[Senate Hearing 110-2]
[From the U.S. Government Publishing Office]
S. Hrg. 110-2
BALANCING PRIVACY AND SECURITY: THE PRIVACY IMPLICATIONS OF GOVERNMENT
DATA MINING PROGRAMS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JANUARY 10, 2007
__________
Serial No. J-110-1
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
33-226 WASHINGTON : 2007
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 4
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts, prepared statement.............................. 136
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement and attachment............................ 142
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 3
WITNESSES
Barr, Robert, Chairman, Patriots to Restore Checks and Balances,
Washington, D.C................................................ 6
Carafano, James Jay, Heritage Foundation, Assistant Director,
Kathryn and Shelby Cullom Davis Institute for International
Studies, Senior Research Fellow, Douglas and Sarah Allison
Center for Foreign Policy Studies, Washington, D.C............. 15
Harper, Jim, Director of Information Policy Studies, CATO
Institute, Washington, D.C..................................... 8
Harris, Leslie, Executive Director, Center for Democracy and
Technology, Washington, D.C.................................... 10
Taipale, Kim A., Founder and Executive Director, Center for
Advanced Studies in Science and Technology Policy, New York,
New York....................................................... 12
QUESTIONS AND ANSWERS
Responses of Robert Barr to questions submitted by Senator
Kennedy........................................................ 29
Responses of James Jay Carafano to questions submitted by Senator
Specter........................................................ 32
Responses of Jim Harper to questions submitted by Senators Leahy,
Kennedy, and Specter........................................... 34
Responses of Leslie Harris to questions submitted by Senators
Leahy, Kennedy, and Specter.................................... 45
Responses of Kim Taipale to questions submitted by Senator
Specter........................................................ 54
SUBMISSIONS FOR THE RECORD
Barr, Robert, Chairman, Patriots to Restore Checks and Balances,
Washington, D.C., prepared statement and attachment............ 65
Carafano, James Jay, Heritage Foundation, Assistant Director,
Kathryn and Shelby Cullom Davis Institute for International
Studies, Senior Research Fellow, Douglas and Sarah Allison
Center for Foreign Policy Studies, Washington, D.C., prepared
statement...................................................... 74
Harper, Jim, Director of Information Policy Studies, CATO
Institute, Washington, D.C., prepared statement and attachment. 81
Harris, Leslie, Executive Director, Center for Democracy and
Technology, Washington, D.C., prepared statement............... 104
Hertling, Richard A., Acting Assistant Attorney General,
Department of Justice, Washington, D.C., letter and attachment. 116
McClatchy Newspapers, Greg Gordon, article....................... 152
Taipale, Kim A., Founder and Executive Director, Center for
Advanced Studies in Science and Technology Policy, New York,
New York, prepared statement................................... 154
Washington Post, Spencer S. Hsu and Ellen Nakashima, article..... 172
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria determined by the Committee, list............... 174
BALANCING PRIVACY AND SECURITY: THE PRIVACY IMPLICATIONS OF GOVERNMENT
DATA MINING PROGRAMS
----------
WEDNESDAY, JANUARY 10, 2007
United States Senate,
Committee on the Judiciary,
Washington, DC
The Committee met, pursuant to notice, at 9:31 a.m., in
room 226, Dirksen Senate Office Building, Hon. Patrick J. Leahy
(chairman of the committee) presiding.
Also present: Senators Specter, Feingold, and Whitehouse.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. The Judiciary Committee will be in order.
Today the Senate Judiciary Committee holds an important
hearing on the privacy implications of government data mining
programs. This committee has a special stewardship role in
protecting our most cherished rights and liberties as
Americans, including the right of privacy.
Today's hearing on government data mining programs is our
first in the new Congress. This hearing is also the first of
what I plan to be a series of hearings on privacy-related
issues throughout this Congress.
The Bush administration has dramatically increased its use
of data mining technology, namely the collection and monitoring
of large volumes of sensitive personal data to identify
patterns or relationships.
Indeed, in recent years the Federal Government's use of
data mining technology has exploded, without congressional
oversight or comprehensive privacy safeguards.
According to a May 2004 report by the Government
Accountability Office, at least 52 different Federal agencies
are currently using data mining technology. There are at least
199 different government data mining programs.
Think about that just for a moment. One hundred and ninety-
nine different programs that are operating or are planned
throughout the Federal Government. Of course, advances in
technology make data mining and data banks far more powerful
than ever before.
Now, these can be valuable tools in our national security
arsenal, but I think the Congress has a duty to ensure that
there are proper safeguards so they can be most effective.
One of the most common and controversial uses of this
technology is to predict whom among our 300 million Americans
are likely to be involved in terrorist activities.
According to GAO and a recent study by the CATO Institute,
there are at least 14 different government data mining programs
within the Departments of Defense, Justice, Homeland Security,
and Health. That figure does not include the NSA's programs.
I think Congress is overdue in taking stock of the
proliferation of these databases that are increasingly
collecting information on Americans.
Now, they are billed, of course, as counterterrorism tools,
but you wonder why there have to be so many, in so many
different departments. But the overwhelming majority of them
use, collect, and analyze personal information about ordinary
American citizens.
We have just learned through the media that the Bush
administration has used data mining technology secretly to
compile files on the travel habits of millions of law-abiding
Americans.
Incredibly, through the Department of Homeland Security's
Automated Targeting System program, ATS, our government has
been collecting information on Americans, just average
Americans.
They then share this sensitive, personal information with
foreign governments. They are shared with private employers.
There is only one group they will not share it with: the
American citizens they collected it on.
So if there is a mistake in there and you suddenly find you
cannot get into another country, or a mistake in there and you
find you do not get a promotion in your job because your
employer has it, you never know why and you never even know
what the mistake was.
Following years of denial, the Transportation Security
Administration, TSA, has finally admitted that its
controversial secure flight data mining program, which collects
and analyzes airline passenger data obtained from commercial
data brokers, violated Federal privacy laws by failing to give
notice to U.S. air travelers that their personal data was being
collected for government use. I think you find out why they
denied they were doing it: because they were breaking the law
in doing it.
Last month, the Washington Post reported that the
Department of Justice will expand its one-DOJ program, a
massive database that would allow State and local law
enforcement officials to review and search millions of
sensitive criminal files, following the FBI, DEA, and other
Federal law enforcement agencies.
That means sensitive information about thousands of
individuals, including thousands who have never been charged
with a crime, will be available to your local law enforcement
agencies no matter what their own system of protection of that
data might be.
So you have to have proper safeguards and oversight of
these, and other, government data programs, otherwise the
American people do not have the assurance that these massive
databases are going to make them safer, nor the confidence
their privacy rights will be protected.
And, of course, there are some very legitimate questions
about whether these data mining programs actually do make us
safer. It becomes almost humorous. Some of the consequences, I
have talked about before.
Senator Kennedy has been stopped 10 times going on a plane,
a flight he has been taking for 40 years back to Boston,
because somehow his name got, by mistake, on one of these
databases.
We had a 1-year-old child who was stopped because their
name was on as a terrorist. The parents had to go and get a
passport to prove this 1-year-old was not really a 44-year-old
terrorist.
So the CATO Institute study found that data mining is not
an effective tool for predicting or combatting terrorism
because of the high risk of false positive results.
We need look no further than the government's own terrorist
watch list, which now contains the names of more than 300,000
individuals, including, as I said, Members of Congress,
infants, and Catholic nuns, to understand the inefficiencies
that can result in data mining and government dragnets.
So let us find out how we can make ourselves safer, but not
make ourselves the object of a mistake and ruin our lives that
way.
I am joined today by Senator Feingold, Senator Sununu, and
others in a bipartisan attempt to provide congressional
oversight. We are reintroducing the Federal Agency Data Mining
Reporting Act, which we have supported since 2003. It would
require Federal agencies to report to Congress about their data
mining programs.
We in Congress have to make sure that our government uses
technology to detect and deter illegal activity, but do it in a
way that protects our basic rights.
I also might say, on a personal note, I want to thank
Chairman Specter for scheduling this hearing at my request. At
the beginning of every Congress we have to do various
reorganizational things, and I understand this is to be
completed today or early tomorrow, and allowing me to be
Chairman, even though I am not, technically, yet.
So, Chairman Specter, it is up to you. You do whatever you
want to do.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Well, thank you very much. I hope you will
not mind if I address you as ``Mr. Chairman'', Mr. Chairman.
Chairman Leahy. I can put up with it.
[Laughter].
Senator Specter. The 109th Congress was very productive for
the Judiciary Committee because of the close cooperation which
Senator Leahy and I have had, which goes back to a period
before we were Senators.
