Thursday, December 13, 2012

The National Counterterrorism Center Wants Your Info

The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation.

Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited. Data about Americans "reasonably believed to constitute terrorism information" may be permanently retained.
The changes also allow databases of U.S. civilian information to be given to foreign governments for analysis of their own. In effect, U.S. and foreign governments would be using the information to look for clues that people might commit future crimes.

"It's breathtaking" in its scope, said a former senior administration official familiar with the White House debate.

Counterterrorism officials say they will be circumspect with the data. "The guidelines provide rigorous oversight to protect the information that we have, for authorized and narrow purposes," said Alexander Joel, Civil Liberties Protection Officer for the Office of the Director of National Intelligence, the parent agency for the National Counterterrorism Center.

The Fourth Amendment of the Constitution says that searches of "persons, houses, papers and effects" shouldn't be conducted without "probable cause" that a crime has been committed. But that doesn't cover records the government creates in the normal course of business with citizens.

Congress specifically sought to prevent government agents from rifling through government files indiscriminately when it passed the Federal Privacy Act in 1974. The act prohibits government agencies from sharing data with each other for purposes that aren't "compatible" with the reason the data were originally collected.

But the Federal Privacy Act allows agencies to exempt themselves from many requirements by placing notices in the Federal Register, the government's daily publication of proposed rules. In practice, these privacy-act notices are rarely contested by government watchdogs or members of the public. "All you have to do is publish a notice in the Federal Register and you can do whatever you want," says Robert Gellman, a privacy consultant who advises agencies on how to comply with the Privacy Act.
 (Underline added). Three points come to mind right now (I'm sure I'll think of others later):

First, one of the purposes of the privacy act was to prevent the use of government information in a partisan manner--i.e.., using the information against political and ideological opponents to the current administration or a powerful politician or official. Yet, this in fact consolidates this information where it can easily be used for such purposes.

Two, what constitutes "terrorism information." There have been past suggestions that the current Administration broadly considers many conservatives (e.g.,  returning veterans, gun owners, pro-life supporters) to be potential terrorists. (See here and here). Although, to be fair, the DHS released a similar report about certain left wing "extremists" and some believe that the reaction to the DHS memo was overblown (See this story). Nevertheless, it would be easy for an Administration to name certain ideological opponents to be terrorist sympathizers. (See point no. 1, above).

Three, it is disturbing that this information will be shared with foreign nations. Does this mean that a foreign country can now peruse U.S. tax records or other financial records to try and catch people cheating on taxes in that country? Can they access submissions to the Department of Energy, Department of Agriculture, Food and Drug Administration, FCC, etc., for confidential trade information or technology information that could assist businesses and industries in those countries?

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