FC: Senate should ask FBI nominee Mueller about privacy, EPIC says

From: Declan McCullagh (declanat_private)
Date: Fri Jul 27 2001 - 10:53:21 PDT

  • Next message: Declan McCullagh: "FC: Feds refuse to "Free Dmitry"; ACM letter to publishers"

    Robert Mueller, FBI director-designate, will be before the Senate Judiciary 
    committee on Monday. EPIC's letter is a worthy effort to raise the topic of 
    privacy, and will (I hope) get Mueller's views in the public record.
    
    EPIC's Marc Rotenberg correctly says that as the first FBI director of the 
    21st century, Mueller will have access to more sophisticated surveillance 
    technologies than his predecessors. (Carnivore may get the most attention, 
    but I'm more concerned about automated face recognition systems, and I hope 
    that comes up on Monday.)
    
    Background on Robert Mueller, FBI director-designate:
    http://www.politechbot.com/p-02233.html
    
    Senate hearing notice:
    http://judiciary.senate.gov/hr073001f.htm
    
    Politech archive on Carnivore:
    http://www.politechbot.com/cgi-bin/politech.cgi?name=carnivore
    
    Politech archive on Kyllo decision:
    http://www.politechbot.com/cgi-bin/politech.cgi?name=kyllo
    
    -Declan
    
    *********
    
    Date: Fri, 27 Jul 2001 13:31:25 -0400
    To: Declan McCullagh <declanat_private>
    From: David Sobel <sobelat_private>
    Cc: Marc Rotenberg <rotenbergat_private>, sobelat_private
    
        ==============================================================
    
    
                     [Electronic Privacy Information Center]
    
    
    
    July 26, 2001
    
    Sen. Patrick J. Leahy, Chairman
    Sen. Orrin G. Hatch, Ranking Member
    Senate Judiciary Committee
    United States Senate
    224 Dirksen Office Building
    Washington, DC 20510
    
          Re: Nomination of Robert S. Mueller
    
    Dear Chairman Leahy, Senator Hatch and
    Members of the Senate Judiciary Committee:
    
    As the Committee prepares to consider the nomination of Robert S.
    Mueller to be Director of the Federal Bureau of Investigation (FBI),
    we are writing to urge the Committee to include privacy protection and
    compliance with the Freedom of Information Act (FOIA) in its inquiry.
    As we set forth below, these issues include FBI use of new surveillance
    and investigative technologies, including the Carnivore system; FBI
    access to personal information contained in private sector databases;
    and full and timely compliance with the disclosure requirements of the
    FOIA.
    
    New Technologies
    
    Given the increased public concern over the use of new and potentially
    invasive technologies by law enforcement agencies, it would be
    appropriate to solicit Mr. Mueller's views on this issue. While the
    FBI's use of the Carnivore Internet surveillance system properly has
    been the subject of much public discussion, other technologies
    increasingly are being employed by the FBI and the law enforcement
    community. These include video surveillance systems, sophisticated
    imaging devices and a wide range of biometric applications such as
    facial recognition and retinal scans.
    
    As the Supreme Court recently recognized in Kyllo v. United States,
    533 U.S. ____ (2001), "[i]t would be foolish to contend that the
    degree of privacy secured to citizens by the Fourth Amendment has been
    entirely unaffected by the advance of technology." When law
    enforcement employs invasive technology that is not in "general public
    use," it must do so in a manner that "assures preservation of that
    degree of privacy against government that existed when the Fourth
    Amendment was adopted." In light of the Kyllo decision, we believe it
    is imperative that Mr. Mueller address this issue, which he will
    clearly confront as Director of the FBI.
    
