[Congressional Record Volume 152, Number 61 (Wednesday, May 17, 2006)]
[Senate]
[Pages S4701-S4703]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. AKAKA (for himself and Mr. Lieberman):
  S. 2827. A bill to amend the Homeland Security Act of 2002 to clarify 
the investigative authorities of the privacy officer of the Department 
of Homeland Security, and for other purposes; to the Committee on 
Homeland Security and Governmental Affairs.
  Mr. AKAKA. Mr. President, I rise today to introduce the Privacy 
Officer With Enhanced Rights Act of 2006, POWER Act. I am pleased to be 
joined by Senator Lieberman, the Ranking Member of the Homeland 
Security and Governmental Affairs Committee, in introducing this 
important legislation, which is a companion bill to H.R. 3041. The 
POWER Act will strengthen the authority of the Department of Homeland 
Security, DHS, Chief Privacy Officer, CPO, and will provide a much 
needed check on government power.
  Americans have an expectation that their personal privacy will not be 
invaded and that their government will not misuse its powers. Democracy 
is founded on the principle that the people are the ultimate source of 
the Government's powers. Recent events validate the suspicions of our 
Nation's Founders against concentrating power into the hands of the few 
or in granting authority to those who are not accountable for how power 
is utilized. We need to consider the effects of intelligence and 
information gathering now that new government powers threaten to erode 
our most cherished freedoms and technological advances appear to 
outpace our ability to protect personal information.
  In response to the terrorist attacks of 9/11, new law enforcement 
strategies

[[Page S4702]]

were created and information sharing between government agencies 
increased substantially. DHS was established to face new challenges and 
address new threats. However, we were concerned that the unprecedented 
size and reach of the new department could intrude on the values that 
our nation cherishes most dearly. We wanted DHS to accomplish its vital 
mission, but we had to make sure that it was not at the cost of our 
liberty.
  Times of crisis and unexpected trials do not excuse curtailment of 
our citizens' fundamental liberties, which is why the DHS CPO was 
created. The mission of the CPO is to ensure that the loss of the 
freedoms that define this country would not be sacrificed for increased 
vigilance against our adversaries. Although I voted against the 
Homeland Security Act, I was pleased to work with my colleagues to 
establish the CPO.
  The DHS CPO has three primary responsibilities: (1) assuring that new 
technologies and information gathering methods do not erode personal 
privacy; (2) evaluating the privacy impact of new government programs; 
and (3) investigating privacy complaints.
  However, the CPO's powers have proved to be inadequate. The major 
problem is that the CPO lacks subpoena power and, therefore, cannot 
fully investigate privacy violations. Instead, the CPO must rely on 
voluntary submissions of information in order to conduct investigations 
which significantly weakens the office. We all remember the news 
accounts about how the CPO's requests for documents in her 
investigation of the Transportation Security Administration's, TSA, 
transfer of passenger data from a major commercial air carrier to the 
Defense Department were rebuffed repeatedly. Our bill will go a long 
way to ensure that such situations will not happen again.
  We are also concerned by the fact that the CPO cannot communicate 
directly with Congress, but instead, must report through DHS senior 
leadership. Similar to the Inspector General, the CPO can often be put 
at odds with those subject to investigation, so the authority to report 
directly to Congress and deliver unaltered findings is critical.
  The POWER Act will address these shortcomings by providing the CPO 
with the power to: access all records deemed necessary to do the job; 
undertake any privacy investigation that is appropriate for the office; 
subpoena documents from the private sector when necessary to fulfill 
the CPO's statutory mandate; and obtain sworn testimony.
  To provide independence for this position, the CPO will submit 
reports directly to Congress regarding the performance of his or her 
duties, without any prior comment or amendment by the DHS Secretary. In 
addition, our bill would protect the CPO from retaliation by mandating 
that the CPO cannot be removed from office without notifying the 
President and Congress of the reasons for removal.
  With concerns over the development of new data mining activities at 
the Department and the potential use of commercial data by TSA, it is 
essential now more than ever that the DHS CPO have the tools and 
authority to protect the personal information of all Americans. I urge 
my colleagues to support this bill and ask unanimous consent that the 
text of the bill and a letter of support from the American Civil 
Liberties Union be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 2827

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Privacy Officer With 
     Enhanced Rights Act of 2006'' or the ``POWER Act of 2006''.

     SEC. 2. AUTHORITIES OF THE PRIVACY OFFICER OF THE DEPARTMENT 
                   OF HOMELAND SECURITY.

