me to the other question I wanted
to ask, and that is an internal board cannot take the place, in
my opinion, of meaningful court oversight, so to what extent do
you think--so Secretary Marsh is probably the better person to
ask this question to--to what extent should there be court
judicial review of the actions or lack of actions of this board
or these privacy officers?
Mr. Marsh. Well, we recommend that there be oversight
internally and that the oversight will be in the courts. We
feel that court review at various junctures of this is a very,
very powerful method of protecting----
Mr. Nadler. So it shouldn't be an arbitrary and capricious
standard. You should have better access?
Mr. Marsh. We insist on access to the FISA courts wherever
you are dealing with a U.S. person.
Mr. Cannon. The gentleman's time has expired.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Cannon. Do you want another minute or two?
Mr. Nadler. I would.
Mr. Cannon. Without objection, the gentleman is recommended
for an additional 2 minutes.
Mr. Nadler. Senator Gorton seems to be interested in
answering this, too. The question I would like you to address
is, the courts should have oversight, but very often, in fact,
even usually, the courts' oversight of administrative agencies
is limited to an arbitrary and capricious standard, which means
that what the agency does generally goes, unless their conduct
is really egregious. Should we establish some other standard
for reviews and give the courts more power, in effect, to
second-guess what this board or these privacy officers might do
or not do?
Mr. Gorton. Mr. Nadler, I have three points in answer to
your very good question.
First, in the two areas, really both relating to the wall
and on which we did express an opinion, that portion of the
PATRIOT Act met the tests that we had set out. That was number
one.
Number two, you all, in your wisdom, of course, passed the
PATRIOT Act with an expiration date.
Mr. Nadler. Part of it has an expiration date.
Mr. Gorton. At least as far as that part is concerned, you
have the ultimate power. The Justice Department, obviously, is
going to have to answer your questions, or you are going to
have to lie down and ignore a failure to do so. But that is
probably the greatest single power that you reserved to
yourself, to see to it that you as the Congress get----
Mr. Nadler. But the privacy officers and this board are not
going to have to the power to do this. What do we give them?
Mr. Gorton. We recommended the creation of a board that
could protect these rights. As Lee said, we have not gone into
all of the details as to where it should be. Some the Members
thought it ought to be in the Department of Justice. I think,
given your questions, you are probably inclined to believe that
it ought to be an independent agency or board.
Those are decisions for you all to make, as are the
decisions as to the degree of the review for it or the right of
an individual to sue outside of the system with respect to the
law.
Mr. Nadler. I am less concerned where we put it than what
powers they have, how independent it is, and how we can enforce
the executive branch to comply with the decisions it makes.
Mr. Gorton. It should be independent, and it should be
powerful enough so that it gets listened to.
Mr. Nadler. Thank you. Thank you, Mr. Chairman.
Mr. Cannon. The gentleman yields back.
I hope the panel and also the Members of the two Committees
will consider that, in dealing with these details, we may not
have enough information. We may need to be considering a
commission that will help us think through some of the details,
because I share the concerns of the gentleman from New York on
how we go about this.
The gentleman from Arizona, Mr. Flake, is recognized for 5
minutes.
Mr. Flake. I thank the Chairmen, both Mr. Chabot and Mr.
Cannon, for organizing this hearing and the witnesses for
coming.
I want to thank the 9/11 Commission for its particular
focus on secure sources of identification. That has been
something that I have been concerned about for a couple of
years. I introduced legislation last year, H.R. 3461, to
require States, if they want their State driver's license used
as a form of Federal identification, or identification for
Federal purposes, that there have to be some kind of standards
there. Because, as it stands, if a State like California
doesn't use the same kind of standards or uses lax standards,
it doesn't affect just the citizens of California, it affects
all of us, because it is used increasingly as the closest form
of a national ID as we have. When it is used for air travel and
other things, there is certainly a Federal nexus there.
We also have created more of a Federal nexus when we allow,
with the Help America Vote Act, an individual State to allow
them to use a driver's license as a form of identification to
register to vote. So there is a Federal nexus here, and I am
pleased with the Commission's focus on this.
I would just like to get your thoughts on it and how
quickly we ought to move to that. My bill specifically says if
a State wants its drivers' licenses used as a form of Federal
ID, it has to have some kind of standard.
You have also talked about standards for birth
certificates, because those are the sort of breeder documents
that are then used to secure these forms of ID. Can you give
some elaboration on those things? Mr. Hamilton?
Mr. Hamilton. Mr. Flake, thank you for the question.
I think we do suggest in our recommendations that there be
Federal standards applied to these identification documents,
birth certificates, driver's licenses and a lot of other
things. That has to be seen in a broader context, and the
context is that we need, we believe, a modern border
immigration system. You have to look at all the ways that
people get into the United States, and you need to stress
biometric exit and entry systems. You have got to give these
officials that check people coming into the country, whether it
is by land, sea or air, access to information with regard to
visitors and immigrants.
You have to have in your Intelligence Community the ability
to look at the indicators of terrorist travel. Terrorists have
to travel a lot. You have to develop an exchange of information
with other countries so that you can make, for example, a real-
time verification of passports, and you are going to have to
involve a lot more local and State officials.
Now, all of those things go together with what you are
talking about; and the secure identification of U.S. citizens
becomes very, very important in letting the right people in and
keeping the bad people out.
Mr. Flake. What I found was quite striking as well. In
Arizona, my 16-year-old son just went and got his driver's
license. His driver's license is good, I think, until he is age
65. He can get a driver's license theoretically, and he did,
for 44 years.
Now, somebody entering the country, for other States to do
this--gratefully, Arizona does this right. It doesn't anymore
offer a driver's license for a period longer than the
expiration of a visa. But only 11 States operate that way.
In other States that offer--and I don't know how many will
allow you to get a 44-year license, but if you come on a
student visa for 6 months or a year or 2 years, you can get a
license for up to 20 or 30 or perhaps even 44 years, and there
is your de facto ID. And we know that two of the terrorists on
9/11 had overstayed, yet they had licenses from States that
existed for longer than their visa.
Senator Gorton, do you feel that is an important part as
well, to ensure that a driver's license, because it is used as
a form of Federal ID, if you will, not be issued for a longer
period than the stay of the visa?
Mr. Gorton. Well, again, the Commission didn't judge that
specific idea. We did speak, as Lee has said, to birth
certificates and driver's licenses, because driver's licenses
are the most common form of identification and our
concentration was on having uniform standards for them. You are
talking about a form of uniform standards, at least.
We are concerned not so much about their length, though
that is an important consideration, as their validity, as
really identifying who a person is. That is where our
concentration lies.
Mr. Flake. Thank you.
Thank you, Mr. Chairman.
Mr. Cannon. The gentleman yields back.
I am quite certain the gentleman from Iowa, when he has the
opportunity to speak, is going to be concerned about that
issue, as I think many of the members of this panel are.
Mr. Scott, would you like to take 5 minutes?
Before you do so, let me just point out that the Ranking
Member has graciously agreed to defer in the event that others
have to leave. So we have not skipped over Mr. Watt, but he has
been gracious in letting others go first.
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Hamilton, with the extra powers for information
gathering, wiretapping, data mining and whatnot, did the
Commission limit these extra powers to terrorism-related
investigations? The PATRIOT Act was not limited to terrorism,
and some of us had some concerns about that. Had it been
confined to terrorism, it might not have been as controversial.
