Government program to collect data needs oversight

By Scott Forsyth The Daily Record Newswire Last month I attended a fundraiser for a local charity. At it, Betsy, a good conservative friend, buttonholed me and asked if I was still associated with "that civil liberties group." When I said yes, she gave me an earful about a "new" government program that was going to collect and retain for five years personal information about her. She was horrified and wanted to know what the ACLU was going to do about the program. Mind you, she did not agree with many of the activities of the ACLU but this program needed to be stopped. I was not familiar with the program to which Betsy referred so I answered in generalities. If the program overstepped the boundaries of the law, the ACLU would litigate. If the program was legal, the ACLU would utilize the Freedom of Information Law to find out how the government was operating the program. Curious, in the week following the fundraiser, I did some research and discovered such a program exists and Betsy's horror was justified. The program is housed at the National Counterterrorism Center. Created in 2004, the NCTC serves "as the primary organization for analyzing and integrating all intelligence possessed" by the United States pertaining to international terrorism. It also serves "as the central and shared knowledge bank" on terrorists. Any agency "authorized to conduct counterterrorism activities may request information" from the NCTC. 50 U.S.C. § 404O(d). Bottom line, the NCTC is supposed to connect the dots, a failing of the intelligence community that led to 9/11. These are fine purposes. The concerns arise over how the NCTC acquires information, the content of the information, and what it does with the information. The NCTC may ask an "an owner of a dataset" "that may contain terrorism information" to search the dataset by terms "consisting of terrorism data points" determined by the NCTC or may ask the owner just to turnover the dataset in part or in whole. The owner must be a federal agency but the information in the dataset may come from outside the federal government, such as local police or a telecommunications company. As you might expect, the searches and turnovers of datasets reveal information about "United States persons," like Betsy. The NCTC may analyze this information to determine if it relates to the existence of international terrorist groups, threats posed by such groups, communications by such groups, and associates of such groups. If the NCTC has a "reasonable, articulable suspicion" that the information about the United States person is so related, the NCTC may retain the information permanently, use it, and disseminate it to other agencies. What if the information about the United States person is not so related? The guidelines of the NCTC used to call for the unrelated information to be purged within 180 days. In March 2012, the attorney general revised the guidelines. Unrelated information acquired from a search by another agency still must be purged "promptly." However, unrelated information acquired during a turnover of a dataset "may be retained and continually assessed" for up to five years. The attorney general assures us the mining of the information will be done "solely to identify information that is reasonably believed to constitute terrorism information." He undercuts the assurance, however, by stating the NCTC may conduct searches of the information that do not utilize terrorism data points. The NCTC may turnover the unrelated information about United States persons to other intelligence and law enforcement agencies at all levels of government, to enable the agencies to mine the information for the same "limited purpose." Even foreign governments may receive the information. Back in 2004, Congress did establish the Privacy and Civil Liberties Board. The PCLOB is supposed to ensure that the executive implements laws and regulations, like the guidelines, in a manner consistent with our civil liberties. The only problem is that the PCLOB only exists on paper. Just last month the Senate Judiciary Committee sent to the Senate the names of five nominees to the board. Neither President Bush nor President Obama pushed for quicker action. An independent eye on their intelligence gathering activities was not in their best interests. What would I tell Betsy today? Urge your Congressmen and women to exercise greater oversight over the intelligence gathering function of government. And consider joining the ACLU. It will work hard to protect your privacy. ---------- Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Published: Fri, Jun 8, 2012