The National District Attorneys' Conference was held in
1970 in Philadelphia when I was District Attorney, and District
Attorney Leahy from Burlington, Vermont attended. We formed a
partnership which has lasted and withstood partisan pressures
in Washington, DC.
When Chairman Leahy refers to my scheduling of a hearing at
his request, I think there were a number of hearings which were
at Senator Leahy's request when he was only Senator Leahy and
not Chairman Leahy. We had a very close, coordinated
relationship and I am sure that will continue.
Senator Harkin and I have passed the gavel for many years
in the Subcommittee on Appropriations, and we call it a
seamless transfer. This is our first transfer of the gavel
between Chairman Leahy and myself, and I am looking forward to
a seamless operation.
In fact, Senator Leahy and I coordinated with the
introduction of the Personal Data Privacy and Security Act of
2005, which we reported out of committee and have coordinated
with the Commerce Committee, which dealt with identity theft
significantly, but also with data mining.
There are some very important issues which are raised in
the collation of all this material. The presence of the
material in so many contexts led the Supreme Court to observe,
in the case of U.S. Department of Justice v. Reporters'
Committee for Freedom of the Press, that when information is
located in so many spots, it is a matter of ``practical
obscurity'', but when it is all brought together, it is a
different matter.
The committee focused on one aspect of this last year when
we were looking at the telephone company responses to the
government's request for collection of data. There may be very
important law enforcement activities which utilized this data
appropriately, but it is a balancing test of what kind of
privacy was invaded, and what is the benefit for law
enforcement, what is the benefit for society.
I want to start my tenure as the non-chairman by observing
the time limit, so I yield back a balance of 20 seconds. Thank
you, Mr. Chairman.
Chairman Leahy. I thank Chairman Specter. We have tried to
work together. We have worked together ever since Senator
Specter came here in 1986.
Senator Specter. 1980.
Chairman Leahy. 1980. I am sorry. Time goes by when you are
having fun. And we did know each other as former prosecutors.
We worked closely together. We have been on the Appropriations
Committee together and worked together, and on this committee.
I think we lowered the level of partisanship in this
committee during the past 2 years, and I hope to continue that.
I am hoping that we are going to reach a point where things can
work the way the Senate should.
I do note that Senator Feingold of Wisconsin is here. He
is, as I mentioned, the lead sponsor on this bill. I would
yield to Senator Feingold if he wished to say anything.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman, and thank the
Ranking Member. It is a pleasure working with you in the
different capacities, and I look forward to working with both
of you again on this committee.
Thanks for holding this hearing. It raises important policy
questions about the capabilities of data mining technologies
and the privacy and civil liberties implications for ordinary
Americans if this type of technology were to be deployed. These
are questions that Congress has to address.
This hearing is a critical first step in the process of
understanding, evaluating, and perhaps regulating this type of
technology. Many Americans are understandably concerned about
the specter of secret government programs analyzing vast
quantities of public and private data about the every-day
pursuits of mostly innocent people in search of patterns of
suspicious activity.
So let me start by reiterating a point that Senator Wyden
and I made in a recent letter to Director of National
Intelligence Negroponte. Obviously, protecting our national
security secrets is essential and the intelligence community
would not be doing its job if it did not take advantage of new
technologies.
But when it comes to data mining, we must be able to have a
public discussion, what one of our witnesses has called a
national conversation, about its potential efficacy and privacy
implications before our government deploys it domestically.
We can have that public debate about these policy issues
without revealing sensitive information that the government has
developed. The witnesses here today have for years been
debating a variety of issues related to data mining.
It is time to get Congress and the executive branch into
that discussion, not just in reaction to the latest news story,
which has sort of been the position we have been in in the
past, but in a proactive, thoughtful, and collaborative way.
As I have said before, this hearing is an important first
step. I hope that the next step will be the enactment of the
Federal Data Mining Reporting Act, which I am reintroducing
today along with Senator Sununu, Senator Leahy, and others. I
thank the Chairman for mentioning it, and for his excellent
support of the bill.
The bill requires Federal agencies to report on their
development and use of data mining technologies to discover
predictive or anomalous patterns indicating criminal or
terrorist activity, the types of data analysis that raise the
most serious privacy concerns. It would, of course, allow
classified information to be provided to Congress separately
under appropriate security measures.
Along with this hearing, I hope these reports will help
Congress, and to the degree appropriate the public, finally
understand what is going on behind the closed doors of the
executive branch so we can start to have the policy discussion
about data mining that is long overdue. I would urge my
colleagues to support the legislation.
Mr. Chairman, I also want to note that last night I
received a response from the Director of National Intelligence
Negraponte to the letter Senator Wyden and I wrote to him
regarding the Tangram Data Mining Program.
In it, ODNI states that Tangram is a research project, and
acknowledged that it has ``a real risk of failure.'' It also
assured us that no Tangram tools would be deployed without
consultation with the DNI's Civil Liberties and Privacy
Officer.
I would just add that I would hope that Congress also would
be consulted prior to any deployment of the Tangram data mining
tool. So, I do thank you, Mr. Chairman, very much for the
opportunity to make this opening statement.
Chairman Leahy. Thank you.
Would the panel please rise and raise your right hand?
[Whereupon, the panel was duly sworn.]
Chairman Leahy. Following our normal procedure--and I am
sure you understand this, Mr. Harper--we have a former Member
of Congress and we will recognize him first. Bob Barr
represented the Seventh District of Georgia in the U.S. House
of Representatives from 1995 to 2003. He was on the Judiciary
Committee. He was Vice Chairman of the Government Reform
Committee and a member of the Committee on Financial Services.
He occupies the 21st Century Liberties Chair for Freedom
and Privacy at the American Conservative Union; serves as a
board member of the National Rifle Association; is chairman of
Patriots to Restore Checks and Balances; provides advice to
several organizations, including--this is interesting--
consulting on privacy issues with the ACLU, serving as a chair
for youth leadership training at the Leadership Institute in
Arlington, Virginia; and is a member of the Constitution
Project's Initiative on Liberty and Security based at
Georgetown University's Public Policy Institute.
The Congressman served as a member of the Long-Term
Strategy Project for Preserving Security and Democratic Norms
in the War on Terrorism at the Kennedy School of Government at
Harvard University from 2000 to 2005. He was a New York Times
columnist, and a close personal friend of mine, Mr. Safire, has
called him ``Mr. Privacy''.
So with all that, Bob, go ahead.
STATEMENT OF ROBERT BARR, CHAIRMAN, PATRIOTS TO RESTORE CHECKS
AND BALANCES, WASHINGTON, D.C.
Mr. Barr. Thank you very much, Mr. Chairman. Let me add my
personal congratulations to the many I know you have received
since your ascendancy to the chairmanship.
Let me also congratulate the fine work that Senator Specter
has been involved in in laying the groundwork for the work that
I know is coming this Congress with regard to the fundamental
right to privacy and other civil liberties, particularly vis-a-
vis fighting against acts of terrorism.
I very much appreciate both the former chairman and the
current chairman inviting me today to this very important
hearing.
I appreciate very much the attendance of at least two other
Senators at this time whose presence here today obviously
indicates a keen interest on their part in the issues before
this committee, Senator Whitehouse and Senator Feingold, who
has been a leader in the last Congress, and even before that.
I very much appreciate the committee indicating, I think
very clearly, to the American people and to your colleagues
here in the Congress that the issue of privacy, particularly as
it relates to government data mining and the secrecy
surrounding that and the extent thereof, is a top A-1 priority.
I think that sends a very important message.
Of course, mindful of the committee's many
responsibilities, I would ask that my prepared testimony be
included in full in the record.
Chairman Leahy. It will.
[The prepared statement of Mr. Barr appears as a submission
for the record.]
Mr. Barr. What I would like to do, simply, in addition to
that, is indicate to the committee, I think that a very
appropriate starting point, or at least one of the starting
points for the 110th Congress' long-term discussion of these
issues, looking at and laying the groundwork for particular
pieces of legislation, such as that which the committee has
indicated will be introduced today.
I think it is important also to focus on some fundamental
questions which have given rise because of the extensive secret
data mining by the government and by private industry in
conjunction with the government to a culture of suspicion in
our society.
Perhaps one of the most fundamental issues, the most
fundamental questions that really needs to be addressed, is who
owns all of this data, this private data, this private,
personal information that is the subject of all of this data
mining?
The extent of the data mining, Mr. Chairman, you indicated
is the tip of the iceberg. There have been recent disclosures
that there are at least some 200 different data mining systems
in the government.