These extra powers may be extended to any kind of criminal
investigation.
Mr. Hamilton. Well, Mr. Scott, our focus was on terrorism,
and when we recommended, as we do in several places, an
expansion of Government power, we were limiting it to
terrorism.
Mr. Scott. Do I understand that you did not recommend a
national ID card?
Mr. Hamilton. We did not.
Mr. Scott. The no-fly lists have obviously been over-
inclusive from time to time, as the recent situation with
Senator Kennedy is just one of the most recent examples. How
many false positives should we be tolerating before we--I guess
the more people you stop and keep off the plane, the more
likely it is that one of them might actually be a terrorist.
What kind of tolerance should we have for these false
positives?
Mr. Gorton. Well, you know, our goal should be no false
positives. But one of the reasons that we were so interested in
this subject is that on 9/11 the FAA's no-fly list had 16 or 18
names on it. That is all. Part of our reason for a National
Intelligence Director and a National Counterterrorism Center,
was at the same time the State Department had a list of several
thousand people that it suspected to be terrorists and the FAA
didn't even know that the list existed. They learned about it
at one of our hearings earlier this year.
So we do think that there should be an integration of valid
terrorist information about the methods that these terrorists
used to attack the United States. But it is obviously wrong to,
you know, confuse one name for another. Just because there is
one bad guy named Edward Kennedy doesn't mean Senator Kennedy
should be kept off. We have got to be very careful, it seems to
me, to see to it that the lists are real lists that identify
real people and don't have a significant number of false
positives.
Mr. Scott. Thank you.
Secretary Marsh, a lot of the data mining information went
to the level of personalization of the lists and the
information but didn't really go to the kind of information
that we are talking about. What kind of information can be
obtained in this data mining? Are we talking about, I guess,
library records, travel records, credit, medical? Exactly what
are we talking about?
Mr. Marsh. The databases actually can cover a very broad
range of different subjects. They could cover travel, they
could cover finance, they can cover possibly health records, if
you get an exception.
The data mining is an accepted and very effective process.
It is not new. We did data mining with fingerprints and law
records years ago, but it is now so sophisticated because of
computerization and it can reach so far and it reaches across
boundaries and it can be international.
What we need are methodologies, and I think a number are
being developed, whereby we can confine those lists very
quickly and minimize what we have to have, and then anonymize,
so there is no disclosure of who you are looking at until you
reach the point.
Mr. Scott. One of the things we had--I am not sure what the
status of it is now--the FBI guidelines used to be that you
wouldn't gather information unless you were actually
investigating a specific crime or had some specific
investigation. You just wouldn't gather information.
Mr. Marsh. I believe that was in law enforcement, wasn't
it?
Mr. Scott. Well, are we mining this data just for
generalized----
Mr. Marsh. That which is done--defense criteria on data
mining is different than law enforcement. But in defense that
is done toward a specific objective, and inside the NSA you
will find that they are very specifically oriented. I think
there are 650 million intercepts a day that are filtered
through. But they are very specific; and they are looking at a
suspicious, threatening person and using a general pattern
search to try and find that person.
Mr. Cannon. Does the gentleman desire additional time?
Mr. Scott. Could I follow through on that, Mr. Chairman?
Mr. Cannon. Without objection, the gentleman is recognized
for an additional 2 minutes.
Mr. Scott. Thank you.
Well, are we looking after a specific person to track him
down in terms of travel and who he is contacting? Still, you
are looking at one specific person, not just going into a
database and seeing what pops out.
Mr. Marsh. Right. Correct.
Mr. Scott. So you mentioned in law enforcement we are
relegated to waiting until you are actually investigating a
crime. In this case, are you just gathering information?
Mr. Marsh. For intelligence purposes, yes.
Mr. Scott. Is this United States citizens?
Mr. Marsh. A United States citizen comes under a court
order.
Mr. Scott. So you have to have particularized suspicion.
Mr. Marsh. That is right.
Mr. Scott. And probable cause.
Mr. Marsh. All the rules change when you have a U.S.
person, which is a United States citizen, a permanent foreign
resident or a U.S. Corporation that is not foreign controlled.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Cannon. The gentleman yields back.
I guess we are at Mr. Forbes. Would you like to be
recognized for 5 minutes?
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Chairman, I would like to echo what you said earlier
about the privilege that we have to be with such a
distinguished panel and also to appreciate the comments of the
Ranking Member today.
We have had a number of hearings in different Committees,
and there have been some individuals who have run out to press
conferences or made comments in the Committees about why we
weren't just enacting all the recommendations without hearings.
I think the comment that said that before we go anywhere we
need to understand what the recommendations are and the
ramifications of those recommendations is so true, and I thank
you all for being here today and your patience in helping us do
just that.
Let me go to my fellow Virginian for a question. Mr. Marsh,
I would like to follow up on what Congressman Scott was saying.
The first question I would have is so many people today are
telling us that the only way we can have an adequate defense is
to do some sort of risk assessment, some sort of risk
assessment where we are concentrating our defenses, because we
just have so many vulnerable areas, so it would be impossible
to cover them all. Can we be effective in that risk assessment
if we are not doing an effective job with data mining?
Mr. Marsh. The panel concluded that data mining is an
absolutely essential tool for a counterterrorist program but
that data mining program must be formalized, it must be
established, it must be controlled, it must have procedures, it
must be audited, and, if you are dealing with U.S. citizens,
you must use the FISA court.
Mr. Forbes. Recently, we had a private citizen--that it was
determined through the use of open-source information that a
U.S. National Guardsman was plotting terrorist activities on
his fellow soldiers. This was, obviously, a very ingenious way
to find a terrorist before they could commit a terrorist act.
Could you tell us if the TAPAC recommendations limit data
mining for open source information?
Mr. Marsh. No. Not completely, no.
Mr. Forbes. They wouldn't.
One final thing. Do we have any idea what foreign countries
are doing right now with data mining and how they are utilizing
it? I am sure you studied that and analyzed that.
Mr. Marsh. There are significant private efforts offshore.
Some of their programs are more strict and stern than ours. I
believe the oldest is--I may be mistaken here, somebody help
me--is Sweden.
What you have touched on, Mr. Congressman, a concern that
exists in this community with this technology is that we have a
lead, and we must maintain that lead, and there are abilities
possibly by others to overtake us in that technological lead,
and staying--staying in that lead is absolutely essential.
One of the recommendations of our panel is research on data
mining that does not necessarily mean go do data mining but do
the research to find what you can do, what are the capabilities
you can achieve by doing it, simply in order to maintain a
supremacy and lead, which we think in this struggle is
absolutely essential.
Mr. Forbes. We found the same concern, as you know, with
biological weapons. Because we had stopped a lot of our
research on creating some of those weapons, so the counter to
that was we also had stopped our research on the defense of
those weapons. As you mentioned, this is a technological edge
that we could lose in a matter of months if we are not careful
in how we are handling that.
Mr. Marsh. It is my recollection that this very fine report
talks in terms of addressing these research programs to achieve
some of these ends, if I am not mistaken.
Mr. Hamilton. Yes, we address that in very general terms.
Mr. Forbes. Mr. Chairman, thank you very much. Thank you.
Mr. Cannon. The gentleman yields back.
I think that Mr. King is next in line. The Vice Chairman of
the Committee is going to be penultimate or next to
penultimate. But, Mr. King, you are recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman. Again, I thank you for
holding these hearings today and also Chairman Chabot.
