- The Washington Times - Monday, June 5, 2006

A little-noticed proposal from the Senate intelligence committee would exempt federal agencies from important provisions of the Privacy Act in the name of the war on terrorism.

The committee’s annual authorization bill, which was sent to the Senate last month after a unanimous vote, would initiate a three-year pilot program, during which U.S. intelligence agencies would be able to access personal information about Americans held by other federal departments or agencies if it is thought to be relevant to counterterrorism or counterproliferation.

In the wake of revelations about the administration’s use of data mining and warrantless surveillance of telephone and Internet communications in pursuit of the nation’s terrorist enemies, the provision could cause a furor.

“If this is enacted, the Privacy Act will look like Swiss cheese,” American Civil Liberties Union (ACLU) legislative counsel Tim Sparapani said.

Mr. Sparapani said he was not reassured by the role that the law envisages for the president’s Privacy and Civil Liberties Oversight Board, which would monitor the program and report to Congress as the three-year sunset approached.

“The board is stacked four [Republicans] to one [Democrat],” he said.

“It is not truly independent” because it is inside the president’s own office, which puts it “under the thumb of the president and his advisers.”

The board’s chairwoman, Texas lawyer Carol Dinkins, did not respond to a request for comment yesterday afternoon.

A Democratic committee staffer defended the proposal, saying the exemptions were “narrowly drawn to address the kinds of problems we found during our September 11 inquiry” when U.S. agencies failed to pool information about known al Qaeda militants, who were, thus, able to slip into the country.

At the moment, the 1974 Privacy Act broadly prohibits a federal government entity that has collected information about Americans from using it for any purpose other than that for which it was collected. Information typically cannot be passed on to other agencies or departments without the person’s permission.

These restrictions “could prevent the sharing of intelligence information within the executive branch,” said the committee report accompanying the intelligence authorization bill, designated S. 3237.

The report goes on to say that an “Information Sharing Working Group,” made up of representatives from U.S. intelligence and law-enforcement agencies and from the Departments of Defense and Homeland Security, had recommended changes to the Privacy Act restrictions on personal-information sharing in 2004.

The committee included similar provisions in its authorization bill last year, but that legislation died after an anonymous hold — apparently from at least one Republican senator angered by Democrat-authored provisions on detention and interrogation — prevented it from reaching the Senate floor.

Though the Privacy Act created 12 exceptions to the restriction on data sharing — including for information used “to support a civil or criminal law-enforcement activity under certain proscribed circumstances” — the committee report says there is no such exemption for intelligence activities.

Section 310 of the committee’s new bill creates one, exempting all U.S. intelligence agencies from data-sharing restrictions in cases in which the information “is relevant to a lawful and authorized foreign intelligence or counterintelligence activity.” If the information does not “pertain to an identifiable individual,” then the director of national intelligence or one his deputies has to approve the sharing.

Under the provision, intelligence agencies also can ask for Privacy Act-covered records from nonintelligence agencies — and be entitled to them — if the information relates to international terrorism or proliferation.


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