FC: Request: Sign on letter on accuracy in FBI's criminal database

From: Declan McCullagh (declanat_private)
Date: Tue Apr 01 2003 - 07:22:13 PST

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    Date: Mon, 31 Mar 2003 17:55:58 -0500
    To: Declan McCullagh <declanat_private>
    From: Marc Rotenberg <rotenbergat_private>
    Subject: SIGN-ON LETTER: Require Accuracy for NCIC
    
    Declan -
    
    Could you please forward to politech?
    
    Marc.
    
    
    
    (Please forward until April 6, 2003)
    
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                       JOINT LETTER AND ONLINE PETITION
        Require Accuracy for Nation's Largest Criminal Justice Database
                         [www.epic.org/actions/ncic/]
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    - Support Needed for Letter Concerning Accuracy Requirements for
       National Crime Information Center record system (NCIC)
    
    - Organizations are asked to sign joint letter to OMB
       by April 7. Send email to ncic-petitionat_private
    
    - Individuals may sign petition online at:
          http://www.petitiononline.com/ncic/petition.html
    
    CONTENTS
    
    [1] Summary - Require Accuracy for NCIC
    [2] Joint Letter for Organizations
    [3] Online Petition for Individuals
    [4] References - DOJ Information on NCIC
    
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    [1] SUMMARY
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    Last week the Justice Department administratively discharged the FBI
    of its statutory duty to ensure the accuracy and completeness of the
    over 39 million criminal records it maintains in its National Crime
    Information Center (NCIC) database.  This action poses significant
    risks to privacy and effective law enforcement.
    
    The NCIC system provides over 80,000 law enforcement agencies with
    access to data on wanted persons, missing persons, gang members, as
    well as information about stolen cars, boats, and other information.
    The Privacy Act of 1974 requires the FBI to make reasonable efforts
    to ensure the accuracy and completeness of the records in the NCIC
    system.  Now, the Justice Department has exempted the system from
    the accuracy requirements of this important law.
    
    We believe it is particularly important to ensure that Privacy Act
    obligations are applied to government record systems as the
    government considers dramatic expansion of record-keeping systems
    and the incorporation of private sector databases that are
    frequently inaccurate and unreliable.
    
    ORGANIZATIONS:
    
       Please send email to ncic-petitionat_private with
        - Name
        - Title
        - Affiliation
        - Email and phone numbers
    
    The deadline for signing on is Thursday, April 7, 2003 by 6 p.m.
    
    INDIVIDUALS:
    
       To sign on, go to
         http://www.petitiononline.com/ncic/petition.html
    
    The NCIC is a critical database in the federal government.
    The Privacy Act data quality obligations should be preserved.
    
    Marc Rotenberg, EPIC Executive Director
    Kerry Smith, EPIC IPIOP Fellow
    
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    [2] JOINT LETTER -
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    Mitchell E. Daniels, Jr.
    Director, Office of Management and Budget
    725 17th Street, NW
    Washington, D.C. 20503
    
    Dear Mr. Daniels:
    
    We are writing to request that the OMB exercise its oversight
    responsibilities under 5 U.S.C. §552 by reviewing and revising the
    FBI's recent rule exempting the National Crime Information Center
    (NCIC) system from the accuracy requirements of the Privacy Act of
    1974. [1]
    
    The NCIC database provides over 80,000 law enforcement agencies with
    access to a computerized network of more than 39 million records
    regarding criminal activity. For the past thirty years, the FBI has
    operated the NCIC database with the Privacy Act accuracy requirement
    in place.  The relevant provision requires that any agency that
    maintains a system of records, "maintain all records which are used
    by the agency in making any determination about any individual with
    such accuracy, relevance, timeliness, and completeness as is
    reasonably necessary to assure fairness to the individuals in the
    determination." [2]  Circumventing that statutory obligation poses
    significant risks not only for citizens whose record files may be
    part of this data system, but also for communities that rely on law
    enforcement to employ effective, reliable tools for ensuring public
    safety. Accordingly, the OMB should request that the FBI continue to
    follow the obligations of the Privacy Act.
    