I appreciate the testimony of the panelists. I know you put
a lot of hours and days into this endeavor and this interesting
report that brings some solid recommendations out, and I have
some questions about a number of those.
I reflect back, though, across some of the other questions
and testimony, and Congressman Flake made mention of the Help
America Vote Act. I would just point out there is not a
requirement for a picture identification to be presented at
this point. So there is an allowance there for a poll worker to
request identification, but not a requirement. So when it comes
to voting, we don't have any more credibility there than we
have sometimes getting into the United States. Both of those
things are important.
With the passport exception for the Western Hemisphere, one
can come into the United States from any Nation in the Western
Hemisphere, other than Cuba, alleging to be a United States
citizen, simply by making, and I believe the language,
statutory language, is a credible allegation of citizenship. If
it were not for that, I might still be in Jamaica, by the way,
and that is how I know that law. That might not be so bad. And
I hear your recommendations on tightening that up.
With regard to Congressman Flake's questions, I would also
add this point that I would associate myself with the remarks
of Congressman Hamilton with regard to the security. I direct
my first question to you, Congressman Hamilton--would you
consider a biometric Social Security card to be a national ID
card?
Mr. Hamilton. I don't think we tried to make those kind of
judgments. We on the Commission were no experts on this whole
field--and it is a difficult one--of biometric measures, and we
did not address that.
Mr. King. Thank you. I wanted to make just a few remarks on
the security of our borders and how we might tighten that up.
But I really would focus my interests instead, because I think
we have a gap in our focus here, on where these recommendations
of the Commission might go. Some of the statements that were
made and some of the language causes my curiosity to be piqued.
The failure to think creatively I recognize that, and I
agree with that. But we have a Commission recommendation to
bring this all under one leadership, one voice, and you looked
at MI-5 and stepped away from that because it was a higher
probability of violating privacy and individual liberty. So the
soaring rhetoric of--let me see, what was that word I was
looking for--the institutionalization of imagination, it
captures my imagination.
I would like to be able to institutionalize imagination. I
would like to be able to inspire that in all the people that
can think outside the box and think creatively, and I would
like to find a way to root out some of the linear thinkers
within our intelligence departments and replace them with
creative thinkers. And yet, if I were going to form an
organization that would be shaping group-think, I would want to
have one person at the top, all information underneath there. I
would want to have control of the budget and the hiring and
firing process, and I would just about bet you if you put me at
the top of that, I could create group-think within that
organization. I might even do it without wanting to do so.
So my concern is that we end up creating an organization
that does exactly what we are trying to avoid, and I direct my
question or request for a response for that remark to Ms.
O'Connor Kelly first.
Ms. O'Connor Kelly. Well, I would have to defer to the
experts on the 9/11 Commission, as I am not the expert on the
Intelligence Community.
Mr. King. You are the institutionalization of imagination
though, and I that is why I went to you.
Ms. O'Connor Kelly. Sure. Absolutely. And I think we were
quoting language from the report. I think there are so many
different ways we can create privacy oversight and privacy
values in the Federal Government. We can look not only at our
experience with the Department of Homeland Security and having
a Privacy Office within the ministry or the Department, we can
look internationally at the creation of privacy czars, privacy
commissioners, data protection officials throughout the world,
many of which sit as part of the Federal service but outside of
any Federal agency. We can certainly look at our own history
with privacy commissions in previous decades.
So I think that point is an excellent one. You can't
legislate creativity. That is precisely a very good point. But
you can create bodies that will be both self-analyzing and also
create oversight structures within and outside the Federal
Government that could hope to create the kind of value
structure that you are all talking about today in protecting
privacy and respecting individuality, while also achieving the
security mission.
Mr. King. Mr. Marsh, would you comment?
Mr. Marsh. Congressman, I think the real danger in your
bill, in our recommendations, is that they will go through some
sort of baptism of bureaucracy and they will become very, very
bureaucratic, and instead of doing the innovative, creative
things that they need to do. I think we need to avoid the
creation of a bureaucracy there, and that is going to depend on
the leadership. Because the nature of these types of programs
are regulatory, and my experience has been with regulatory
things you get into, actually, a very helpful and useful
bureaucracy, but I am not sure that is the goal you are driving
for here.
Mr. King. Mr. Chairman, could I ask unanimous consent for
an extra additional minute?
Mr. Cannon. Without objection, so ordered.
Mr. King. Thank you, Mr. Chairman.
I would just direct my question to Senator Gorton then. Did
you examine the successes, the historical successes of
intelligence, as you put these recommendations together?
Mr. Gorton. The answer to that question is, yes, of course
we have had successes in our intelligence during the course of
a 45-year Cold War. But I think I would really like to answer
your previous question, if I may.
We have had a decentralized system. We have had an FBI that
didn't talk to the CIA, and a CIA that didn't talk to the
Department of Defense intelligence agencies. Decentralization's
ultimate reward was 9/11. What we are trying to do is to cure
9/11. And this is not to say that there wasn't imagination. I
think there was a great deal of imagination on the part of the
FBI agents in Arizona. I think there was imagination on the
part of those who arrested Moussaoui. I think similar things
have taken place in the CIA. But, in many cases, they didn't
even get to the top of their own agencies, much less anyone in
authority, say, in the White House, who could get the benefit
of that imagination.
Our recommendations for a National Counterterrorism Center
and for the National Intelligence Director are so that there is
a focal point, someone who is entitled to get all of the
information, say, on counterterrorism that comes up from each
of these agencies, put that work together, task them to do
things to fill in gaps or to fill in holes, and have it there
before the National Security Council, before the policy centers
so they can act on it.
If you read our report through, I think you will join me in
saying we had a couple of presidents who had to be frustrated.
They just weren't getting the information that they needed from
this current stovepipe system where people were hugging onto
bits of information they got, rather than using them and
sharing them.
Mr. King. Did any agency get it right?
Mr. Cannon. Would the gentleman like an additional 2
minutes?
Mr. King. One would be plenty, Mr. Chairman.
Mr. Cannon. Without objection, so ordered.
Mr. King. Did any agency get it right?
Mr. Gorton. Well, if you say did any agency get it right in
a way that prevented 9/11, of course, the answer to that
question is an obvious no.
Did the FBI get it right when it prosecuted those who
perpetrated the first World Trade Center, yes, they did,
treating it as a law enforcement matter. But then there was
this wall. They couldn't talk to one another with their
intelligence people, and that clearly contributed to 9/11.
Mr. King. Thank you very much.
Mr. Hamilton. Mr. King, some agencies got it more right
than others. The CIA understood the threat of terrorism as well
as anybody. They spoke about it; and in 1998 the Director of
the CIA said, we have got a war going on here. The only problem
is, nobody paid any attention to him. Nobody even within the
CIA paid any attention to him, and the other intelligence
agencies didn't pay any attention to him.
If you want a competition of ideas, which your question
suggests, you have got to have a free flow of information, and
that is what we didn't have. If you want group-think, it is the
status quo that developed group-think. And what we are
suggesting, I believe, is more vitality, more information in
the system, which I think will bring about more competitive
analysis.
Everybody wants more competitive analysis in theory; not
everybody wants it in practice. But if you increase the flow of
information from foreign intelligence and defense intelligence
and homeland security intelligence and if you increase the flow
of information from the CIA and the NSA and the NGA and the NRO
and all of these other agencies that you have that now collect
intelligence but keep it to themselves, or at least they did
prior to 9/11, I think improvements have been made since 9/11,
but what we are trying to do is, to pick up one your words, is
to institutionalize all of this, to get more information
flowing through the system.
