Senate Judiciary Committee to focus on government data-mining privacy issues

The incoming chairman of the Senate Judiciary Committee used his first hearing of the 110th Congress to call for greater congressional oversight of the administration's data collection activities.

Sen. Patrick Leahy (D-Vt.) said he would reintroduce today the Federal Agency Data-Mining Reporting Act, which would require agencies to inform Congress of their data-mining programs. The senator and several witnesses testifying at Wednesday's hearing said that unregulated government databases pose a threat to citizens' privacy without necessarily improving national security.

'I think Congress is overdue in taking stock of government databases that increasingly are collecting and sifting more and more information about each and every American,' Leahy said.

He said the Bush administration has repeatedly ignored privacy laws and bypassed Congress in development of programs such as the Transportation Security Administration's Secure Flight system to identify travelers who pose security risks.

The hearing and the proposed legislation used a loose definition of the term data mining, applying it to any type of database search.

Watch lists already are being used to screen airline passengers, and other agencies are developing more sophisticated systems to aggregate and analyze data in an effort to spot activities or relationships that could help identify potential terrorists. Critics say this can be an invasion of privacy and can violate constitutional guards against unreasonable search and seizure.

Jim Harper, director of information policy studies at the CATO Institute, and Leslie Harris, executive director of the Center for Democracy and Technology, both said that the first question to be addressed is whether data mining is a worthwhile tool.

'We need to ask what risk does it address, and how well does it address that risk?' Harper said.

He said this has not been addressed and argued that data mining is effective in identifying terrorists because of the number of false positives.

'Proponents of data mining need to make that affirmative case,' he said. 'It is not enough to merely attack opponents.'

'Data mining in the abstract is neither good nor bad,' Harris said. But, 'the executive branch is bewitched with the technology' without knowing whether it is effective. Congress should require that agencies demonstrate a system's effectiveness before allowing it to be deployed. 'We don't even need to raise privacy questions until we see whether or not it's working.'

Kim A. Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, said that data mining can be made to work and that development should not be hindered.

'You can't burden technology development by first requiring that they prove efficacy,' he said.

One area of agreement was that adequate congressional oversight is needed.

'You must pierce the veil of secrecy,' Harris said.

That is the purpose of the Data-Mining Reporting Act, which was introduced in 2005, but which died in the Judiciary Committee. It would require agencies developing and using the technology to report annually to Congress on their goals and progress, and explain how privacy would be protected.

James J. Carafano of the Heritage Foundation cautioned that technology progresses more quickly than government policy and cautioned against trying to regulate it too closely. He said what is needed is a set of fundamental principles that include checks and balances rather than regulation of a specific tool.

Former Congressman Robert Barr, chairman of Patriots to Restore Checks and Balances, said the question of ownership of data must be addressed. The lack of clear lines of ownership has allowed the administration to assert its right to examine personal mail and track phone calls, he said.

'Who owns this data?' he said. 'There has never been a comprehensive look at who owns the data.'

'That will be one of the questions we will ask the attorney general when he comes in next week,' Leahy said.

About the Author

William Jackson is a Maryland-based freelance writer.

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