You can hardly pick up the paper any day or watch the news
any day and yet not walk away with new revelations about new
data mining, whatever agency of the government it is, not just
the Department of Justice, the Department of Defense, CDC, HUD,
Homeland Security, Social Security Administration, IRS, SBA.
They all seem to be enamored of, and have this blind interest
and faith, in data mining.
The problem is, there has never been a comprehensive look
at who owns this data. The fact that over the last several
years the administration has been treating that data as its
own--that is, information on private citizens--begins us down
that slippery slope.
That slippery slope, we are all aware now, leads not only
to secret data mining, which includes very personal data on
American citizens and others in this country who have rights
equal to those of our citizens under the Bill of Rights, First
Amendment, Second Amendment, Fourth Amendment, and Fifth
Amendment, being maintained in these government databases with
no knowledge thereof, with no way to correct errors or improper
information.
But it also leads us down that slippery slope to where we
now see this administration, and that is viewing private mail
that Americans and others have sent through the U.S. Postal
Service.
If, in fact, the government can continue to believe or view
this data that is the subject of data mining as its own, that
it owns it, then everything else that it wants to do follows
from that false premise.
Certainly, they can read people's mail, they can read
people's e-mails. I think that is really a fundamental question
that the committee must look at. There are others on which I
would be glad to provide whatever information I have in terms
of questions and follow-up.
But I really do think there are fundamental issues
regarding the ownership of that data and the extent to which
the government already, and should be, engaged in that that
provide more than fertile ground for this committee to look
into.
Chairman Leahy. Thank you, Congressman. In fact, those will
be among the questions that will be asked of the Attorney
General when he comes here next week, the mail opening one.
More and more, we hear about these things only because we read
about it in the press, and this creates a strong concern for
me.
Jim Harper is the Director of Information Policy Studies at
the CATO Institute. As Director of Information Policy Studies,
he focuses on the difficult problem of adopting law and policy
to the unique situation of the information age. He is a member
of the Department of Homeland Security's Data Privacy Integrity
Advisory Committee.
His work has been cited by USA Today, Associated Press, and
Reuter's. He has appeared on Fox News channel, CBS, and MSNBC,
and other media. His scholarly articles appear in the
Administrative Law Review, the Minnesota Law Review, and the
Hastings Constitutional Law Quarterly.
He wrote the book, Identity Crises: How Identification is
Overused and Misunderstood. He is the editor of privasilla.org,
a web-based think tank devoted exclusively to privacy. He
maintains the online Federal spending resource,
washingtonwatch.com. He holds a J.D. from Hastings College of
Law.
Mr. Harper, it is yours. Again, I apologize. We have to ask
you to keep the statement brief--your whole statement will be
part of the record--because we want to ask questions.
I should also note that Senator Whitehouse of Rhode Island
has joined us here, not only today for the hearing, but Senator
Whitehouse is a former attorney general. I had asked him,
before he knew all the work that goes on in this committee, if
he would join the committee. In a moment of weakness, he said
yes. Senator, I am glad to have you here.
Senator Whitehouse. I am glad to be with you, Mr. Chairman.
Delighted to be with the Ranking Member. And it was no moment
of weakness.
Chairman Leahy. Thank you.
Mr. Harper?
STATEMENT OF JIM HARPER, DIRECTOR OF INFORMATION POLICY
STUDIES, CATO INSTITUTE, WASHINGTON, DC
Mr. Harper. Thank you, Mr. Chairman.
If I can briefly start with a personal note that extends my
biography just a little bit, my first job here on Capitol Hill
was working for Senator Biden during the period when he was
Chairman of this committee. I was an intern at the time.
It inspired my legal career, including my focus on
constitutional law. My first paid job when I returned to the
Hill after that was with Senator Hatch as a legal fellow on
this committee. So I really appreciate being here before you.
Chairman Leahy. You covered both sides of the aisle very
well.
Mr. Harper. In the spirit of bipartisanship. This committee
has influenced my life and career a great deal and I hope that,
in a small way, I will be able to influence you today.
The questions about data mining are complicated. Questions
about privacy are complicated. When you combine the two, you
have a very complex set of issues to deal with.
So we will obviously start to sort them out, but I think
the conversation that you are starting with this hearing and
with the oversight you intend to do this year in this Congress
is very important.
My resort is to a document that we produced in the
Department of Homeland Security Data Privacy Committee, where
we created a structure, a framework for thinking about problems
like this.
The first step in that framework is to ask how a program or
technology serves a homeland security purpose. What risk does
it address and how well does it address that risk? Once you
determine that, you can make decisions about privacy and decide
whether you want to use this technology, and how you want to
use it.
I think in the area of data mining we have not gotten past
that step yet. What is the theoretical explanation for how data
mining can catch terrorists, is the major question that is
before us.
The positive case for the use of data mining in this
particular area has not yet been made, so I suppose that my
colleague, Jeff Jonas, and I laid down something of a marker
when we issued our paper on the dis-utility of data mining for
the purpose of finding terrorists.
We argue that what we call ``predictive data mining'', that
is, finding a pattern in data and then seeking that pattern
again in data sets, predictive data mining, cannot catch
terrorists.
Data mining can give a lift. There are many good uses to
data mining. It can give a lift to researchers, their study of
people, of scientific phenomena. But with the absence of
terrorism patterns on which to develop a model, you're going to
have a very hard time finding terrorists in data.
The result will be that you will get a lot of false
positives. That is, you will find that many people who are not
terrorists are suspects. You will waste a lot of resources
going after these people. You will follow a lot of dead ends.
And, very importantly, you will threaten the privacy and civil
liberties of innocent, law-abiding Americans.
Now, I personally think that this applies equally well to
developing patterns to search for through red-teaming and in
searching for anomalies, though this was not the subject of our
paper.
I think it is important to recognize this is not an
indictment of data mining in toto. There are many data mining
programs that may not even use personal information.
There are data mining programs that use personal
information that may successfully ferret out fraud, for
example, in health care payments or areas like that, so it is
important to be clear about where data mining does not work and
where it certainly may work.
I think the proponents of data mining need to make that
affirmative case. It is not enough to attack nominal opponents
of data mining. The affirmative case, again, has to be made.
You on this committee should be able to say to yourselves,
oh, yes, I get it. I understand how data mining works. Then the
country will be ready to accept data mining as a law
enforcement or national security tool.
Once the benefits of data mining are understood and clear,
then you can consider the privacy and other costs. Certainly
there are dollar costs, as there are with any program, and a
lot of dollars are going into data mining at this point.
But the privacy costs, which I have articulated, or
attempted to articulate, in my paper include the lack of
control that people have over personal information about
themselves, the questions of fairness, of liberty, and data
security.
In this committee, we have referred to some of these things
as due process, or the Fourth Amendment right to be free of
unreasonable search and seizure, and equal protection. So the
thing that I think we need, and the thing that I think we are
seeing in the bill that is being introduced today--and I am
quite happy about that--is transparency.
Transparency should be seen as an opportunity for the
proponents of data mining to make their case, to make the
affirmative case for data mining. We need to see how it works,
where it is being used, what data is being used, what assures
that the data is of high quality, and so on and so forth.
You will run into the problem of secrecy, that is, secrecy
being put forward as a reason why not to share this information
with you, why not to explain data mining to you. But I think
you will have to address that at the right point, and I hope
you will.
Thanks very much for the opportunity to present to you
today.
Chairman Leahy. Thank you, Mr. Harper.
[The prepared statement of Mr. Harper appears as a
submission for the record.]
Chairman Leahy. Leslie Harris is the Executive Director for
the Center for Democracy and Technology. She joined CDT in the
fall of 2005, and became Executive Director at the beginning of
2006. She brings over two decades of experience to CDT as a
civil liberties lawyer, a lobbyist, and public policy
strategist.
Her areas of expertise include free expression, privacy,
and intellectual property. Prior to joining CDT, Ms. Harris was
Founder and President of Leslie Harris & Associates, a public
interest, public policy, and strategic services firm,
representing both corporate and nonprofit clients before
Congress and the executive branch on a broad range of Internet-
and technology- related issues, including intellectual
property, online privacy, telecommunications, and Spectrum.
During that time she was involved in the enactment of many
landmark pieces of legislation, including the landmark e-rate
amendment to the 1996 Telecommunications Act, the Children's
Online Privacy Protection Act, and the 2002 Technology,
Education, and Copyright Harmonization Act, or the TEACH Act,
which updated copyright law for digital distance learning. I
would note that Ms. Harris has appeared before this committee
many times, and I appreciate that.
Please go ahead.