We are certainly not trying to put all of the power in the
National Intelligence Director so that that director controls
what becomes the intelligence product.
Mr. King. Thank you, Mr. Chairman.
Mr. Marsh. Mr. King, in reference to your earlier
question----
Mr. Cannon. Mr. Marsh, we have had a note from the C-SPAN
people. Many of you are not speaking closely enough into the
mikes. I think, Mr. Hamilton, you have been doing that, so I
didn't interrupt. If you would pull that mike closer to you.
That is much better.
Mr. Marsh. In order to make those sorts of regulatory
efforts effective, you need to place a burden on the most
senior officials of the Department--I am talking about the
Secretary--and you need to establish a role for the President
to have a responsibility, and then you need to have your senior
people come in here and respond to your Committee as a form of
oversight and as a form of legislative audit. Then I think you
will see the system will function much better.
Mr. King. Thank you.
Mr. Cannon. The gentleman yields back.
The gentleman from Florida, Mr. Feeney, is recognized for 5
minutes.
Mr. Feeney. Thank you, Mr. Chairman, for these hearings.
Mr. Marsh, along those lines, I have read the TAPAC report.
It is very well done. But the first seven of your 12
recommendations rely totally on the good will of the Secretary,
and it is only the executive branch and congressional oversight
that is addressed in your last five recommendations that will
make sure future secretaries in not just this but other
agencies will not just be dependent on goodwill. I would like
to get back to that in a minute.
But the other report that is fascinating is the 9/11
Report, and I really commend the entire Commission represented
here today by Senator Gorton and Congressman Hamilton. It is
not just the detail and the breadth and the extraordinary way
that you have addressed a host of wide-ranging issues, but it
also I think puts you at a new standard of literary work for
Government reports. It really is an animated way to deal with
the technological and historical issues that led up to 9/11 and
the terror we experienced on that day.
I have to tell you that I might be the only Member here
that in the midst of a hurricane had a flashlight out because I
couldn't put down the book. It is not Hemingway or Shakespeare,
but I think Arthur Conan Doyle would be proud of what you have
done.
Mr. Hamilton. Put it right up there with Harry Potter.
Mr. Feeney. Yes, and, unfortunately, I don't think you will
receive any of the commissions for that.
But, having said that, Congressman Scott talked about some
very interesting issues earlier, and he sort of drew the line
between citizens and noncitizens and the right to access, to
courts, et cetera. But it seems to me one of the things your
report touches on is the huge difference in kind, not degree,
but difference in kind between fighting crime and fighting
actual intelligence threats.
What we do with respect to bank robbers is put 99 percent
of our resources into capturing, prosecuting and then punishing
the bank robber. That model doesn't work when the next plane
could be full of biological, chemical or nuclear weapons. I
think that is something Americans have to understand. We are
dealing with a difference, not in degree, but of kind, in the
way that we fight these things.
Much has been made of the stovepipes, and Congressman
Hamilton just talked about the critical nature of the free flow
of information internationally and then across Federal agency
lines. I don't find much in your report on the recommendations,
and I heard very little emphasis on the free flow of
information to State and localities.
The last time the continental U.S. was attacked by a
serious foreign threat was 1812 when the British burned down
our Capitol. We now have for the first time since 1812 State
law enforcement, we have got sheriffs, we have got police
chiefs, we have got fire departments, we have the private
sector, people that run flight schools in Florida, for example,
that have got to be part of the information flow, both from the
local level up, because they are really your largest set of
eyes and ears about imminent threats.
Then, of course, the other way, you have to be able to
share information. Along those lines, a lot of States have
privacy protections that are, for example, in Florida, built
into our Constitution. We have an explicit privacy clause.
So I would like, Mr. Marsh, as you talk about data mining,
and also the Senator and the Congressman, to tell us what, if
anything, as we decide whether or not to set up a privacy
office in every single agency or every single sub-agency,
whether we decide to put it at one major level of the Federal
Government, whether that is inside the White House or whether
that is independent--those debates are obviously ongoing. But I
would like to have you tell us what we ought to focus on as we
use the 280 million sets of eyes and ears around the country in
sharing information up and down and how privacy can be
adversely impacted if we are not careful in that flow of
information stream as well.
Mr. Hamilton. Mr. Feeney, I will try a cut at it, and I am
sure others will want to contribute.
The first point I want to make is with regard to the link
you suggest between intelligence and law enforcement. That is a
very important link, and that is one of the reasons we didn't
go to an MI-5, incidentally.
The fellow who is out here investigating a crime with the
idea of prosecution in court will often pick up information
that is very valuable to the intelligence side of the FBI, and
vice versa. The person doing intelligence, looking at terrorist
activity, often will pick up information that is very vital to
the law enforcement side. So we think there is a natural
synergy or link, if you would, between the two sides of the
FBI.
The second point, we really did address quite frequently
the need to push information down to the State and local
officials. My recollection is somewhere in the report we say
18,000 local officials, police officials and others, are
enormously important assets for us in terms of counterterrorism
activity. And we did find, as I think maybe your question
suggested, that that flow of information was not nearly as good
as it ought to be. I think here, too, there have been
improvements, incidentally, but there is a long way to go.
I believe I am correct in saying that a major concern of
Director Mueller--I certainly don't want to try to speak for
him--is to try to improve that flow of information to agents in
the field; and in some cases, like New York City, I believe the
relationship between the FBI and the New York City police is
being worked out quite well.
But it is a huge advantage for us in counterterrorism to be
able to take advantage of the local law enforcement people, and
they simply must be brought into the information pool to a much
greater extent than has been true in the past.
Now, the third point I am not sure I caught with regard to
privacy. You wanted to know how it was adversely impacted by
all of this?
Mr. Feeney. Well, we have talked a lot about international
privacy protections, sharing amongst Federal agencies. But as
we go up and down from local, State and Federal and the other
way, what do we need to think about in terms of protecting
people's privacy there, too?
Mr. Hamilton. It is a pervasive problem, because if you
must, as we believe on the Commission, increase the flow of
information, that means the privacy concerns are greater, and
that is why we think there has to be some overall direction on
it within the executive branch and a lot of review, as some of
the other Members of the Committee have suggested, by courts
and the Congress.
Mr. Gorton. Mr. Chairman, may I comment on Mr. Feeney's
question?
Mr. Cannon. Absolutely. I think you will note I am fairly
strict on the time frame for asking questions but try to allow
some extension of that time, whereas we have not interrupted
the answers which we find and I think the rest of the Committee
finds fascinating. So, please, Mr. Gorton, go ahead.
Mr. Gorton. Mr. Feeney, I think you did have two separate
questions. There has been a traditional and very legitimate
objection on the part of local law enforcement officials all
across the country that communications are one way, that the
FBI wanted to get information from them, and rarely if ever
shared it with them. Director Mueller has made significant
attempts in this connection. The creation of a Joint Terrorism
Task Force in every major FBI office in the country has done
so.
Two weeks ago, I visited with the mayor of Seattle, the
chief of police, and the fire chief and found that my city had
done an excellent job in setting up and following some of our
recommendations on emergency response, setting up the single
command structure and the like, and asked him just that
question. And the answer to that question was, yes, it is
better, but it still has a long way to go. We are not getting
all of the information down that we need, but progress has been
made.
