Report of the Technology and Privacy Advisory Committee

140 Pages·2004·3.46 MB·English

ii SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM
SAFEGUARDING PRIVACY
IN THE FIGHT
AGAINST TERRORISM
The Report of the Technology and Privacy Advisory Committee
MARCH 2004
Report of the Technology and Privacy Advisory Committee 121
ii SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM
Report of the Technology and Privacy Advisory Committee iii
Technology and Privacy
Advisory Committee
Newton N. Minow
Chairman
Floyd Abrams
Zoë Baird
Griffin Bell
Gerhard Casper
William T. Coleman, Jr.
Lloyd N. Cutler
John O. Marsh, Jr.
Lisa A. Davis
Executive Director and Designated Federal Official
Fred H. Cate
Reporter
iv SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM
CONTENTS
Executive Summary vii
Acknowledgments xv
Introduction 1
TAPAC’s Creation and Charge 1
Government Data Mining 2
New Challenges to an Outdated Regulatory Structure 5
Security and Liberty 7
The New Terrorist Threat 11
The Threat from Within 11
The Suicidal Threat 11
The Threat of Weapons of Mass Destruction 11
The Terrorist Infrastructure 12
The New Threat 12
Empowering Our Nation’s Defenders 12
TIA 15
Early Descriptions of TIA 15
Early Public and Congressional Reaction to TIA 16
May 20, 2003 DARPA Report 17
Congressional Response 18
Inspector General’s Report 18
Understanding the TIA Controversy 18
Informational Privacy and Its Protection from Intrusion by the Government 21
The Meaning of “Privacy” 21
Constitutional Protections 21
The Fourth Amendment 22
Protection Against Government Disclosure of Personal Matters 25
Protection Against Unlawful Discrimination 25
Other Protections for Informational Privacy in the Public Sector 25
The Privacy Act of 1974 25
Sectoral Protections 26
Electronic Surveillance 27
Intelligence Gathering 28
Government Privacy Policies 29
Non-U.S. Privacy Protections and Principles 31
Summary 32
Report of the Technology and Privacy Advisory Committee v
Privacy Risks Presented by Government Data Mining 33
Digital Information and the Privacy Debate 33
Chilling Effect and Other Surveillance Risks 35
Data Aggregation Risks 36
Data Inaccuracy Risks 37
Data Errors 37
Data Integration 37
Individual Identification 38
False Positives 39
Mission Creep 39
Data Processing Risks 40
Disclosure 40
Data Misuse 40
Data Transfer 40
Data Retention 41
Security 42
Summary 42
Conclusions and Recommendations 43
TIA and the Secretary’s Questions to TAPAC 43
Recommendations Concerning DOD Data Mining 45
Data Mining Based on Particularized Suspicion 46
Foreign Intelligence Data Mining 47
Federal Government Employees 47
Publicly Available Data 47
Other Data Mining Involving U.S. Persons 47
Recommendations Concerning Government Data Mining 56
Conclusion 61
Separate Statement of Floyd Abrams 63
Separate Statement of William T. Coleman, Jr. 67
Appendices
A Biographies of Technology and Privacy Advisory Committee Members and Staff 93
B TAPAC Witnesses 97
C Bibliography 99
Notes 103
Figures
Summary of TAPAC Recommendations xiii
DOD Data Mining Activities 3
Other Government Data Mining Activities 4
Early DARPA TIA Slide 15
Data Mining Checklist 54
Impact of TAPAC Recommendations on Government Data Mining 60
List of Abbreviations and Defined Terms 91
vi SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM
EXECUTIVE SUMMARY
TAPAC’S CREATION AND CHARGE
The United States faces, in the words of British developed within [the Department of Defense]
Prime Minister Tony Blair, “a new and deadly DOD is carried out in accordance with U.S. law
virus.”1 That virus is “terrorism, whose intent to and American values related to privacy.”4*
inflict destruction is unconstrained by human
The decision to create TAPAC was prompted by
feeling and whose capacity to inflict it is enlarged
the escalating debate over the Terrorism Informa-
by technology.”2
tion Awareness (“TIA”) program.† TIA had been
As the murderous attacks of September 11 pain- created by the Defense Advanced Research Projects
fully demonstrated, this new threat is unlike Agency (“DARPA”) in 2002 as a tool to “become
anything the nation has faced before. The much more efficient and more clever in the ways
combination of coordinated, well-financed ter- we find new sources of data, mine information
rorists, willing to sacrifice their lives, potentially from the new and old, generate information,
armed with weapons of mass destruction, capable make it available for analysis, convert it to
of operating within our own borders poses knowledge, and create actionable options.”5
extraordinary risks to our security, as well as to
TIA sparked controversy in Congress and the
our constitutional freedoms, which could all too
press, due in large part to the threat it was per-
easily be compromised in the fight against this
ceived as posing to informational privacy. On
new and deadly terrorist threat.