STATEMENT OF LESLIE HARRIS, EXECUTIVE DIRECTOR, CENTER FOR
DEMOCRACY AND TECHNOLOGY, WASHINGTON, DC
Ms. Harris. Thank you so much, Mr. Chairman. I appreciate
the opportunity to be here. I want to applaud the Chairman, in
particular, for making this data mining question, and privacy
in general, a first order of business for this committee.
From the perspective of CDT, we believe that information
technology ought to be used to better share and analyze the
oceans of information that the government has in the digital
age, but both national security and civil liberties require
that technology only be used when there is a demonstrable,
effective impact, and then only within a framework of
accountability, oversight, and most importantly, protection of
individual rights.
Data mining, in the abstract, is neither good nor bad, but
as Jim Harper has pointed out, there is very little evidence of
the effectiveness of at least the protective or patterned data
mining. Yet, frankly, the executive branch is bewitched with
this technology.
Unless and until a particular data mining technology can be
shown to be an effect tool for counterterrorism and appropriate
safeguards are in place to protect the privacy and due process
rights of Americans, Congress should simply not permit the
executive branch to deploy pattern-based data mining tools for
any terrorism purposes.
Mr. Chairman, for some time you have sounded the alarm
about how the legal context for data collection and analysis
has been far outstripped by technology; at the very time that
the legal standards for government access to data have been
lowered and legal safeguards like the Privacy Act have been
bypassed and the Fourth Amendment requirements for probable
cause, particularity, and notice have been thrown into doubt,
we are moving into this very sophisticated and troubling data
mining era.
The impact of this perfect storm of technological
innovation, growing government power, and outdated legal
protections is well illustrated by the revelation last month
that the Automatic Targeting System, which is designed to
screen cargo, is now being used to conduct risk assessments on
individuals. Those risk assessments, as I read this Privacy Act
notice, can be used for a wide variety of uses wholly unrelated
to border security.
There is much Congress can do. The first step, of course,
is to pierce this veil of secrecy. We strongly endorse the
legislation that you, Senators Feingold, Sununu, and others
have introduced today. We need vigorous oversight. We need
transparency. Ultimately, we need legislation. We cannot do any
of that until we are able to get a handle on what is going on.
We believe that Congress ought to go further and not permit
any particular data mining applications to be deployed until
there is a demonstration of effectiveness. We believe research
should continue, but in terms of deploying these technologies,
we do not even have to reach the privacy questions until we
know whether or not they are working.
While it is the job of the executive branch, in the first
instance, to develop serious guidelines for the deployment of
data mining for data sharing and analysis, we do not believe
that job has been adequately done.
If necessary, this body needs to impose those guidelines.
There is much in the Markle recommendations and others to guide
you in that regard.
Finally, we have to get our arms around how commercial
databases are being used for data mining. Those activites fall
entirely outside of the Privacy Act and all other rules.
Last year, Mr. Chairman, Mr. Specter, you introduced the
Personal Data Privacy and Security Act. That bill included
important to ensure that government use of commercial data
bases for data mining was brought under the Privacy Act. We
ought to enact that bill and we ought to enact some other
protections as well.
I appreciate the opportunity to testify, and am ready for
your questions.
Chairman Leahy. Thank you.
[The prepared statement of Ms. Harris appears as a
submission for the record.]
Chairman Leahy. Our next witness is Kim Taipale. Now, have
I pronounced it right?
Mr. Taipale. Close enough.
Chairman Leahy. How do you pronounce it?
Mr. Taipale. Taipale.
Chairman Leahy. Taipale. Mr. Taipale is the Founder and
Executive Director of the Center for Advanced Studies in
Science and Technology Policy. It is a private, nonpartisan
research and advisory organization focused on information
technology and global and national security policy.
He is a Senior Fellow at the World Policy Institute, where
he serves as Director of the Global Information Society
Project, and the Program on Law Enforcement and National
Security in the Information Age. He is an Adjunct Professor of
Law at New York Law School, where he teaches cyber crime, cyber
terrorism, and digital law enforcement.
He serves on the Markle Task Force on National Security in
the Information Age, the Science and Engineering for National
Security Advisory Board of The Heritage Foundation, the Lexis-
Nexis Information Policy Forum, and the Steering Committee of
the American Law Institute's Digital Information Privacy
Project.
Thank you for joining us here today.
STATEMENT OF KIM TAIPALE, FOUNDER AND EXECUTIVE DIRECTOR,
CENTER FOR ADVANCED STUDIES IN SCIENCE AND TECHNOLOGY POLICY,
NEW YORK CITY, NEW YORK
Mr. Taipale. Thank you, Mr. Chairman. Mr. Chairman, Senator
Specter, members of the committee, thank you for the
opportunity to testify today on the implications of government
data mining.
Data mining technology has raised significant policy and
privacy issues, and we have heard a lot of them today. I agree
with all of those. But the discussion about data mining suffers
from a lot of misunderstandings that have led to a presentation
of a false dichotomy, that is, that there is a choice between
security and privacy.
My testimony today is founded on several beliefs. First,
that privacy and security are not dichotomous rivals, but dual
obligations that must be reconciled in a free society. Second,
we face a future of more data and more powerful tools, and
those tools will be widely available.
Therefore, third, political strategies premised on
outlawing particular technologies or techniques are doomed to
failure and will result in little security and brittle privacy
protection.
Fourth, there is no silver bullet. Everybody is right here.
Data mining technologies alone cannot provide security.
However, if they are properly employed they can improve
intelligence gain and they can help better allocate
intelligence and security resources. If they are properly
designed, I believe they can still do that while protecting
privacy.
Before getting to my two main points, there are also some
general policy principles that I think should govern the use of
any of these technologies if they are implemented.
First, they should be used only for investigative purposes.
That is, as a predicate for further investigation, not for
proof of guilt or to otherwise automatically trigger
significant adverse consequences.
Second, any programmatic implementations should be subject
to strict oversight and review, both congressional and, to the
extent appropriate, judicial review, consistant with existing
notions of due process.
Third, specific technology features and architectures
should be developed that help enforce these policy rules,
protect privacy, and ensure accountability. So let me just make
two main points.
The first, is a definitional problem. What is data mining?
Data mining is widely misunderstood, but just defining it
better is not the solution. If we are talking about some
undirected massive computer searching through huge databases of
every individual's private information and intimate secrets,
and the result of a positive match is that you face a firing
squad, I think we will all agree that we are opposed to that.
If, on the other hand, we are talking about uncovering
evidence of organizational links among unknown conspirators
from within legally collected intelligence databases in order
to focus additional analytical resources on those targets, I
think we will all agree that we are for it. The question is,
can we draw a line between those two?
I doubt it if we start by focusing only on trying to define
data mining. That is precisely the mistake that detracts us
from the issues we should be focused on, some of which were
actually raised in your opening statements. Drawing some false
dichotomy between subject-based and pattern-based analysis is
sophistry, both technical- and policy-wise.
The privacy issue in a database society, or to put it the
other way around, the reasonableness of government access to
data or use of any particular data, can only be determined
through a complex calculus that includes looking at the due
process of a system, the relationships between the particular
privacy intrusion and security gain, and the threat level. They
simply cannot be judged in isolation.
Even privacy concerns, themselves, are a function of scope,
sensitivity of the data, and method: how much data, how
sensitive is the data, and how specific is the query? But we
really need to separate the access question and the decision-
making question--on either side--from the data mining question
itself and the use of data mining tools.
More importantly, even the privacy concerns cannot be
considered away from due process. Due process is a function of
predicate: alternatives, consequences, and error correction.
A lot of predicate and you can tolerate severe consequences
even in a free society, but even ambiguous predicate maybe all
right if there are minor consequences and there is robust error
correction and oversight.
While we are on predicate we should note that there is no
blanket prohibition against probablistic predicates, such as
using predicate patterns. We do it all the time. Nor is there a
requirement for non-individualized suspicion, such as using
pattern mining.
My point is not that there are no privacy concerns, only
that focusing only on data mining, however you define it, is
not terribly useful. It really needs to be looked at more
broadly. It is basically the computational automation of the
intelligence function as a productivity tool that, when
properly employed, can increase human analytical capacity and
make better use of limited security resources.
My second and final point, is that you cannot look at data
mining in this context through the ``it won't work'' lens and
simply dismiss potential. First, the popular arguments about
why it will not work for counterterrorism are simply wrong.
As I explain in my written testimony, the commercial
analogy is irrelevant, the training set problem is a red
herring, and the false positive problem can be significantly
reduced by using appropriate architectures. In any case, it is
not unique to data mining. It is fundamental to the
intelligence function. The intelligence function deals with
uncertainties and ambiguities.
Second, you cannot burden technology development with
proving efficacy before the fact. We need R&D and we need real-
world implementations and experience, done correctly with
oversight, so we can correct errors.
