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Project GUARDIAN - Publications |
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Overview | Events | News | Publications/White Papers | Presentations | Project Team How to Protect Our Privacy and “Connect the Dots” in the War on Terrorism Daniel J. Gallington The discussion about how to protect ourselves from another 9/11-style attack is in many ways circular: We know we have to have better information and we have to better connect it together – this is the basic conclusion of the Joint 9/11 Inquiry by Congress. However, we also don’t want the Government to have more information about us, and some don’t even want to be doing research on how to better use new information technology to analyze the information we already have. Even odder perhaps, we don’t seem at all concerned that the ubiquitous “private sector” knows more about us than our mothers, to the extent of minute details about our daily private lives, including what we buy and where. Most of this data, by the way, is available to the Government in the context of an authorized intelligence or law enforcement inquiry or investigation; which means that if the Government otherwise has the requisite cause to investigate someone, they will likely also have the authority to get this kind of privately held data. Add to this that we already have a highly developed and responsible system of intelligence oversight, such having been established some 30 years ago in the wake of the Watergate scandal. It was in this context that the rules on what information the Government could collect about “U.S. Persons”, and under what circumstances, were promulgated. While much of the information that pertains to terrorism is intelligence information, as it is defined in statute and executive order, much of the information relevant to the terrorist threat in this country may not fit the definition of intelligence, hence the Government may not have the authority to collect it at all. An example will help demonstrate the context of this problem: Let’s say that an intelligence “Red Team” had determined that a certain kind of commonly available boat or truck could be used in several extremely serious terrorist attack scenarios; and, assume further that recent intelligence collection has suggested that one such a scenario is being discussed by those thought to be terrorists or terrorist organizations. How does the Government get information on state truck or boat registrations, when all it knows is that one of them, somewhere, at sometime, may be used in a terrorist attack? The answer is that it can’t, and that is both a good and not so good answer, depending on how you look at it. Good because the Government really doesn’t have any particularized suspicion or good cause to look at any one or defined group of truck or boat registrants; and bad because it might offer a determined terrorist planner a way to get away with the mass murder of Americans in some diabolical attack. But what if all the boat and truck information could be coded in a way that an inquiry could not attach an identity to a particular registration, unless there was a correlation to other data, and unless a senior official or a judge determined that there was enough other information to justify learning the identity? This kind of process, or something like it, called “selective revelation” by some, could give us the confidence in new information technologies to allow the Government to at least demonstrate that it could responsibly use them. Nevertheless, a well thought out and vetted system of oversight and control of such new technologies and authorities would have to be put in place – and the Congress would have to play an active part in the oversight process, much as it does today in the oversight of traditional intelligence activities. New laws would have to be written and the President would have to authorize these new activities pursuant to new executive orders. The attached proposal, used as a discussion scenario in a panel discussion held by the Potomac Institute for Policy Studies on June 24, 2003, shows how such a new structure might look, and how the Congress and the Executive Department, including the Attorney General, the Secretary of Homeland Security, the Secretary of Defense, and the Director of Central Intelligence would play key oversight roles. The proposal does not include a judicial role, but could easily accommodate one, whether as an expanded role for the Foreign Intelligence Surveillance Court, or some other court or administrative body.
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