With respect to your other question on privacy, I think I
might refer you to another report. I am a member of the Markle
Foundation's study. In fact, with the permission of the
Chairman, I am going to leave here in about 30 minutes. I am
due at its meeting in Colorado this evening.
It has spent a tremendous amount of very constructive time
on data mining, the questions that Mr. Scott asked, on what can
be shared and how it ought to be shared and, very specifically
on this sharing, how will we bring these thousands of local law
enforcement agencies into this field with a very strong
protection of human rights. It has now had two reports. Its
second came out about 6 or 8 months ago. We referred to it in
our opening testimony here, and I think it will be of great
value to you in answering that question.
Mr. Marsh. Mr. Feeney, on the classification, you should be
aware there are two systems to the classification in our
country that involve national security and law enforcement. The
national security is Confidential, Secret, Top Secret,
Codeword. That is generally the result of an executive order
over on the defense side. Clearance for those are extremely
expensive, very hard to obtain. There is inability in our
Government to transfer those from Department to Department,
which is a major problem.
The second relates to the law enforcement type of issues
that Senator Gorton spoke about. I served for 4\1/2\ years on
the Gilmore Commission, which looked at local responders. The
single most frequent complaint that we received from first
responders from across the Nation was the failure to get
sensitive or classified information to them that they needed
for their security purposes. That has improved somewhat by a
recent order of the Department of Homeland Security but not
anywhere near where it needs to be.
This is another area, where some information comes down,
and it is marked ``law enforcement sensitive.'' Now, it is a
form of classification. Very frequently, law officers with law
enforcement sensitive information do not transfer that to other
people who need to know it inside the community. You have
broached a matter that is a major, major problem that is really
administrative but has enormous impacts in other ways of
operation.
Ms. O'Connor Kelly. Mr. Feeney, as the operational Privacy
Officer on the panel, I note that a major focus of our work
this past year has been addressing exactly the issue you have
raised of information sharing both across the Federal
Government but also with the State and local partners.
Obviously with the major homeland security efforts being
undertaken at the State level, we are being forced to share--
and we should be sharing--information with our State and local
homeland security directors. I see it as sort of a four-tiered
issue.
First of all, Homeland Security is made up of 22 different,
separate parts of agencies. So we had to first construct a
structure that allows information sharing within the
Department, which was actually a major undertaking given the
privacy act systems that existed in those agencies.
Then to share with other agencies--our partner agencies at
both Defense and Justice and other parts of the Federal service
to make those agencies more efficient in the use of
information--then to share with our State and local partners.
And finally to share with the private sector. With over 85
percent of our critical infrastructures in the hands of the
private sector in this country, we have a need to share and a
need to know information about their efforts.
And, of course, as has been pointed out, with the new rules
under critical infrastructure sharing and sensitive homeland
security information, we have hopefully heightened the ability
to share, but also created good rules around the sharing that
allows our employees to know what should be shared and what
should not be shared, particularly when it pertains to
individuals.
Mr. Feeney. Thank you.
Mr. Cannon. I would like to thank the very thoughtful Vice
Chairman of the Subcommittee for that thought-provoking
inquiry.
And now the Chair recognizes the very patient Ranking
Member of this Subcommittee for his opportunity to question for
5 minutes.
Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
And I think I will use my 5 minutes to follow up on some
lines of questioning that other people have already opened
before I go to one final overarching question that I would like
to pose. First, Mr. Nadler raised an interesting question about
if Congress can't get information from executive agencies, how
we could set up a board or commission oversight board, and how
they would get information to do the necessary job that we
would give them.
It occurred to me that Ms. Kelly might be in a good
position to respond to that. She is inside the Government,
inside the executive branch.
How would we structure, you think, a board, oversight
board, to do the kinds of things that the 9/11 Commission
report has suggested, and give them the kind of authority and
mechanisms to get the information that they need when we appear
to be having trouble getting that kind of information
ourselves? Can you share any light on that, either now or
subsequent to the hearing?
If you have got some thoughts now, I would love to hear
them.
Ms. O'Connor Kelly. Yes.
Mr. Watt. If you have follow-up thoughts I would love to
hear them, too.
Ms. O'Connor Kelly. Well, I have certainly been thinking
about this issue for many years, and people wiser than me have
been thinking about it for many decades.
So I think there are a number of ways--and I don't want to
preempt people in the Administration who may have thoughts on
this themselves--but I think you hit on the exact point that
the information on--perhaps it is human nature for people to
not want to air their dirty laundry in public.
And so to have a privacy office within the Federal agency,
although it is looked upon somewhat quizzically elsewhere in
the world, has actually been a very effective structure because
we are seen as a helpmate in the mission of the Department, but
also someone who has criticized from within in advance of
programs being launched. And perhaps that idea is being
enacted.
But we also do rest heavily on our external role. And we
have issued some critical reports of the Department, which we
will be sharing with you in our annual report to Congress,
which should be printed and finalized, hopefully, within a
matter of weeks.
Mr. Watt. I take it that what the Commission has
recommended goes beyond privacy officers or bodies within
agencies.
Ms. O'Connor Kelly. Right.
Mr. Watt. You may be suggesting that each agency that is
dealing in this arena needs a privacy officer. But what the
Commission, I think, is suggesting is something that--that is--
--
Ms. O'Connor Kelly. Overseeing.
Mr. Watt.--kind of overseeing all of this. And it may be a
more difficult problem to get agencies to give up the
information to that external body than even to an internal
body.
Ms. O'Connor Kelly. That may certainly be the case. And I
think for that question, we should look to the experience of
countries which already have operationalized independent data
protection authorities. And there is ample evidence of their
success, both in the European Union and also elsewhere in the
world. It certainly might be worth even actually talking to
some of those officials who lead those bodies.
There is an International Association of Data Protection
individuals, which we participate in and represent the United
States to the extent that we are welcomed in that body. They
have met with greater and lesser success in their own countries
in doing exactly what you have suggested, getting Federal
agencies to share information about their operations,
particularly when it might be damaging or embarrassing to the
agency--but perhaps a very necessary process.
Mr. Hamilton. Mr. Watt.
Mr. Watt. What I might suggest is ask--well.
Mr. Hamilton. Mr. Watt, the key requirement----
Mr. Watt. I would just say one other thing that Ms. Kelly
suggested, she maybe follow up with----
Ms. O'Connor Kelly. I would be happy to. Okay.
Mr. Watt.--some written suggestions in response to this,
because I am going to run out of time. That is what I am
worried about.
Mr. Hamilton. Well, the key requirement is that Government
agencies must be required to respond to the board. Now, the
experience of the 9/11 Commission is that we had to have the
subpoena power. We didn't use it very frequently. But if we had
not had it, our job would have been much, much more difficult.
And if this board is not able to require agencies to respond in
detail to your questions, it will be ineffective.
Mr. Watt. Okay.
Mr. Watt. Mr. Chairman, I guess I am going to have to ask
unanimous consent for a couple of extra minutes to get to the
next two questions that I have.
Mr. Cannon. Without objection, so ordered.
Mr. Watt. Let me go. We used the whole 5 minutes on that
one question.
I wanted to follow up on this national ID question that
several people have kind of skirted around. The Commission's
Report says--and I am quoting, I think--secure identification
should begin in the United States. The Federal Government
should set standards for the issuance of birth certificates and
sources of identification such as driver's licenses. And then
it goes on and says some other things.
