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The Legal Twists in Securing a Homeland

You have to question the wisdom of legislation that encourages private citizens to share information they've collected with our federal government.  Offer them immunity from civil prosecution for their information and you're asking for a witch hunt.  Prevent the press from gaining access to the information and source materials, and you've got a formula for framing innocent citizens and a prescription for a cover-up. 

When the federal government decides to enlist the support of the private sector in hunting down information on our neighbors, we all have to worry.

No, I'm not talking about the House Un-American Activities Committee; I'm talking about the Homeland Security Act.  A copy of the House version is available on the Select Committee for Homeland Security Web site.
On Tuesday, November 19, 2002, the U.S. Senate gave approval to the Homeland Security Act, officially following the lead of the House that occurred on November 13, 2002.  The President's reaction was emphatic: "this bill includes the major components of my proposal -- providing for intelligence analysis and infrastructure protection, strengthening our borders, improving the use of science and technology to counter weapons of mass destruction, and creating a comprehensive response and recovery division. . . . I look forward to signing this important legislation."

When signed by the President on Monday November 25, the Act created a new cabinet-level agency that merges agencies, changes responsibilities among agencies, and reorganizes the federal bureaucracy in ways yet to be seen.  Pervasive among its mandates is the way in which the Act fundamentally changes the way that the government obtains, shares, and stores information.

Already critics have expressed concern.

William Safire blasted the Act on privacy grounds, because "[e]very purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend -- all these transactions and communications will go into what the Defense Department describes as 'a virtual, centralized grand database."

Writing for MSNBC, Declan McCullagh has criticized the Cyber Security Enhancement Act (CSEA) inserted into the Homeland Security Act shortly before it was passed by the House as it "expands the ability of police to conduct Internet or telephone eavesdropping without first obtaining a court order, and offers Internet providers more latitude to disclose information to police."  He goes on to note that hackers could face life terms for computer intrusions that "recklessly put others' lives at risk."

Jailing of hackers who put lives at risk is the least of our worries.  When the federal government decides to enlist the support of the private sector in hunting down information on our neighbors, we all have to worry.

The Act Encourages Private Participation in Governmental Information Gathering

Undoubtedly stinging from the barrage of criticism regarding the lack of intelligence sharing following the 9/11 attacks, Congress purposefully sought to involve the private sector in data gathering.  A quick review of some of the salient sections discloses just how far Congress is willing to go to obtain this information:

Section 102 of the Act requires the Secretary to coordinate with private sector individuals and entities.  A special assistant will create and manage private advisory councils, composed of industry members and associations.

Section 201 of the Act establishes the Directorate for Information Analysis and Infrastructure Protection and Access to Information.  Among other things, the undersecretary is given the responsibility to "access, receive, and analyze" information from law enforcement, government agencies and "private sector entities."

Further, the undersecretary is obligated to integrate information collected from private sector entities for the purposes of identifying and assessing terrorist threats.  Indeed, under Section 201(d)(13), the undersecretary can request information from the private sector and under subsection (14) is ordered to mine the data that is collected; and turn this information over to law enforcement under subsection (17).

So, what is to prevent some zealous individual or watchdog group from turning in truckloads of data on ordinary citizens?  While I trust my neighbors and my ISP, I don't know if you should trust yours. 

Disclosures Without Civil Consequences Invites Trouble

In addition to seeking the complicity of our friends and neighbors in intelligence gathering, the Act actually immunizes those individuals and businesses from civil liability for what they turn over to the agency. 

Section 214(A)(1)(C) provides that the information "shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any Federal, State or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith."

In other words, to encourage citizenry to come forward with potentially useful information on terrorists, all false accusations, vile lies and other libelous statements will be privileged.  The information cannot be used in a subsequent civil suit.  The only thing that prevents liability for framing a neighbor or business competitor is the absence of "good faith" -- whatever that is.

Information Submitted Is Shielded From FOIA Requests

The Act also exempts information from being disclosed under legitimate FOIA requests.  For example, if the data has been labeled confidential when given to the agency, private citizens, journalists and others will not be allowed to review it.  It will remain confidential, even if the government decides to take action based upon that information.

Section 214 (a)(1) states: "notwithstanding any other provision of law, critical infrastructure information (including the identity of the submitting person or entity) that is voluntarily submitted to a covered Federal agency. . . shall be exempt from disclosure under the Freedom of Information Act . . ."  Further, the Act prohibits disclosures authorized under state law.

This is absurd.  This section means that no law requiring disclosure matters when it comes to voluntarily submitted information.  The Society of Professional Journalists argues that the homeland security bill, "blows an enormous hole in the federal Freedom of Information Act. . .The bill would result in large amounts of information that is now open to be closed."

We've gone from a policy supporting open government to one of secrecy in the name of homeland security. 

Legitimate Information Gathering or a Witch Hunt?

Since 9/11 our civil liberties have been under a constant attack.  Each day, the government bureaucracy has taken additional aggressive steps under the authority of homeland security that trample protections that our Constitution has provided.  The Homeland Security Act is a further erosion of these protections.

It is a frightening scenario when a government asks its citizens to spy on one another; when it protects the spy and his data from inspection; and when it acts on the data without letting anyone see it.  It promotes the worst of what our government has been in the past. 

In the months to come, regulations will be passed implementing the Act.  Let's hope that they get it right:  "No Senator McCarthy, we are not terrorists."

Michael S. Overing teaches Internet Law at the USC Annenberg School for Communication. He is a practicing attorney in Los Angeles County, California. He frequently assists individuals and businesses with Internet and media-related legal issues.