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By Jane Black In wartime, privacy and civil liberties are usually among the casualties. During the Civil War, Abraham Lincoln suspended habeas corpus, the right of prisoners to petition their case before a judge. Woodrow Wilson approved the arrest of pacifists during World War I. And Franklin D. Roosevelt interned thousands of Japanese Americans in World War II. All three arguably made the wrong decision. But all three also reversed those excesses when the conflicts ended.
In the wake of the terrorist attacks of September 11 -- and with the U.S. invasion of Iraq now in full force -- the balance is once again shifting toward security at the expense of privacy. The USA Patriot Act, passed just six weeks after the terrorist attacks, gave law enforcement sweeping surveillance powers and eliminated checks that empowered the courts to ensure such powers weren't abused.
Since then, the Justice Dept. has ramped up its use of "emergency foreign intelligence warrants," which let the U.S. Attorney General issue secret surveillance warrants that are valid for 72 hours before they receive any review by the Foreign Intelligence Surveillance Court. Attorney General John Ashcroft has personally signed 170 emergency warrants, three times the number authorized over the previous 23 years. Not satisfied, Justice has drafted a new bill, dubbed Patriot Act II, to further expand the government's wiretapping powers and roll back the Freedom of Information Act -- the law that gives the press a window into the innermost workings of government.
TRAVEL DATABASE. The question is whether, as in the past, these sweeping powers will be rolled back once the threat of war and terrorism recedes. The danger -- heightened by the fact that many of the new methods involve subtle and unobtrusive technological snooping -- is that these measures will become too embedded in the fabric of law enforcement for Bush to act.
"I can imagine the provisions of the Patriot Act eventually being repealed," says Marc Rotenberg, executive director of the Electronic Privacy Information Center (EPIC), a Washington (D.C.) advocacy group. "But it's more difficult to imagine the circumstances under which technologies and systems of government control will be dismantled."
That possibility should give every citizen pause, considering that not a few of the technologies the Bush Administration still wants to implement would routinely monitor not just suspected terrorists and criminals, but all Americans. Congress has balked in a couple of instances, scuttling Ashcroft's TIPS plan, which would have enlisted truckers, cable installers, janitors, and others to inform on their fellow citizens (see BW Online, 7/25/02, "Some TIPS for John Ashcroft "). And Congress also has put on hold the Defense Dept.'s plan to build a Total Information Awareness (TIA) program that would combine every American's bank records, tax filings, driver's-license information, credit-card purchases, medical data, and phone and e-mail records into one giant, centralized database that could be combed for indications of suspicious activity.
BARRICADES NEEDED. Undeterred, the Administration is now planning an upgrade of the Computer Assisted Passenger Prescreening System (CAPPS), which has been in place since 1996, to a new version, known as CAPPS II, that would be overseen by the Transportation Safety Administration (TSA). The goal is to build a central database of travelers that could warn airlines and law-enforcement officials if someone who fits the profile of a terrorist tries to board a flight. TSA Administrator Admiral James M. Loy has said his privacy amens, but he's vague about just how he plans to protect the personal information that will be collected and analyzed for CAPPS II.
Until he does, Congress should throw up the barricades against CAPPS II, just as it did against TIPS and TIA. To date, the only oversight or restriction anyone has suggested for CAPPS II is a Senate Commerce Committee request that the TSA present a report within three months on how the new system would affect "the privacy and civil liberties of U.S. citizens." But legislation that would require that, sponsored by Senator Ron Wyden (D-Ore.), is still awaiting a vote in both houses. Nor is it clear that such a report would ever be made public. If CAPPS II is to go ahead, as seems likely, the public needs to know how the system will work -- and have some guaranteed protections in case it runs amok.
The details of CAPPS II aren't yet set in stone. But here's what's clear so far: Like the original CAPPS, the new system will select passengers at random and compare their names to a government no-fly list. The upgrade is necessary, says the TSA, because the original CAPPS casts too wide a net, sweeping up travelers who pose no threat.COLOR-CODED FLYERS. CAPPS II would zero in more precisely on suspects by matching photo IDs to the names, addresses, phone numbers, and dates of birth collected by credit-reporting agencies, says TSA spokeswoman Heather Rosenker. It would then scan law-enforcement and intelligence files to determine whether the passenger is a security risk. The traveler would then receive a color-coded boarding pass: Green would mean go. Yellow would require the passenger to undergo more intense scrutiny and security checks. Code Red would automatically call in the cops to apprehend the person. The color code would be encrypted so that passengers weren't aware of their status.
TSA also promises an appeals process, so to speak. Passengers who felt they were wrongly selected for extra security checks would be able to file a complaint with an ombudsman, who would determine whether the database needed to be amended. Who the ombudsman would be and how cases would be adjudicated is still undecided. "We are very concerned about transparency," says Rosenker. "That's why we want oversight. We're designing it so someone is always watching."
Privacy advocates complain, however, that no amount of oversight can fix a system whose concept is flawed. For instance, it would be easy enough for a halfway competent terrorist to get an ID that shows a verifiable name, address, phone number, and date of birth, and to purchase an innocent citizen's basic information online. Moreover, commercial databases are filled with inaccurate or out-of-date information that could taint innocent people -- and keep them grounded.
FEWER NEEDLES, MORE HAY. As many consumers can attest, persuading credit agencies to correct erroneous information can be a Kafkaesque nightmare (see BW Online, 8/29/02, "Who's Policing the Credit Cops?"). And with CAPPS II, passengers won't even be able to tell what piece of data flagged them as security risks. "What systems like CAPPS II and TIA propose to do is collect information and draw a portrait that may be accurate or inaccurate, then use it to judge if you are a risk," argues Barry Steinhardt, director of the American Civil Liberties Union's technology and liberty program, who adds: "CAPPS II is based on the belief that you can find a needle in a haystack by adding more hay" (see BW Online, 12/18/01, "Snooping in All the Wrong Places").
Unfortunately, the larger the database, the harder it will be to ensure the accuracy of the information it contains. Which brings into question the FBI's decision on Mar. 24 to exempt the National Crime Information Center database, the granddaddy of all criminal-information repositories, from a key section of the 1974 Privacy Act that guarantees that the database will be "accurate, relevant, timely, and complete."
Privacy advocates say this is just one more example of how the government loves centralized data -- but not the responsibilities that should go with collecting and maintaining it. An FBI spokesman says the agency's move is reasonable, countering that since so much of the information in the database comes from other law-enforcement agencies, it's impossible to know whether everything is 100% accurate -- or whether a potent clue, such as a suspicious foreigner enrolled in a flight school, might be wrongly excluded.
LIFE OF ITS OWN. In times of war, the FBI and the Homeland Security Dept. are right to embrace new technologies that help keep the country safe. But in the Digital Age, they must weigh their decisions more carefully than ever. Unlike a law that can be scratched from the books with a stroke of a pen, high-tech databases, once in place, grow ever larger and can be easily co-opted for new and unwarranted uses.
Before plunging ahead, the TSA -- and any other agency seeking to monitor citizens -- should have to prove that whatever is proposed will both improve security and protect the privacy of the average American. Black covers privacy issues for BusinessWeek Online in her twice-monthly Privacy Matters column