Third, you cannot require perfection. To paraphrase
Voltaire, the perfect ought to not be the enemy of the better.
Finally, you need to bear in mind that any human and
technological process will fail under some conditions. Some
innocent people will be burdened in any preemptive approach to
terrorism and, unfortunately, some bad guys will get through.
That is reality.
The question is, can we use these data mining tools and
improve intelligence analysis and help better allocate security
resources on the basis of risk and threat management?
I think we can, and still protect privacy, but only if
policy and system designers take the potential for errors into
account during development and control for them in deployment.
Chairman Leahy. Thank you.
[The prepared statement of Mr. Taipale appears as a
submission for the record.]
Chairman Leahy. I would note that a number of the Senators
have expressed a great deal of interest in this subject, both
on the Republican side and the Democratic side. They are not
here this morning simply because we have several major
committees meeting at the same time.
One of the problems with the Senate, is you cannot be in
more than one place at a time. Senator Feingold, for exmaple,
is at the Foreign Relations Committee, and several other
Senators have mentioned they wanted to be here.
Dr. Carafano, our next witness, is the Assistant Director
for the Kathryn and Shelby Cullom Davis Institute for
International Studies. He is a Senior Research Fellow at the
Douglas and Sarah Allison Center for Foreign Policy Studies.
Dr. Carafano is one of The Heritage Foundation's leading
scholars on defense affairs, military operations and strategy,
and homeland security.
His research focuses on developing the national security
that the Nation needs to secure the long-term interests of the
United States, realizing as we all do that terrorism is going
to face us for the rest of our lifetimes, and how you protect
our citizens and provide for economic growth and preserve civil
liberties.
He is an accomplished historian and teacher. He was an
Assistant Professor at the U.S. Military Academy at West Point,
served as Director of Military Studies at the Army's Center of
Military History, taught at Mt. Saint Mary College in New York,
served as a Fleet Professor at the U.S. Naval War College. He
is a Visiting Professor at the National Defense University at
Georgetown University.
I do not want anybody to think that we have this large
proliferation of people connected with Georgetown just because
I went to Georgetown Law School; it is purely coincidence.
Dr. Carafano, go ahead.
STATEMENT OF JAMES JAY CARAFANO, HERITAGE FOUNDATION, ASSISTANT
DIRECTOR, KATHRYN AND SHELBY CULLOM DAVIS INSTITUTE FOR
INTERNATIONAL STUDIES, SENIOR RESEARCH FELLOW, DOUGLAS AND
SARAH ALLISON CENTER FOR FOREIGN POLICY STUDIES, WASHINGTON, DC
Mr. Carafano. Thank you, Mr. Chairman. I also got my Ph.D.
from Georgetown.
[Laughter].
I have submitted my statement for the record.
Mr. Carafano. I would like to do three things, very
quickly: place the issue in context, state what I really think
the problem is, and then argue why it is really essential that
Congress address the issue and solve it.
First of all, I come at this not as a lawyer, because I am
not a lawyer, but as an historian and strategist. One of the
fundamentals of good, long war strategy for competing well over
the long term is that you have to have security and the
preservation of civil liberties, as well as maintaining civil
society.
It is not a question of balance. You simply have to do both
over the long term. I think there is no issue or no security
tool in which this issue is more important than the one we are
discussing today.
The problem is simply this. In the good old days when we
were kids, technology evolved fairly slowly and policy could
always keep up. We could look, we could observe, we could
correct--trial and error.
But the fact is, today technologies evolve far more quickly
than policies can be developed. Information proliferates,
capabilities proliferate, and if the technology evolution has
to stop for the policy to catch up, it is never going to
happen.
In fact, it will not stop. You cannot stop it. So what you
have to do is take a principled approach. You have to have a
set of fundamental principles at the front end as guidelines to
guide the development and implementation of the technology.
Among these, we have argued--some Kim already mentioned--
are a clear definition of what data mining really is,
addressing the requirements for efficacy, addressing the
requirements for the protections, putting in appropriate checks
and balances, and most importantly and often forgotten, is
addressing the issue of the requirement for human capital and
programming investments to actually implement these programs
correctly.
The third point that I will make very quickly, is why is
this really so important? There are really two aspects to that.
The first, is we do not have infinite resources. What we need
to do is focus our information and intelligence and law
enforcement resources where they are going to do the most good.
And while it is absolutely important that any system
protect the rights of everyone, we should also have systems
that inconvenience as few people as possible. That is part of
keeping a free, open, and healthy civil society. So we should
be looking for systems which are directing on us on where we
most live.
I would argue, for example, that programs like the
Container Security Initiative and the Automated Targeting
System--which, by the way, I think you could argue are not data
mining systems--are good examples of where we try to focus
scarce resources on things that might be problematic. Contrast
that, for example, with the bill passed yesterday in the House,
which argues that we should strip-search every container and
package that comes into the United States (where you look at
everything), or the lines that we have at TSA, which look at
grandmothers and people coming through absolutely equally.
So we want systems that are going to focus our assets,
where we inconvenience the least amount of citizens, friends,
and allies of the United States, and we want to use our law
enforcement efforts to best effect.
If we can create reporting requirements and a set of
principles at the front end that guide the administration in
doing that and adapting these new technologies, I think it will
be time well spent by the Congress.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Carafano appears as a
submission for the record.]
Chairman Leahy. Thank you. I am going to come back to this
question of which things work best, because we are talking
about millions of dollars--perhaps billions of dollars--being
spent. I worry about a shotgun approach as compared to a rifle
approach where you might actually pick what works.
When I see 90-year-old people in walkers take their shoes
off to go onto an airplane and then not physically able to even
put the shoes back on, I am curious just what happens.
I have been worried about the lack of privacy safeguards.
In early 2003, I wrote to former Attorney General Ashcroft to
inquire about the data mining operations, practices, and
policies within the Department of Justice.
I would ask that a copy of my January 10, 2003 letter be
made a part of the record. I would love to be able to put a
response in the record too, but of course I never got one.
In 2003, I joined Senator Wyden in a bipartisan coalition
of Senators in offering an amendment to the omnibus
appropriations bill that ended the funding for the
controversial TIA, Total Information Awareness, program because
there were no safeguards.
In April of that year I joined with Senator Feingold in
introducing the Federal Data Mining Reporting Act, which
required all Federal agencies to report back to Congress on
their data mining programs in connection with terrorism and law
enforcement efforts, and a version of our measure was put on
the Department of Homeland Security appropriations bill.
But basically the administration has ignored a lot of the
bans that Congress, in a bipartisan way, has put on these
things. Just last month, Representative Martin Sabo, one of the
leaders in enacting the legal prohibition on developing and
testing data mining programs, told the Washington Post that the
law clearly prohibits the testing or development of the
Department of Homeland Security's ATS data mining program, even
though that has been used for years to secretly assign so-
called terror scores to law-abiding Americans, I suppose that
90-year-old person in the walker. I will put the Washington
Post article in as part of the record.
All I want is the administration to follow the law. They
want us to follow the law, they ought to follow the law and let
us develop what is best. We all want to stop terrorists, but we
do not want to make our own government treat us, all of us,
like we are terrorists.
So, Mr. Harper, I read your article on ``Effective
Counterterrorism and the Limited Role of Predictive Data
Mining'' with a great deal of interest because data mining
becomes more and more a tool to detect terrorist threats.
In May of 2004, 2 years ago, GAO reported that there were
at least 14 different government data mining programs in
existence today. That was back then.
Now, I favor the use of data mining technology if there are
safeguards, but we are talking about millions of dollars--
probably billions of dollars by now--in data mining technology
in order to predict future terrorist threats. I worry about the
huge amount of stuff coming in that does not do a darned thing.
Are you aware of any scientific evidence or empirical data
that shows the government data mining programs are an effective
tool in predicting future terrorist activity or identifying
potential terrorists?
Mr. Harper. I am not aware of any scientific evidence, of
any studies. Unfortunately, the discussion tends to happen in
terms of bomb throwing or anecdote, where the ATS system, for
example, has been defended based on one anecdote of someone who
was turned away from the U.S. border based on ATS and ended up
being a bomber in Iraq.
Now, I recently spoke with a reporter who is apparently
investigating that story, and it was not necessarily ATS
signaling that this was a potential terrorist, but rather that
it was a potential immigration over-stayer. So was that an
example of the system working or was it not? That is just an
anecdote. We would be much better off with scientific
background that justifies this.
Chairman Leahy. Do you not think we should have a
scientific study to find out if we are going to spend millions,
even billions, whether this thing actually works?
Mr. Harper. Absolutely. I think, along with scientific
study, allowing technologies like data mining to prove
themselves in the private sector will give us much more than
allowing government research to happen.