Now, Representative Hamilton did a great job of telling us
what he is not suggesting, which is a national ID. What I am a
little unclear about, and what other people have raised a
number of questions about, is what, short of a national ID, is
the Commission suggesting here? Because it sounds like the only
way you can get to where you are talking about is to have some
kind of national identification system.
Mr. Cannon. If the gentleman would yield.
Could I just add to that, if you have Federal standards and
a free-flow information system between the States and the
Federal Government and law enforcement agencies and the Federal
agencies, what is the difference between standards and a
national ID?
Mr. Gorton. Very simply, everyone in the United States, or
almost everyone in the United States, is comfortable with the
idea that you have to have a driver's license in order to
drive. Fifty states and all of the other jurisdictions issue
driver's licenses. And they do so so that people can be
identified, you know, when they are driving and when they are
arrested.
What we are saying is that it is very important in the
fight for the struggle for national security that people be
able to be identified. We now have 50 or 54, whatever it is,
different systems for that. And we are simply saying, take
something that everyone accepts now and have it standardized in
a way that it really identifies the people who are holding onto
it. And we have also incidentally--and we have mentioned it in
passing--that we ought to sort of have--it would be a great
idea to have a standard form of birth certificates; because as
one of the Members up here said, almost everything stems from
that, you know, for Americans, all kinds of things you have to
get a copy of your birth certificate for. And it ought to be
something that is valid, that people can rely on.
We would like them to rely on driver's licenses. You don't
have to get a driver's license if you don't want one. But if
you want to drive, you do. Let's make it into--let's make it
into something that really does say, when I pulled my driver's
license out, you could be confident that this is really me and
not somebody else.
Mr. Cannon. Would the gentleman yield?
Mr. Watt. Yes.
Mr. Cannon. What I hear you saying, Senator Gorton, is that
you want a national ID, you want to get that through the back
door by using something that everybody already accepts. But
that is, I think you stated very clearly, that you want or you
think the Commission wants the national ability to identify
people and using an already accepted purpose. So if you want,
if you want to drive in America, you have to be part of a
federalized system of identification?
Mr. Gorton. I think there is a great deal of difference,
Mr. Chairman, between something that you voluntarily go out and
get and something that is mandated.
Mr. Watt. Well, you might--you might be--this might be a
semantic discussion. And, I mean, I think the discussion about
a national ID has been going back and forth for a number of
years. But it does seem to me that if you are suggesting a
standardized birth certificate, that is not optional. So for
newly born individuals, that is a national ID; for people who
obtain a driver's license, that is a national ID.
So you have left out people who have come into the United
States who weren't born here and who don't get a birth
certificate, or people who have opted not to get a driver's
license. But you are not very far have having a requirement
that you have some kind of national identification for those
people, too, I would think.
Mr. Hamilton. Well, I would----
Mr. Gorton. Mr. Watt, you have already got a national ID
You have one or the other. You just don't know whether it is
any good.
Mr. Hamilton. Mr. Watt, just to let you know our concern
here, all of these hijackers, except one, had U.S.
Identification. And what we are saying is that secure
identification is very, very important in terms of
counterterrorism.
And we--we did not endorse a national ID. We think there is
a distinction, as Senator Gorton has said, between Federal
standards and having a national ID. But do not be deceived here
with regard to the importance of identification. Keep in mind
that these hijackers were extremely skillful in being able to
find the gaps in our system. And we are trying to protect
against that as best we can.
Mr. Watt. And do let me be clear that I am not either
supporting or condemning a national identification system. All
I am trying to do is figure out what--what those options are
and be clear on what the Commission is suggesting. Because for
us to move from the onset that you have expressed to the
reality of what you have expressed requires our understanding
what you had in mind. And that is all I am trying to do.
Let me do one other thing, Mr. Chairman. And I don't really
think this question may be--well, anybody will want to answer--
but I think I have got to ask it because there is, it appears
to me, to be a real rush politically to act on the 9/11
Commission's Report and a real rush to--for security purposes
to act on.
And I guess the thing that I am wrestling with here in
light of all of the questions that have been raised in this
hearing is how we can proceed responsibly to get to a real good
product without giving the public the perception that we are
somehow dragging our feet and being picky and not paying
attention to details.
Did the Commission have any ideas about the timetable? I
mean, obviously, we are 3 years beyond 9/11. Did the Commission
have any ideas about the timetable for the implementation or
passage of whatever legislative initiatives are required to
implement the 9/11 Commission's recommendations?
Mr. Gorton. Most of the attention so far to our
recommendations has been to those two, or several that have to
do with the structure of our intelligence system, the national
intelligence director, the national counterterrorism center.
The former of those has been recommended by probably a dozen
commissions over years.
I have got--one of our people yesterday had--no, no,
meeting over in the Senate yesterday--he showed me a list of 48
commissions since 1947 that have talked about restructuring our
intelligence agencies none of which was successful.
It came from here, you know. The joint--the Joint
Intelligence Committees of the House and the Senate 2 years ago
made a recommendation that is at least similar to that.
Speaking for myself, I am inclined to hope that you do do
something before the election in that respect.
Mr. Watt. Can we do something on that front without doing
something on the fronts that we have been discussing here
today?
Mr. Gorton. Well, certainly you can.
Mr. Watt. I mean, is it advisable? I know the answer is we
can.
The question is, would it be advisable to do something on
that front without--without setting up these security measures
for individual liberties and privacy that we all know need to
be in place at the same time that the protections need to be in
place.
Mr. Gorton. We believe that the recommendations that relate
to the Committee, the subject of this Committee, are very, very
important, Mr. Watt. We wouldn't have included them if we
didn't. And we thought about them a great deal and dealt with
them advisedly.
I guess the other side of that coin is simply this. We know
those terrorist organizations are still out there. We know they
have declared war against the United States of America. We know
that, while either through good preparation or good fortune, in
the almost 3 years since 9/11 no other terrorist attack has
taken place in the United States. We also know that lots of
them have taken place other places in the world.
So figuratively we have, if not literally, out there in the
streets somewhere, is a bomb with a fuse and the fuse is lit.
And we have no idea whether that fuse goes off in 5 days, 5
weeks, 5 months or 5 years. But it is going to be awfully hard
to stop the blame game if it goes off when we have done
nothing.
Mr. Watt. Thank you, Mr. Chairman. You have been very
generous with your time. And I yield back.
Mr. Cannon. Thank you. I want to thank the Ranking Member
for some very insightful questions.
I was not clear when we came into this hearing how clear
you are from the Commission on the need for a national ID or a
system of national identification. I think that has become
very, very clear here.
In addition, I think the question about coming up with a
good product versus looking like we are dragging our feet is a
very insightful question. And my reaction to that is we need to
do some things. I am appreciative of the Administration. I am
thankful daily that we haven't had in America another serious
terrorist activity.
Although I was doing a cottage meeting last night and had a
very conservative person there who expressed, at some length
and with some eloquence, appreciation for that, but recognized
that we have terrorist groups in America that aren't associated
with al Qaeda, groups that are doing things that by any
definition are terrorist--and that includes some of our gang
members, some of our ethnic gang members. We have some very
serious problems to deal with. We have been very, very blessed.
Al Qaeda or violent Islam is not our only problem. It is
internal problems.
