Who has the information you need?

Several laws restrict agency access to and use of information

The founding fathers and the lawmakers who followed in their footsteps regularly have expressed their concern about the information the government gathers about the nation's citizens, particularly how agencies share and exploit it for investigative purposes.
This list summarizes some of the laws and regulations that affect data sharing:

  • The Fourth Amendment prevents intrusive searches and seizures on the basis of a statistical profile alone, but it does not apply to watch lists.

  • The Fourteenth Amendment guarantees equal protection under the law and restricts activities such as profiling.

  • Title III of the Omnibus Crime Control Act of 1968 defines the rules for obtaining wiretap orders.

  • The Electronic Communications Privacy Act of 1986 sets additional wiretapping controls.

  • The Foreign Intelligence Surveillance Act of 1978 regulates electronic surveillance for intelligence purposes and established the secret Foreign Intelligence Surveillance Court.

  • The Communications Assistance to Law Enforcement Act of 1994 sets rules for surveillance of wireless phones and digital communications.

  • The Privacy Act of 1974 regulates how the government collects and maintains records about citizens, resident aliens and corporations.

  • The Computer Matching Act of 1988, an amendment to the Privacy Act, imposes restrictions on federal agencies' comparisons of databases containing information about individuals.

  • The Right to Financial Privacy Act of 1978 requires the government to get a subpoena, search warrant or a customer's permission before obtaining customer bank records.

  • The Bank Secrecy Act of 1982 limits disclosure of financial records.

  • The Cable Act of 1984 restricts disclosure of cable company records.

  • The Video Privacy Protection Act of 1988 forbids video rental companies from disclosing customer information.

  • The Federal Education Records and Privacy Act of 1974 restricts access to education records.

  • Title VI of the Civil Rights Act of 1964 restricts airline passenger profiling.
  • The USA Patriot Act of 2001 modifies provisions of several laws to facilitate investigations and information sharing within the government.

  • The Attorney General's Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations set limits on how law enforcement officials can access private databases and other sources.

  • State law: At least 45 states, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands have adopted laws restricting law enforcement surveillance.
  • 'The larger problem is that state and local law enforcement does not operate on the stratified security classification levels that federal intelligence agencies have,' Justice's Richard H. Ward III says.

    Henrik G. DeGyor

    Homeland security effort sets stage for wide-ranging data exchange

    Around the office, around the city, around the state, around the nation, around the globe'agencies have struggled to share information since, well, the country's founding. Computers haven't removed the hurdles, just changed the nature of the challenge.

    But following the Sept. 11 terrorist attacks, the government gave renewed emphasis to the sharing of information among the many agencies pitching in on domestic defense. Agencies had to exchange data'and they had to do so quickly, electronically and securely.

    Data exchange poses thorny issues for government, policywise, technically and culturally.

    In this and two subsequent articles, GCN analyzes how the government is revamping policies to encourage cooperation among agencies, how agencies are grappling with the technological challenges, and how culture shapes the collaborative environment. This first installment of the three-part series is an overview of the difficulties confronting officials.

    For starters, forging an effective Homeland Security Department out of 170,000 employees and 22 agencies calls for an unprecedented overhaul of data-sharing policies and systems.

    The complexity of the effort is magnified during wartime, as the military sectors of the intelligence community have worked to hone their data-sharing capabilities.

    For example, the Defense Intelligence Agency last year established the Joint Intelligence Task Force'Combating Terrorism to improve analysis and production in worldwide counterterrorist projects. Task force analysts produce daily terror threat assessments for the Defense Department.

    All together now

    In crafting an information-sharing policy, Homeland Security faces several challenges. It must tie together its own disparate agencies in a unified network, and it must coordinate its relations with other federal intelligence and law enforcement agencies charged with gathering, analyzing and disseminating information about terrorism. Perhaps the new department's most difficult task will be to create networks that share sensitive information with state and local agencies without jeopardizing intelligence sources.

    Richard H. Ward III, deputy director of the Justice Department's Bureau of Justice Assistance, cited the policy barriers to in-formation sharing as the most daunting problems in the field, even more challenging than technology issues.

    'Since Sept. 11, we have been focused on breaking the logjam that state, local and federal agencies face on information sharing,' Ward said. 'There is a ton of information out there. The question is, who will share it with whom? The problem is that we have to bring down the policy barriers. There are legal barriers, for example. In certain states, agencies can't share driver's license information outside the state boundaries.'

    Barriers exist between states and among various levels of government.

    Officials must get employees from many levels and branches of government to work together. Finding the systems to accomplish this mission is a far less daunting task. 'The technology will do what we ask it to do. Policy issues and funding are the problems,' he said.

    Ward said the attacks on the World Trade Center and Pentagon happened 'in large measure due to a lack of information flow. We are beginning to overcome that. The better the information flow, the less likely the terrorist attacks.'

    Ward also cited conflicts between the missions of law enforcement and intelligence agencies as an issue. 'Their missions are somewhat different,' he said. 'But the larger problem is that state and local law enforcement does not operate on the stratified security classification levels that federal intelligence agencies have.'

    Building an information sharing apparatus will be difficult, said James A. Lewis, senior fellow and director of technology policy at the Center for Strategic and International Studies in Washington, because the necessary policies have not been drafted.

    Lewis identified three data-sharing challenges the federal government faces:
    • Providing classified terrorism information to state and local authorities without compromising sources and collection methods

    • Coordinating the fragmented methods of collecting information domestically

    • Managing the flood of information from domestic intelligence gathering.

    International intelligence gathering, compared to domestic efforts, is well-organized in the federal government, with teams focused on problems and funneling information into a sophisticated analytical operation, Lewis said.

    The FBI is not adapted for domestic intelligence gathering because of its focus on law enforcement, Lewis said. 'People don't join the FBI to become intelligence analysts.'

    On a similar note, Charles Pe'a, director of defense policy at the Cato Institute in Washington, said: 'The fact of the matter is that creating the Homeland Security Department did not solve the information-sharing problem. You still have two other big bureaucracies, the CIA and FBI, providing intelligence and analysis.'

    After Sept. 11, 2001, Congress thought that the need to improve terrorism information-sharing methods was so pressing that it wrote the responsibility for the task into the law creating Homeland Security.

    But soon after the department began work in late January, Bush announced the formation of a new interagency organization, the Terrorist Threat Information Center. In the weeks since the announcement, TTIC has emerged as an organization strongly influenced by the CIA.

    The center, slated to open May 1, will have representatives from the CIA's Counterterrorism Center, the FBI's Counterterrorism Division, Homeland Security and other agencies. It will be located at CIA headquarters and its director, 23-year agency veteran John Brennan, will report to CIA director George Tenet.

    Savvy move

    'It was a pretty skillful effort by CIA to keep their lead role in intelligence,' Lewis said.

    The center's creation prompted criticism from Congress. Sen. Susan Collins (R-Maine), chairwoman of the Senate Governmental Affairs Committee, raised questions about how the new organization would streamline and consolidate intelligence analysis.

    At a hearing this winter, she displayed a complex chart with lines linking all antiterrorism organizations and said, 'Including the integration center does not make the picture any less complex; it simply adds one more box.'

    In the April 28 GCN, Part 2 will describe the technology of data sharing. Part 3, on May 5, will detail the cultural barriers.

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