Chairman Leahy. Dr. Carafano, are you aware of any
empirical studies?
Mr. Carafano. Well, I think, quite frankly, a review of the
scientific literature does not give you a definitive answer of
the ultimate potential of data mining technologies to predict
behavior. But we should also realize, if you look at the state
of behavioral science--
Chairman Leahy. I am not asking about the potential that
someday it may work. Are you aware of any empirical study that
these millions of dollars--maybe billions of dollars--we are
spending on all these systems seem to be proliferating?
Everybody has got to have their own. Are you aware of
scientific or empirical studies that say they work?
Mr. Carafano. Senator, somebody would have to specifically
describe to me the program, then we would have to have a
discussion about whether it is actually a data mining program
or not. I am not sure that all the systems that GA qualifies is
data mining, or ATS, which I do not believe is a data mining
system. But the point is, behavioral science modeling is a
rapidly developing field.
The combination of computer technology and informatics and
behavioral science is producing new advances every day, and so
even if I gave you a definitive answer today that said I can
guarantee you for a fact that data mining processes cannot
predict terrorist behavior, that answer may be totally false 6
months, a year, or 2 years from now. I cannot give you that
answer--
Chairman Leahy. Might we suggest there are some mistakes
when Senator Kennedy and Congressman Lewis are told they cannot
go on an airplane, or a pilot has to lose a lot of his income
because he gets delayed every single time they go through, even
though they know it is the wrong guy?
Mr. Carafano. Yes, sir. But in all those systems you are
doing one-to-one matches. They have got a data point and they
are matching a person to that data point. Sometimes those data
points are incorrect. That is not data mining.
Chairman Leahy. I could follow up for a couple of hours on
that one, but we will go back to it.
Congressman Barr, in November of 2002, the New York Times
reported that DARPA was developing a tracking system, which
turned out to be Total Information Awareness.
Privacy concerns were so abhorrent that a Republican-
controlled Congress cut the funding for it. But October 31st of
last year, an article in the National Journal reported that the
Office of the Director of National Intelligence is testing a
new computerized system to search very large stores of personal
information, including records of individuals' private
communications, financial transactions, and everyday activities
that looks very much like TIA.
Are you concerned that a system shut down by the Congress
is now reappearing under another form?
Mr. Barr. Very concerned, both as a former Federal
prosecutor, certainly as a former Member of this great
institution on the House side, and as a citizen concerned about
the rule of law.
I think that allowing any administration--and this
administration has shown itself to favor this, time again--to
do what it wants regardless of what Congress says, either
through an appropriations rider or through specific
legislation, it breeds contempt for the law, it breeds a lack
of credibility that cuts across the board in reducing people's
faith in government, and it leads to this further sort of
cultural suspicion.
I think it is extremely problematic and I believe that, so
long as the Congress allows the administration to do this
without either providing an overall architecture such as the
Europeans did over a decade ago, and a number of other
countries that have shown themselves much more willing than our
government to establish a framework within which proper privacy
protections can be employed and shall be employed, and yet not
harm business at all--the Swiss are a perfect example of that--
until Congress addresses this issue, the administration is
going to continue to do precisely what you put your finger on,
Mr. Chairman, and that is essentially to thumb its nose at the
Congress and do what it wants. They just call it something
different.
Chairman Leahy. The concern I have, I mean, you fly on
commercial flights, as I do, as most of us do. You have to
assume that you have some kind of a terror index score
somewhere. You have no way of finding out what that is. I have
no way of finding out what that is.
If you are a person working for a bank and you are up for
vice president or head of one of the branches or something, and
you are suddenly turned down because the bank has found this
score, you have no way of knowing what it is, do you?
Mr. Barr. This is the very pernicious nature of what is
going on here. You have no way of knowing. You have no way of
correcting it.
The particular system that you referred to, Mr. Chairman,
that has given rise to the absurd situation of the U.S. Senator
and the U.S. Congressman being halted from boarding a plane
because their name appears on some list, whether one considers
that data mining technically or not, the fact of the matter is,
it points out a major problem and a major shortcoming, a
fundamental problem in the way we allow government to operate
to do this without, as Jim correctly put his finger on, the
transparency that at least provides some knowledge and
protection for the citizen.
Chairman Leahy. Thank you. I have further questions of Ms.
Harris and others, but my time is virtually up. I will yield to
Senator Specter, then we will go, by the early bird rule, to
Senator Whitehouse.
Senator Specter. Thank you very much, Mr. Chairman.
Congressman Barr, was your privacy violated by the
interview in Borat?
Mr. Barr. In what?
Senator Specter. Borat.
Mr. Barr. I do not know. Was he an agent of the Federal
Government or not? It is a very good question that ought to be
proposed to him.
Senator Specter. Was your privacy violated?
Mr. Barr. I believe it was. Information was gathered at
that interview under false pretenses.
Senator Specter. It was an extraordinarily moving
interview. Did you have any right to stop its showing or
distribution because of the invasion of your privacy?
Mr. Barr. There may be. I know that some legal actions by
some other persons involved are being pursued. I elected not to
pursue it, believing essentially that the more one wastes time
or engages in those sorts of activities, the more publicity you
bring to something.
Senator Specter. I think that is a valid generalization. If
somebody is a Member of Congress with that kind of a high-
profile position, you sort of have to take your lumps here and
there.
Did you see the movie?
Mr. Barr. I have not. I know folks that have. The movie
that revels in nude male wrestling is not something that puts
it high on my priority list to see.
[Laughter].
Senator Specter. Well, I think the record ought to be clear
that you were not featured in any nude male wrestling.
[Laughter].
Mr. Barr. I was going to, but I appreciate the Ranking
Member indicating that.
Senator Specter. It was a sedate interview in your office
somewhere and it was a most extraordinary movie. I do not want
to hype it too much or get people to go to see it, but the
interview with you was about the only part of the movie worth
seeing, Congressman Barr.
Mr. Barr. I will take that as a compliment, Senator.
Senator Specter. Well, you should. You should. It is a
compliment.
There has been a reference made to the situation where the
Automated Targeting System has been credited with the exclusion
of an airline passenger. Proponents of ATS point to an
incident, purportedly, where ATS was used by the Customs and
Border Patrol agent in Chicago's O'Hare Airport to refuse to
allow a traveler arriving from Jordan to enter the United
States, a man named Riyib Al-Bama, who had a Jordanian visa and
a U.S. business visa when he attempted to enter the United
States, and 18 months later he reputedly--it is always hard to
find out the facts in these matters, but this is the report--
killed 125 Iraqis when he drove into a crowd and set off a
massive car bomb.
Ms. Harris, are you familiar with that reported incident?
Ms. Harris. Well, I am familiar with the allegation.
Obviously, there is no way for me to know. But let us assume
for the sake of argument that that is true.
Senator Specter. Well, now, wait a minute. I am asking you
if you are familiar with it.
Ms. Harris. Specifically with that case?
Senator Specter. Yes.
Ms. Harris. Yes. All I know is what I read. I mean, there
is no way for me to know.
Senator Specter. Well, that is about all any of us could
say.
Ms. Harris. Right. All I know is what I read.
Senator Specter. And when we go to top secret briefings, we
walk out with the same conclusion.
Ms. Harris. Exactly.
Senator Specter. All we know is what we read in the
newspapers.
Ms. Harris. Right.
Senator Specter. In your testimony, you state that unless
and until a particular application can be shown to be an
effective tool for counterterrorism, the government should not
deploy pattern-based data mining as an anti- terrorism tool.
Our hearing today is built on a very, very high level of
generalization.
Ms. Harris. Right.
Senator Specter. And later, if the Chairman has a second
round, I want to come back to a question as to, for those who
like data mining, what can you point to that it has produced?
For those who do not like data mining, what can you point to
where there has been an invasion of privacy which has been
damaging? I would like to get specifics so we can have some
basis to evaluate it.
Because we sit here and listen to high-level
generalizations. You talk about oversight. When you pursue
oversight--and I am going to be interested in the pursuit of
the Attorney General next week--it is a heavy line of pursuit
and diligent prosecutors have a hard time catching up.
But before my time goes too much further--
Chairman Leahy. I should note that I was told that there
was an error on the clock before. I thought I was within the
time and I went over the time. So, please, take what time you
need, then we will go to Senator Whitehouse.
Senator Specter. Well, I will just finish up this one
question, then yield.
When you talk about proving it to be an effective tool for
counter-terrorism, how do we make the determination as to what
is an effective tool for counter-terrorism?