       Section 222 of the Homeland Security Act of 2002 (6 U.S.C. 
     142) is amended--
       (1) by inserting ``(a) Appointment and Responsibilities.--
     '' before ``The Secretary''; and
       (2) by adding at the end the following:
       ``(b) Authority To Investigate.--
       ``(1) In general.--The senior official appointed under 
     subsection (a) may--
       ``(A) have access to all records, reports, audits, reviews, 
     documents, papers, recommendations, and other materials 
     available to the Department that relate to programs and 
     operations with respect to the responsibilities of the senior 
     official under this section;
       ``(B) make such investigations and reports relating to the 
     administration of the programs and operations of the 
     Department that are necessary or desirable as determined by 
     that senior official;
       ``(C) require by subpoena the production, by any person 
     other than a Federal agency, of all information, documents, 
     reports, answers, records, accounts, papers, and other data 
     and documentary evidence necessary to performance of the 
     responsibilities of the senior official under this section; 
     and
       ``(D) administer to or take from any person an oath, 
     affirmation, or affidavit, whenever necessary to performance 
     of the responsibilities of the senior official under this 
     section.
       ``(2) Enforcement of subpoenas.--Any subpoena issued under 
     paragraph (1)(C) shall, in the case of contumacy or refusal 
     to obey, be enforceable by order of any appropriate United 
     States district court.
       ``(3) Effect of oaths.--Any oath, affirmation, or affidavit 
     administered or taken under paragraph (1)(D) by or before an 
     employee of the Privacy Office designated for that purpose by 
     the senior official appointed under subsection (a) shall have 
     the same force and effect as if administered or taken by or 
     before an officer having a seal of office.
       ``(c) Supervision.--
       ``(1) In general.--The senior official appointed under 
     subsection (a) shall report to, and be under the general 
     supervision of the Secretary.
       ``(2) Notification to congress.--If the Secretary removes 
     the senior official appointed under subsection (a) or 
     transfers that senior official to another position or 
     location within the Department, the Secretary shall--
       ``(A) promptly submit a written notification of the removal 
     or transfer to Houses of Congress; and
       ``(B) include in any such notification the reasons for the 
     removal or transfer.
       ``(d) Reports by Senior Official to Congress.--The senior 
     official appointed under subsection (a) shall submit reports 
     directly to the Congress regarding performance of the 
     responsibilities of the senior official under this section, 
     without any prior comment or amendment by the Secretary, 
     Deputy Secretary, or any other officer or employee of the 
     Department or the Office of Management and Budget.''.
                                  ____



                               American Civil Liberties Union,

                                     Washington, DC, May 17, 2006.
       Dear Senators Akaka and Lieberman: The American Civil 
     Liberties Union commends you for introducing the Privacy 
     Officer With Enhanced Rights Act (POWER Act). This 
     legislation and its companion bill in the House, H.R. 3041, 
     are an important step towards ensuring that the Department of 
     Homeland Security's Privacy Officer has all the tools needed 
     to carry out the mission Congress envisioned for the office 
     when it created the Department of Homeland Security 
     (``DHS''). The POWER Act will allow the Privacy Officer to 
     better protect the privacy rights of all Americans by 
     providing important oversight of DHS, which handles extensive 
     amounts of sensitive personal information on Americans.
       The original Congressional intention of the DHS Privacy 
     Officer's authority has not yet been achieved. The Homeland 
     Security Act of 2002 mandated the creation of a senior 
     official to assume responsibility for DHS privacy policies. 
     Specifically, this official is to assure that new 
     technologies do not erode the personal privacy of Americans, 
     evaluate new proposals concerning the use of personal data, 
     assure that DHS is in full compliance with the Privacy Act of 
     1974, and to report to Congress on an annual basis any 
     activities that impact privacy including ``complaints of 
     privacy violations, implementation of the Privacy Act of 
     1974, internal controls, and other matters.''
       Congress, however, failed to endow this position with the 
     necessary investigative powers necessary to fulfill these 
     duties. Currently, the Privacy Officer must rely on voluntary 
     submission of information to conduct investigations. For 
     example, when the Privacy Officer attempted to investigate 
     the disclosure of JetBlue passenger information by the 
     Transportation Security Administration to the Department of 
     Defense, its requests for information were repeatedly 
     rebuffed preventing a comprehensive investigation. The 
     shortcomings of this process prevent the Privacy Officer from 
     being an effective advocate for the privacy rights of 
     Americans.
       The POWER Act addresses these problems by providing the 
     Privacy Officer with the tools and independence necessary to 
     conduct investigations and thereby fulfill the duties charged 
     to the position by Congress in 2002. This legislation 
     empowers the Privacy Officer to access all records deemed 
     necessary, undertake any investigation deemed appropriate, 
     subpoena documents, and obtain sworn testimony. This 
     legislation also directs the Privacy Officer to submit 
     reports directly to Congress without prior amendment by other 
     Department officials, helping to protect the position from 
     internal censorship.
       The POWER Act is an important piece of legislation to help 
     ensure that the privacy rights of Americans are not being 
     violated by their own government by providing crucial 
     internal oversight. We commend you for introducing this 
     important piece of legislation, the Privacy Officer With 
     Enhanced

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     Rights Act, and pledge to work with you to ensure its 
     passage.
           Sincerely,
     Caroline Fredrickson,
       Director.
     Timothy Sparapani,
       Legislative Counsel.
                                 ______