    With respect to the Carnivore system (now designated within the Bureau
    as DCS 1000), many questions remain unanswered since the FBI's use of
    the system came to light over a year ago. Through our pending FOIA
    litigation concerning Carnivore, it appears that neither the FBI nor
    the Justice Department conducted an analysis of the legality or
    constitutionality of the surveillance technique prior to its
    deployment. Despite the fact that the independent technical review
    team retained by the Justice Department recommended modifications to
    Carnivore last December, those changes have not yet been implemented.
    In addition to the recommendations of the technical review team, EPIC
    and other privacy groups have urged Attorney General Ashcroft to cure
    Carnivore's fundamental constitutional defect by placing the system in
    the control of the relevant Internet service provider rather than the
    FBI. While the Attorney General recently announced that a new review
    of Carnivore is now underway, we believe that Mr. Mueller's views on
    this matter should be explored.
    
    Access to Private Sector Databases
    
    One of the most troubling law enforcement developments to arise in
    recent years is the increased reliance of investigative agencies on
    personal information contained in databases compiled by the private
    sector. Through their access to these systems, the FBI and other
    agencies routinely obtain a vast range of personal data, the direct
    collection of which would appear to be prohibited by the Privacy Act
    of 1974. As the Wall Street Journal reported earlier this year,
    private data vendors "specialize in doing what the law discourages the
    government from doing on its own -- culling, sorting and packaging
    data on individuals from scores of sources, including credit bureaus,
    marketers and regulatory agencies." (See attached article).
    
    One such company, ChoicePoint, Inc., has a particularly close
    relationship with the FBI. The company maintains a specialized
    website, "ChoicePoint Online for the FBI" (www.cpfbi.com), to process
    data queries from the Bureau. Last year, the Justice Department's
    contract with the company reportedly grew to $8 million. We urge the
    Committee to seek Mr. Mueller's opinions on the propriety of such
    arrangements.
    
    FOIA Compliance
    
    As frequent users of the Freedom of Information Act, we have a
    particular interest in Mr. Mueller's familiarity with and commitment
    to the Act's disclosure requirements. The FBI's problems with FOIA
    compliance are legendary, and it is not at all uncommon for
    information requests to languish at the Bureau for many years.
    
    The FBI's resistance to public disclosure and oversight appears to be
    deeply ingrained. Norman J. Rabkin of the General Accounting Office
    recently testified before this Committee concerning the GAO's
    experience with the Bureau.
    
          While over time we have experienced access-to-records problems at
          different federal agencies, our experience at the FBI is by far
          our most contentious among law enforcement agencies. The FBI's
          reluctance to consistently honor our statutory rights of access
          has forced us to expend significant energy and resources. The FBI
          has also limited our ability to respond to our clients --
          congressional committees and individual Members of Congress -- in
          a timely and efficient way.
    
    Prepared Statement of Norman J. Rabkin, General Accounting Office, Before
    the Senate Judiciary Committee, June 20, 2001.
    
    When the GAO has such problems, the Committee can well imagine the
    difficulty that average citizens, journalists and public interest
    organizations encounter when attempting to utilize FOIA's access
    provisions to learn about FBI activities. As Director of the Bureau,
    Mr. Mueller would be uniquely situated to remedy this chronic
    deficiency. We strongly urge the Committee to elicit a commitment from
    Mr. Mueller to address this issue quickly and decisively.
    
    We appreciate your consideration of the foregoing suggestions and
    would be pleased to assist the Committee in its ongoing oversight of
    the FBI.
    
    
    Sincerely,
    
    
    Marc Rotenberg                  David L. Sobel
    Executive Director              General Counsel
    
    
    Enclosure:
    
    "If the FBI Hopes to Get the Goods on You, It May Ask ChoicePoint,"
    Wall Street Journal, pg. 1, April 13, 2001.
    
    cc: Members of the Senate Judiciary Committee
    
    
    
    -------------------------------------------------------------------------
    POLITECH -- Declan McCullagh's politics and technology mailing list
    You may redistribute this message freely if you include this notice.
    To subscribe, visit http://www.politechbot.com/info/subscribe.html
    This message is archived at http://www.politechbot.com/
    -------------------------------------------------------------------------
    



    This archive was generated by hypermail 2b30 : Fri Jul 27 2001 - 11:04:06 PDT