I just feel like we need to point out here--generally
speaking, I almost never preach from the podium here, but often
use this to ask questions. I was thinking about George
Washington, since his name came up a couple of times. He was
asked at one point what the purpose of the other body was. And
he had cup of very hot coffee. And he took the cup and poured
some in the saucer, swirled it around and then drank from the
saucer. And he said, the People's House, Congress, the House of
Representatives, is like a turbulent boiling, scalding cup of
coffee. And the Senate, by the way this is before the 17th
amendment--I am not sure it still holds--but the Senate is the
area where we cool it down and sip.
I feel like we have barely sniffed the coffee, let alone
gotten ready to cool it down or taste it here. So we have a
very long way to go, but some things are really remarkable in
our time.
In the first place, I look at Ms. O'Connor Kelly. We have
had a long and very productive discussion. I think she has done
a remarkably good job at what she has done. She represents
private industry bringing the most current state-of-the-art
understanding of technology into the Government. And Government
is much better because of that.
And so as you are looking at the questions, Representative
from Ohio--or Iowa, pardon me. As I am trying to go through
these complex issues, my dear friend Mr. King suggested
bureaucratization sets in. But Government is radically improved
by the interface between free enterprise and new technology and
our bureaucratic process.
But at the same time we are getting these little inputs
that make DHS a much more successful agency, we are
federalizing more and more issues. And we are doing it because
it is easier to deal with many of the issues that face us today
at a Federal level. And some of those are absolutely important
to be federalized.
The State of Utah just recently passed a spyware bill. So
my IT companies are thrilled with that bill. And I have to
admit, the other day when I was talking to one of them, I said
that I asked the governor to veto it. And the reason I asked
her to veto it--obviously not very successfully--is because
this is truly a Federal issue. You have to deal with that issue
federally. And if you don't do it that way, you have chaos in
our system. So we have this period of time where we are truly
challenged. But the other side, we are responding to those
challenges, sometimes appropriately, sometimes inappropriately
with federalization of issues.
And I am just deeply concerned that in a time of conflict,
that men of zeal without understanding, or people with zeal
without understanding, are going to assert that we need to do
things federally for which there is no alternative. There is
theoretically another way to deal with that.
And, Mr. Marsh, you spoke twice about anonymizers. Now I
think the original Web site that anonymized for people is
actually in my district. Very cool. This goes way back--by the
way--we are not claiming all the benefits of modern technology.
But we have great opportunities with--with technology. And if
we go down a path of federalization too quickly, we will end up
with remarkable problems.
I cannot drive through my major city, Provo, Utah, my most
central city, without being keenly aware that every stoplight
has a camera. I am no computer wonk, but I know the process to
be able to focus, with some artificial intelligence, the camera
on the driver and get a picture of the driver, and on the
license plate and get a picture of the license plate of every
car that goes through every intersection that has a stoplight
and a camera in that city.
That gives me the willies, and I think it gives Americans a
bit of pause. On the one hand, a young woman who was kidnapped
and the kidnapper was captured very quickly, in part by using
some of this technology. We do want to stop kidnappers. We do
want to stop terrorists.
But I just feel like here in this Subcommittee and in the
Constitution Subcommittee as well, we need to be looking at
these issues very carefully and drinking from that saucer and
not scalding our tonsils as we chug the coffee immediately.
I also just feel the need to point out that what happened
on 9/11 was tragic, and a great cost, but it was not entirely
unanticipated. I think perhaps the magnitude of it was
unanticipated. But when we set up the CIA and the FBI there was
a debate, and that debate centered on the core principles that
we have used to build all of our institutions in America, and
that is separation of powers. And while, you know, as we look
at that today, we need to be thinking in terms of the values
incorporated and what was a system that didn't work very well
and what we can do with technology today, which allows us to
bridge the gap and still maintain separate centers of power,
division of power.
If you read one of the most remarkable Founding Fathers,
Thomas Jefferson, he spoke over and over and over again about
taking power from the highest level of Government and shifting
or keeping everything down at the lowest level. And if you fly
over America today and you see the big squares; that is, the
particular application of Thomas Jefferson's vision of how to
organize society.
We did square townships so that towns could grow up in a
context, and those townships could have smaller units all the
way down to what we called wards, which were 100 families. And
his idea of Government was that you govern at the 100-family
level. And I believe the idea behind the concept of the well-
organized militia for the second amendment, was that people in
that 100-family unit would be able to assert police authority
within that group.
Now, that is a concept that is embedded in our very
geography in America, but which is not being considered, I
don't think, today as we are looking at global attacks. And yet
as I said earlier, all the attacks aren't global. Many of the
attacks we have are home grown, homemade. They are not even
foreign or different ethnicities from the bulk of the Northern
Europeans who settled America. They are among us today, not
appealing their sentences, because of the possibility of a
death penalty if they get a new trial, or if he gets a new
trial. So I am just--I am just deeply concerned about those
things.
I wanted to touch on another couple of points that you
made, Mr. Marsh.
You talked about a protocol or a culture of privacy. I
remember thinking as a kid, no one, no employee of the IRS
would ever give anyone information that the IRS collected. And
then we had two Presidents, one of each party, who appear to
have made even FBI raw data files available to people in the
press. With that culture destroyed fundamentally--and that is
not many people, if they have faith that their files are going
to be kept private--we have to rebuild that culture somehow.
Rebuilding that culture means going to people with technology
at the lowest level where they can be protected and anonymizers
are great possibilities. But you have other issues, like a
certified identification, which hasn't been mentioned I don't
think in any of these processes, which today is not used for
anything but to avoid that little pop-up on your screen that
says you are not a secure user. And you apparently can now pay
$49 to get that pop-up eliminated. But it doesn't do anything
for the issue of identification that we have been talking about
here today.
And then finally, I just want to point out that there is a
lot of vagueness in most Americans' thinking about what they
want out of privacy. And so I would like to just pause at one
of the problems, or weigh how to think about that.
If you saw the movie ``Enemy of the State'' with Will
Smith, you have an innocent citizen who has something stashed
in a bag that that then makes him the target of the vast
bureaucracies of the CIA. And the appalling thing is the
technology is all there. It was a very cool movie from that
point of view.
The likelihood of any of us being the subject of a hunt by
the CIA is almost nonexistent. But the premise of the film, if
you will recall, is a Congressman of integrity who wouldn't
vote in a certain way and therefore was murdered.
Now, I would like to think that all of my colleagues were
men of, A, integrity and, B, they have never done anything they
could be blackmailed with or that could be used to encourage
them to vote a different way. But in most issues in America
today, votes at the congressional level and the House of
Representatives and the other body, or in city council, tend to
be fairly narrow because we have hard choices. And the ability
of evil men to get information on decisionmakers at any level
of Government and thereby pervert decisions, that is what we
are trying to avoid here.
And so while driving, I am not worried when my license
plate is captured, my face is captured by a camera at an
intersection. But cumulatively in America, we need to be
concerned about that. Because if you can prove that a city
councilman was at an intersection near the house of a woman he
was purported to be having an affair with, there is something
wrong with that. It's important to the large process of how we
govern ourselves and how we get good men and women to perform
public functions without the threat of embarrassment when an
issue comes up that they need to exercise their judgment on.
Those are the areas at all levels of Government and in the
judiciary as well, where I think the issues we are dealing with
here are important and are worthy of being dealt with
thoughtfully and carefully over time.