Ms. Harris. Well, I think you have to get the facts. At the
moment, Congress does not have the facts. It is not for me to
say that a program is corrective because it works once or works
ten times. At some point there has to be evaluation criteria,
whether it is set in those agencies or Congress sets them.
If the information on the effectiveness has to be secret
and is shared only with Congress to make that determination,
that is fine. But even if you assume that that program is
effective, and I do so only for the sake of argument, there is
nothing that exists in that program to protect the rights of
the rest of the people, the innocent people.
There is no way that a program like that is designed where
we know, because of the level of secrecy, what the impact is.
You ask the question, what is the impact? There is a potential
that we may have caught one terrorist, and that would be a good
thing. We also do not know what the impact is on the millions
of other people who are in that system because they do not know
that they are in that system, they have no way to know they are
in that system.
So there is no reason for us to deploy these systems and
leave us in a situation where there is no due process and no
fair information practices. I mean, there are two different
questions: one, are they effective and should they deploy it at
all?
The second is, if you are going to deploy them, why do we
have to deploy them without the traditional procedural
protections that this body has imposed, fair information
practices, and the Privacy Act, in a variety of other contexts.
So you have to look at both of them. I do not think you
address the second, privacy, until you get to the first,
efficacy. But if there is, in fact, a person out there in
Senator Leahy's example who is trying to figure out why they
were fired, that person has no way to know.
Senator Specter. Well, you sort of lost me along the way.
Ms. Harris. All I am saying is--
Senator Specter. Wait a minute.
Ms. Harris. Yes.
Senator Specter. You sort of lost me along the way.
Ms. Harris. All right.
Senator Specter. Can you point out any specific instance
where data mining has resulted in somebody's demonstrable
prejudice?
Ms. Harris. Well, of course. I mean, there is demonstrable
prejudice. The only ones that we can see visibly at this point
are people being searched or people being kept off the plane.
But you have a privacy notice that specifically said, we
will share this for any other purpose with the rest of the
government, down to the local level. So people are walking
around with a risk assessment that they do not know, that is
secret, that can be shared all over the government for any
other purpose.
If they are prejudiced by that, they do not know because
nobody is going to say to them, we have now looked at your risk
assessment and that is why you did not get a security
clearance, that is why you did not get a job.
Senator Specter. If they are kept off the plane though, if
they are challenged--
Ms. Harris. If they are kept off the plane, they know they
have been kept off the plane. But nobody has said to them, we
have identified you as a high risk, and here is how you can get
out of that. There is no procedure for challenging a risks
score.
Senator Specter. But until they are kept off the plane,
when they have been prejudiced, at that juncture they have a
right to challenge it until--
Ms. Harris. They have no right to challenge it.
Senator Specter. Wait a minute.
Ms. Harris. They have no right to challenge it.
Senator Specter. Wait a minute. Wait a minute. The question
is not posed yet.
Ms. Harris. Yes, Senator.
Senator Specter. At what point is there prejudice? If they
have been kept off the plane, it has been identified, they then
have a right to challenge it. But until that time, what is
their prejudice?
Ms. Harris. Senator, I am not quite sure I agree with you
about their right to challenge it. We do not have procedures
set up for people to know their risk assessment and to be able
to go and challenge it. We do not have those procedures. You
can kind of go to TSA or whoever and try to get a response.
I do not mean to be talking past you, but if you are kept
off a plane you probably have an idea that perhaps you have a
risk assessment that is high. If that is based on data that is
inaccurate, I do not know where you go to challenge that data.
We do not have Privacy Rights Act-like privileges. These
notices specifically exclude people from those kinds of rights
in these programs. All we are arguing is, just putting efficacy
aside, that people do have those rights, that we restore them.
Chairman Leahy. I might use an example, I alluded to it in
my opening statement, of an airline pilot. I will identify him.
It is Kieran O'Dwyer. Having an Irish surname, I kind of
noticed this, notwithstanding my Italian ancestry.
But Kieran O'Dwyer of Pittsboro, North Carolina, an airline
pilot for American Airlines. In 2003, he gets off the plane and
is detained for 19 minutes on international flight because they
told him his name matched one on a government terrorist watch
list, apparently somebody from the IRA.
Over the next almost 2 years, he was detained 70 to 80
times. He talked to his Republican Senator and Democratic
Congressman and they could not get him off the list. It got so
bad, he said, Custom agents came to greet him by his first
name. But they still had to detain him because he was on the
list and he could not get off it.
So he finally, after missing numerous connecting flights
where he has to get to the next flight that he is supposed to
fly, having to pay to stay in hotels because he has missed
them, he gave up flying internationally, even though he took a
five-figure drop in his pay. He just could not do it. That is
one example, and I am sure we have many more.
Senator Whitehouse?
Senator Whitehouse. Thank you, Mr. Chairman.
Just a word on my background. Rhode Island is one of those
States in which the Attorney General has State-wide criminal
law enforcement authority, so like the Senator and the Ranking
Member I was, in effect, the DA. I was also the U.S. Attorney
for Rhode Island.
I have led and overseen undercover and confidential
investigations, so I am well aware of the critical value of
that, and also well aware of the civil liberties hazard that
that creates. It is very interesting to me to be seeking to
apply that balance in this area where there is a new and
inevitable technology that has arrived upon our society.
My question to anyone on the panel who would care to answer
it, is this. Does it make sense to look at the use of the data
mining capability in different ways depending on the different
uses of that capability?
And specifically, can we talk about two different uses
being one in which a dragnet is run through the data mine based
on a profile or based on a formulary, and as a result
individual names are surfaced and then further action ensues
with respect to those previously unknown or undisclosed names?
That would be one category of access to the data mining
capability.
The other would be taking a preexisting identified subject
of some variety, perhaps a predicated subject of some kind,
perhaps not, and running that individual name through the data
mining capability to seek for links, contacts, and other things
that would be useful in investigating the activities of that
individual.
Are those two meaningfully distinct uses of the data mining
capability, and in our deliberations should we be considering
them separately?
Ms. Harris. Mr. Whitehouse, at least from our perspective
we do think that those are differing capabilities. I mean,
there is a very interesting--I cannot remember if it is a
footnote or a page in the Markle report that shows how using
sort of existing data and starting with the two terrorists who
are on the watch list and looking for links about addresses and
a variety of things, that you might have been able to identify
all the terrorists. That, to me, is traditional law
enforcement.
Now, I understand from Dr. Carafano's view that the line
between that as technology advances, and what Mr. Harper and I
sort of refer to as predictive or pattern- based, is going to
get more muddled as technology advances. But it does offer, I
think, a useful place to make a distinction.
First of all, in the suspicion-based, you are sort of
engaged in a law enforcement activity. People get identified at
some point and action is taken that is, if not public, goes
into the law enforcement realm, procedures attach under our
laws.
In the predictive realm, we are starting with no predicate.
We are starting with no suspect. We may be starting with a set
of hypotheticals that are maybe worth testing, but then we are
literally moving towards identifying, labeling, perhaps taking
actions on people and there never is a procedure that attaches.
I think that that is a very big difference.
Senator Whitehouse. Does anyone disagree that this is a
meaningful distinction?
Ms. Harris. I think these witnesses do.
Senator Whitehouse. Congressman Barr?
Mr. Barr. Thank you, Senator. I do not disagree. I think it
is a very important distinction. I think that if, in fact,
there is information developed through legitimate intelligence
operations, for example, that a particular person is a
legitimate suspect, the government certainly needs to follow up
on that and run that person's name through in whatever
permutations there might be.
But the question or the issue that is the more fundamental
one to determine what those distinctions are and how to
proceed, is that whatever the system is, it has to pass Fourth
Amendment muster.
Data mining, the way I believe it is being used by the
government where everybody is a suspect and there is no
suspicion, reasonable or otherwise, that a person is or has
done something wrong before evidence is gathered against them,
put into, manipulated, retained and disseminated through a data
mining base, is not consistent with the Fourth Amendment and it
should not hinge, with all due respect to the Ranking Member,
on whether or not a person can show that, I have in fact been
harmed.
I think the harm is done to society generally where you
have a government that can treat all of its citizens and all
other persons lawfully in the country as suspects, gather
evidence on them, use that data to deny any particular one of
them or a group of them, a fundamental right. That, I think,
ought to be the starting point for the analysis.
Senator Whitehouse. Would you require a warrant for a
government agent to do a Google search?
Mr. Barr. No. The government does not need a warrant to do
a search of publicly available information. But in order to be
consistent with both existing laws such as the Privacy Act, and
consistent with the basic edicts of the Fourth Amendment, if
they in fact take it further steps and include information,
private information on a person in a database that is to be
mined through algorithms manipulated in some way and then
potential adverse action taken against a person, I think they
do need to consider that, and ought to.