September 25, 2003, Congress terminated funding
To help guard against this, Secretary of Defense for the program with the exception of “process-
Donald Rumsfeld appointed the Technology and ing, analysis, and collaboration tools for counter-
Privacy Advisory Committee (“TAPAC”) in terrorism foreign intelligence,” specified in a
February 2003 to examine the use of “advanced classified annex to the Act. These tools may be
information technologies to identify terrorists used only in connection with “lawful military
before they act.”3 Secretary Rumsfeld charged the operations of the United States conducted out-
committee with developing safeguards “to ensure side the United States” or “lawful foreign intel-
that the application of this or any like technology ligence activities conducted wholly overseas, or
* U.S. laws apply to surveillance, searches, and seizures of personally identifiable information conducted or authorized by government
officials within the United States. Those laws apply outside of the United States only if the surveillance, search, or seizure involves a
U.S. citizen (although not necessarily a permanent resident alien).
This report focuses exclusively on the privacy issues posed by U.S. government data mining programs under U.S. law to U.S.
persons, which are defined under U.S. law as U.S. citizens and permanent resident aliens. It does not address data mining concerning
federal government employees in connection with their employment.
† When first announced, the program was entitled “Total Information Awareness.” The title was changed to “Terrorism Information
Awareness” in May 2003.
Report of the Technology and Privacy Advisory Committee vii
wholly against non-United States citizens.”6 This TAPAC’S CONCLUSIONS
language makes clear that TIA-like activities may
After many public hearings, numerous back-
be continuing.
ground briefings, and extensive research, TAPAC
The Scope of government Data Mining has reached four broad conclusions:
TIA was not unique in its potential for data TIA was a flawed effort to achieve worthwhile
mining.* TAPAC is aware of many other programs ends. It was flawed by its perceived insensitivity to
in use or under development both within DOD critical privacy issues, the manner in which it was
and elsewhere in the government that make presented to the public, and the lack of clarity and
similar uses of personal information concern- consistency with which it was described. DARPA
ing U.S. persons to detect and deter terrorist stumbled badly in its handling of TIA, for which
activities, including: the agency has paid a significant price in terms
of its credibility in Congress and with the public.
• DOD programs to determine whether data
This comes at a time when DARPA’s historically
mining can be used to identify individuals
creative and ambitious research capacity is more
who pose a threat to U.S. forces abroad
necessary than ever. By maintaining its focus on
imaginative, far-sighted research, at the same time
• the intelligence community’s Advanced Re-
that it takes account of informational privacy
search and Development Activity center, based
concerns, DARPA should rapidly regain its bear-
in the National Security Agency, to conduct
ings. It is in the best interests of the nation for it
“advanced research and development related
to do so.
to extracting intelligence from, and provid-
ing security for, information transmitted or Data mining is a vital tool in the fight against
manipulated by electronic means”7 terrorism, but when used in connection with per-
sonal data concerning U.S. persons, data mining
• the Computer-Assisted Passenger Prescreening
can present significant privacy issues. Data min-
System in the Department of Homeland
ing tools, like most technologies, are inherently
Security (“DHS”)
neutral: they can be used for good or ill. However,
• the Treasury Department’s Financial Crimes when those tools are used by the government to
Enforcement Network scrutinize personally identifiable data concerning
U.S. persons who have done nothing to warrant
• federally mandated “Know Your Customer” rules
suspicion, if they are conducted without an
adequate predicate they run the risk of becoming
• the “MATRIX” (Multistate Anti-Terrorism
the 21st-century equivalent of general searches,
Information Exchange) system to link law
which the authors of the Bill of Rights were so
enforcement records with other government
concerned to protect against.
and private-sector databases in eight states
and DHS
To be certain, data mining has many valuable
and lawful uses in both the private and public
• Congress’ mandate in the Homeland Security
sectors. In many settings it may prove less intru-
Act that DHS “establish and utilize . . . a secure
sive to privacy than other techniques for guard-
communications and information technology
ing against terrorist threats. Moreover, the same
infrastructure, including data mining and other
technologies that make data mining feasible can
advanced analytical tools,” to “access, receive,
be used to reduce the amount of personally
and analyze data detect and identify threats
identifiable data necessary, facilitate data mining
of terrorism against the United States”8
*We define “data mining” to mean: searches of one or more electronic databases of information concerning U.S. persons, by or on
behalf of an agency or employee of the government.
viii SAFEGUARDING PRIVACY IN THE FIGHT AGAINST TERRORISM