And I suspect that this Subcommittee, perhaps, the
Constitution Subcommittee in addition, is going to have a lot
to say about how we at least approach that problem. And I think
that means a commission with people who are very thoughtful,
who have significant background, and who are people who are
willing to say we don't necessarily need to Federalize this
process. And if we do Federalize this process, it shouldn't
just be the damn Feds sucking information out of the local
folks. It ought to be the local folks who get something back.
And to do that you ought to have some kind of protection, maybe
an anonymizer. It may be a culture that existed at one time in
the Federal Government, I am not sure what it is. It is vital
to America and it is, I think, the cornerstone of what our
grandchildren are going to enjoy or suffer in the future.
So with that, are there any comments by anyone else on the
panel or additional comments that you on the panel would like
to make?
Thank you. I apologize for preaching, but we are adjourned.
[Whereupon, at 12:35 p.m., the Subcommittees were
adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of the Honorable Chris Cannon, a Representative in
Congress From the State of Utah, and Chairman, Subcommittee on
Commercial and Administrative Law
The Subcommittees will please come to order.
Before we formally start today's proceedings, Chairman Chabot and I
want to sincerely thank and recognize our colleagues on both
Subcommittees and on both sides of the aisle for taking time out of
their busy schedules to attend this important hearing. As many of you
know, August is typically when Members of Congress return to their
districts to catch up on constituent matters and spend time with their
families. Unfortunately, in these extraordinary times, however, we must
undertake extraordinary measures to deal with certain pressing issues.
It also goes without saying that we express our sincere gratitude
to our esteemed witnesses, each of whom reflect the greatest hallmarks
of public service. We appreciate your contributions to our
deliberations today.
The title of today's hearing--Oversight Hearing on Privacy and
Civil Liberties in the Hands of the Government Post-September 11, 2001:
Recommendations of the 9/11 Commission and the U.S. Department of
Defense Technology and Privacy Advisory Committee (which we'll refer to
as ``TAPAC'')--clearly explains why we're here.
As many of you know, the 9/11 Commission filed its final report
last month. As some of you may not know, however, is that the report
includes several recommendations intended to protect our citizens'
privacy and civil liberties. In addition, it recommends that the
federal government set standards for the issuance of birth certificates
and sources of identification, such as drivers' licenses, to promote
secure identification information. While most media headlines have
emphasized the Commission's anti-terrorism proposals, I believe the
privacy and civil liberties recommendations are among those most
critical to our nation's future and which will form part of the focus
of our hearing.
Today's proceedings will also focus on certain recommendations that
the TAPAC Committee made regarding safeguarding informational privacy.
By way of background, TAPAC was established by Secretary Rumsfeld as an
independent, bipartisan committee to examine the privacy ramifications
presented by data mining activities by the Defense Department. I think
we all agree that Secretary Rumsfeld is to be commended for taking this
initiative and for ensuring that TAPAC's membership included some of
our nation's most respected experts in the fields of constitutional and
privacy law. I am informed that among the many luminaries who testified
before TAPAC was our colleague from New York (Mr. Nadler).
Advances in technology have increasingly facilitated the collection
and dissemination of personally identifiable information, but have also
correspondingly increased the potential for misuse of such information.
As the recently renamed Government Accountability Office observed,
``These advances bring substantial federal information benefits as well
as increasing responsibilities and concerns.'' Interestingly, TAPAC,
over the course of its deliberations, determined that as the Defense
Department was not alone in its conduct of data mining activities, it
was necessary for it to address this issue through a series of
Government-wide recommendations.
The purpose of today's hearing is to examine the validity of these
recommendations and those of the 9/11 Commission that relate to privacy
and civil liberties and to determine whether they warrant a legislative
response. We would especially appreciate any guidance from our
witnesses about how the Congress, in crafting legislation, can best
protect our citizens' privacy without compromising legitimate law
enforcement and terrorism detection efforts. And, as our witnesses
know, it has been 30 years since a privacy commission was established
as part of the Privacy Act of 1974. I would be interested in having our
witnesses comment on whether now is the time to re-establish a privacy
commission that would specifically focus on government privacy issues,
especially given all the technological developments that have occurred
since the commission filed its final report in 1977 and the current
state of our nation's security concerns.
I should also note that both my Subcommittee--the Subcommittee on
Commercial and Administrative Law--and Chairman Chabot's Subcommittee--
the Constitution Subcommittee--have played a major role in with respect
to protecting personal privacy and civil liberties in this era of
heightened security under the leadership and guidance of Jim
Sensenbrenner, the Chairman of the Judiciary Committee. As both the 9/
11 Commission Report and TAPAC Report concluded, it is no easy task to
balance the competing goals of keeping our nation secure and protecting
the privacy rights of our nation's citizens. I believe that our
respective Subcommittees and the Judiciary Committee are uniquely and
best suited to study and resolve these issues.
Our accomplishments to date include the establishment of the first
statutorily created privacy office in a federal agency, namely the
Department of Homeland Security. We have also spearheaded the creation
of a similar office in the Justice Department, which is contained in
legislation now pending in the Senate. In addition, both my
Subcommittee and the Constitution Subcommittee have considered and
supported legislation requiring a federal agency to prepare a privacy
impact analysis for proposed and final rules and to include this
analysis in the notice for public comment issued in conjunction with
the publication of such rules.
I will conclude my opening remarks with a quote from one of our
founding fathers. As I think you'll agree, Mr. Hamilton's observations
and warnings are as meaningful today as they were when he wrote them
more than two hundred years ago:
``Safety from external danger is the most powerful director of
national conduct. Even the ardent love of liberty will, after a time,
give way to its dictates. The violent destruction of life and property
incident to war, the continual effort and alarm attendant on a state of
continual danger, will compel nations the most attached to liberty to
resort for repose and security to institutions which have a tendency to
destroy their civil and political rights. To be more safe, they at
length become willing to run the risk of being less free.''
----------
Prepared Statement of the Honorable Steve Chabot, a Representative in
Congress From the State of Ohio, and Chairman, Subcommittee on the
Constitution
I'd like to thank Chairman Cannon for holding this important
hearing today.
September 11, 2001, changed our world. It changed the way in which
we view terrorism and the way in which we, as a country, must protect
ourselves.
Since that tragic day, Congress acted quickly to protect the
country from future terrorist attacks. For example, through the Patriot
Act, we provided our law enforcement officials with enhanced
investigative tools to prevent the planning of future attacks, and we
authorized the creation of the Department of Homeland Security to
better coordinate activities within our country to protect against the
future threat of terrorism.
In taking action, we have been mindful of the protections afforded
by our Constitution and our need to protect them as we protect our
country. In the Patriot Act, we included protective measures, such as
the sunset provisions. When authorizing the Department of Homeland
Security, we ensured that a privacy officer position was established to
examine the implications of the agency's rules and regulations on
privacy and to address any issues that may result.
Over the last 20 months, the National Commission on Terrorist
Attacks Upon the United States (9/11 Commission) has investigated the
circumstances and events leading up to and on September 11.
In their report, the 9/11 Commission identified deficiencies within
the federal government and made recommendations, including
recommendations to safeguard privacy, to better protect the American
public. While we must move expeditiously to make our country safer, we
take care to do so in a thoughtful and Constitutional manner.
I look forward to discussing the Commission's recommendations with
our witnesses today and determining what Congress can do to better
protect the privacy of our citizens.
As we move forward, it is important to remember that having
effective anti-terrorism measures does not necessarily comprise the
protections afforded by our Constitution, as one is not the enemy of
the other. The enemy is terrorism.
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