Senator Whitehouse. This will be my last question. So in
your view, the privacy barrier that is intruded upon by this is
breached when private information goes into the data mine, not
when the name emerges from the data mine and the government
then begins to take action against an individual.
Mr. Barr. That is correct.
Senator Whitehouse. All right. Thank you, Mr. Chairman.
Mr. Taipale. Could I just address it?
Chairman Leahy. Go ahead. In fact, that is a very good
question. If anybody else wants to address, briefly, what
Senator Whitehouse asked, go ahead.
Mr. Taipale. I think the issue of trying to draw a
distinction between link and pattern analysis is very
difficult. Again, let me preface all this by saying, I am
completely in favor of privacy protection and oversight, and
all of those things.
But when you start to get into, actually, the use of these
technologies, in context, I mean, we are talking about a lot of
different things and going back and forth. So, for instance, in
the Ted Kennedy example, that is a one-to-one match. That is a
problem with watch lists. If we want to talk about watch lists,
that is a problem. There ought to be procedures to deal with
that.
Data mining in that case may actually help solve the
problem. Here, if Ted Kennedy has stopped because he's on the
watch list, but his terror score is very low because he is a
U.S. Senator--I do not know if that is true--but if he does
have a low score because he is a U.S. Senator, then that ought
to be the basis for determining--sort of using independent
models to come up with whether that is someplace to spend
resources against, as Jim said earlier.
Again, I am not in favor of any particular government
program. I am not here endorsing any particular government
program. I am merely saying that these are tools that can
allocate investigative and intelligence resources. Going back
to the premise of your question about using it in law
enforcement, we do this all the time.
The difference between looking for John Smith, or the man
in a black suit, or a man in a blue suit, or a person cashing a
check under $10,000, or whatever, we do this all the time. We
used pattern-based analyses in the IRS to select who gets
audited. We do it in the SEC and NSAD to find insider traders.
We do it in money laundering.
We do it at the borders with ICE to find drug couriers
using drug courier profiles. We use hijacker profiles. All of
those have been upheld and, quite frankly, the issue of using a
probability-based predicate is something that is not inherently
contrary to the Fourth or Fifth Amendment.
Senator Specter. Dr. Carafano, you wanted to add something?
Mr. Carafano. Yes. I do think that useful distinction in
how we address the public policy issues is distinguishing
between automating traditional law enforcement activities and
the more exotic knowledge management of information to do
predictive behaviors.
But the point I would disagree with your division is, not
all law enforcement activities begin with a suspect,
essentially. I come from a long line of cops. When a cop goes
on the street, he is collecting information every second. He is
looking for behavior that is out of place. He pulls a car over,
and everything else. That leads to a whole thing.
So, no, he is not starting with a suspect, yet he is
continually gathering freely accessible information. In a
sense, ATS is automating that. I do think that that belongs in
a separate discussion because the law there is clear. The
question is, are the checks and balances in place? Those are
not science experiments. Knowledge management is.
Chairman Leahy. Ms. Harris, did you want to add to that?
Ms. Harris. Well, I wanted to respond to the idea that this
is no different than sort of the profiling we do that has been
upheld for, for example, stopping a car under a drug profile.
That seems to be the basis for this analysis, that this is all
right under the Fourth Amendment.
First of all, it is not secret. The police stop you. They
know they have stopped you. You have an immediate opportunity
to resolve the situation. If you are an innocent person and
they have stopped you, and you have consented, there is no
long-term use of the data.
Two years later you do not show up for a job with the
Federal Government and you get a security clearance denied
because somewhere there is now a file that says they stopped
you at the Vermont border. That is more like a metal detector.
I really object to this effort to take these cases that
involve one-on-one suspicion, one-on-one record analysis from
20 years ago and try to apply them to this complex technical
environment we are in. The Supreme Court may have said it is
fine to do stops for drug profiling, but it has also said we
have to update the Fourth Amendment to take into account
technology. That is where we have fallen short. The one thing
that I hear from everybody on this committee, is that we all
think we have got to do something about the safeguards, whether
or not we think predictive data mining works.
Chairman Leahy. I smiled just briefly. In talking about
being stopped down at the Vermont border, I was actually
stopped a few years ago. It was a huge stop. They were stopping
everybody. I drive back from Vermont about once a year, usually
after the August recess, my wife and I. About 100-some-odd
miles from the Canadian border, here is this big stop. I had
license plate one on the car.
They asked for identification and I was a little bit
annoyed and showed them my Senate ID that says I am a U.S.
Senator. But they asked, do I have proof of citizenship. I
said, you may want to check the Constitution.
[Laughter].
Anyway, I digress. Not that it annoyed me; I still remember
it like it was yesterday.
Today, as you said, Ms. Harris, it is something that could
be resolved right there. Today we read that the Department of
Defense has agreed to alter the uses of a database with
information on high school and college students and they have
agreed to alter that.
I wish they had done it because of questions being asked by
Members of Congress. They did it because they got sued. I will
include in the record information on that settlement, including
the filing in the Federal Register yesterday amending this
government information system.
Senator Specter, did you have anything further? Otherwise I
was going to keep the record open so that Senators on both
sides could submit anything they wanted to.
Senator Specter. Well, thank you, Mr. Chairman. Just one
comment. I do not think that I have any disagreement with
Congressman Barr with respect to probable cause if there is
going to be, as he puts it, an adverse action. I think that is
true. But within the range of investigative tools, if there is
no adverse action, as Congressman Barr says, and there is no
specific prejudice to the individual, then I think there is
latitude for law enforcement to look for patterns.
If you put together the 9/11 hijackers, for example, and
you have connecting points where they entered about the same
time, where they used the same banks, where they go to the same
flight schools and do it in a confidential way where there is
no disclosure, they have no prejudice and not saying anything
adverse about it and doing it in a confidential, discreet way--
Congressman Barr used to be a prosecuting attorney. It is a
popular background. It gives you a lot of insights into
investigative techniques and protection of civil liberties.
That is one of the prosecutor's fundamental duties. He is
quasi-judicial, to be sure that civil rights are not violated.
But it is a very complex field and it is hard to put your
arms around it. It is really hard to figure out exactly where
it is going. When we have open sessions, you see on C-SPAN how
little we find out, and the sessions you saw which were closed,
how little we find out, you would be amazed. Congressman Barr
knows. He has been in a lot of them. This 407 on the Senate
side, and the House has its own side.
But we have to pursue the matters and we have to keep
various Federal agencies on their toes, and give them latitude,
but expect them to respect rights. So, thank you, Mr. Chairman.
Chairman Leahy. Well, thank you. Thank you, Senator
Specter. We will have more hearings on it.
I also want to thank the panel. I know that you spent a lot
of time preparing for this. It seems like, kind of zip in, zip
out. This is important. It is important to this committee.
I worry very much about this privacy matter. We Vermonters
just naturally have a sense of privacy, but I think most
Americans, too. We want to be secure. But at some point,
especially in an interconnected age of the Internet and
everything else, when mistakes are made, they are really bad
mistakes.
The worst mistakes are those when you do not know a mistake
has happened, but it affects everything from your credit rating
to your job. It is not what America is about. We talk about
connecting the dots with the people in the flight school.
Unfortunately, the FBI had all that information. They just
chose not to act on it, and we had 9/11.
Thank you all very much. We stand in recess.
[Whereupon, at 10:45 a.m. the hearing was concluded.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files, see Contents.]
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ADDITIONAL SUBMISSIONS FOR THE RECORD
Hanson et al. vs. Rumsfeld, 2006; Case No. 06 CV 3118;
Judicial Case Files; United States District Court Southern
District of New York, Complaint; New York City.
Hanson et al. vs. Rumsfeld, 2007; Case No. 06 CV 3118;
Judicial Case Files; United States District Court Southern
District of New York, Stipulation of Voluntary Dismissal
Pursuant to F.R.C.P. 41(a)(1)(ii); New York City.
Taipale, A. K. ``Technology, Security, and Privacy: The
Fear of Frankenstein, The Mythology of Privacy, and The Lessons
of King Ludd.'' Yale Journal of Law and Technology. 7 Yale J.L.
& Tech. 123; 9 INTL. J. Comm. L. & Pol'y 8. (Dec. 2004).
United States. Office of the Secretary of Defense. The
Privacy Act of 1974 Notice to Amend Systems of Records. January
9, 2007.
United States. Department of Homeland Security. Report of
the Department of Homeland Security Data Privacy And Integrity
Advisory Committee: Framework for Privacy Analysis of Programs,
Technologies, and Applications Report No. 2006-01. Adopted
March 7, 2006.