Secret Watchlists: Don’t Ask, Because Uncle Sam Won’t Tell
by Gavin Baker, 8/8/2011
Starting last Friday, the Department of Homeland Security (DHS) is operating a massive new database of personal information: names, birthdates, photographs, biometrics, and more. The information comes from the Federal Bureau of Investigation's Terrorist Screening Database, the accuracy of which has been widely criticized. Scary stuff, since being listed in the database can mean nearly-endless hassles any time you try to board a flight or cross a border.
But if you want to know if you're in the database, you'll be out of luck. A proposed rule by DHS would keep the database secret by exempting it from nearly every provision of the Privacy Act. Because the proposal challenges the fundamental tenets of government accountability and transparency, OMB Watch joined comments opposing the proposed rule, which were filed today by the Electronic Privacy Information Center (EPIC) and other groups.
Congress passed the Privacy Act in 1974 to give effect to some of the most important principles of transparency. Under the law, you have the right to know what information the government has about you, to know how they've used the information, and to correct the information if it's wrong. Those principles are essential to keeping government accountable, and they should be preserved.
The Privacy Act does allow agencies to create certain exemptions: in particular, for information about law enforcement investigations. The law enforcement exemptions are intended to ensure the integrity of investigations while they are ongoing. But in its proposed rule, DHS not only claims those exemptions, it takes them to the extreme. Under the pretense of preventing interference in investigations, DHS claims a blanket exemption from the Privacy Act rights for all the information in the database, forever.
DHS' approach twists the purpose of the Privacy Act exemptions almost beyond recognition. Exemptions should be limited to the time when they're needed, and no longer. But the proposed exemptions would never expire, even if the subjects in the database aren't under active investigation. This isn't necessary to protect the integrity of investigations, and it invites abuses. As our comment to DHS notes, "the notion of an investigation that is ongoing in perpetuity and without completion would be absurd."
The proposal does state that DHS would be able to waive the exemptions "on a case by case basis." While this may sound like a reasonable approach, it would radically undermine the right to know. In fact, it would turn the right on its head. DHS' proposal would create a strong presumption that you don't have a right to know, and give DHS the sole discretion to decide
In our comments to DHS, we suggest a more targeted approach that would better respect the presumption of openness by limiting exemptions to the situations where they're actually necessary:
Rather than claiming blanket exemptions, the DHS could promulgate rules that would require notification only after an active investigation had been concluded, or with sensitive information, such as the identity of confidential informants, redacted prior to release.
We strongly believe that the government should take prudent actions to prevent and prosecute terrorism. But we also believe that the government can, and should, respect our rights in doing so. DHS should revise its proposed rule to restore the transparency that Americans deserve.