    The NCIC database was first established by the FBI, under the
    direction of J. Edgar Hoover, in 1967.  The purpose for maintaining
    the system is to facilitate the quick exchange of information about
    crimes and criminal activities between various law enforcement
    agencies.  The FBI recently spent $182 million to modernize the data
    system.  It now provides law enforcement agencies with instant
    access to fingerprinting and mugshot images.  It also continues to
    include information on stolen vehicles and other articles; persons
    with outstanding felony and misdemeanor warrants; missing persons;
    suspected gang members; suspected terrorists; and individuals'
    arrest records.
    
    NCIC is used by a broad range of criminal justice agencies, from top
    federal law enforcement officials to municipal police. During its
    first year of implementation, approximately 2 million inquiries were
    processed. Since then, its use has grown significantly. In March
    2002, the FBI set a new record for inquiries processed in one day,
    responding to 3,295,587 requests.  On average, there are 2.8 million
    transaction processed each day, with an average response time of
    0.16 second.  As a result, any error in the NCIC database can spread
    across the country in less than a second. [3]
    
    Several well publicized incidents demonstrated the consequences of
    inaccurate and incomplete information in the NCIC. In one case, a
    Los Angeles man was arrested five times, three at gun point, due to
    an error in the NCIC. [4] In another, a Phoenix resident, who was
    pulled over for driving the wrong way down a one-way street, was
    arrested after an NCIC inquiry erroneously revealed an outstanding
    misdemeanor arrest warrant that had been quashed weeks earlier. [5]
    These incidents, and others like it, reveal the potential harms that
    individual citizens may face if the records in the NCIC database are
    not accurate.  These incidents demonstrate that the FBI should work
    to improve the accuracy of this system of records, rather than
    administratively exempt itself of this important duty.
    
    Indeed, one of the major purposes behind the enactment of the
    Privacy Act was to guard against these harms by establishing
    standards for the quality of data the government collects about
    individuals. In passing the Act, Congress found that "the
    opportunities for an individual to secure employment, insurance, and
    credit, and his rights to due process, and other legal protections
    are endangered by the misuse of certain information systems," and
    therefore "it is necessary and proper for the Congress to regulate
    the collection, maintenance, use and dissemination of information by
    such agencies." [6]  To that end, Congress passed the Act to ensure,
    among other things, that any information held in government would be
    "current and accurate for its intended use." [7]
    
    Since the passage of the Privacy Act thirty years ago, there has
    been general agreement that the  FBI would go forward with the NCIC
    database, provided that it comply with the Act’s obligations.  Now,
    the FBI effectively seeks to sever that agreement, suddenly
    asserting that "it is impossible to determine in advance what
    information is accurate, relevant, timely and complete." [8]  This
    is a sharp, historical departure.  The Privacy Act should continue
    to operate for this important set of records.
    
    The obligations of the Privacy Act are important not only for the
    individuals who may have records in the NCIC database, but also for
    the effectiveness of the data system itself as a law enforcement
    tool.  In Arizona v. Evans, the Supreme Court held that the Fourth
    Amendment's exclusionary rule did not require the suppression of
    evidence obtained during an arrest that was based upon false
    information in the NCIC database.  Justice O'Connor, writing in
    concurrence, asserted that it would be unreasonable, however, for a
    police department to depend upon a record keeping system that has no
    accuracy safeguards and routinely leads to false arrests. [9] She
    said that if the police blindly relied on a data system without
    adequate mechanisms to ensure its accuracy, then courts could
    prohibit the use of any evidence obtained in an arrest resulting
    from erroneous information in the database.  In the case before the
    Court, O'Connor believed that the police department's reliance on
    NCIC was reasonable.  Nevertheless, she indicated that if procedures
    were not in place to help ensure the accuracy of the data, evidence
    collected during those arrests could be suppressed.  Her concurrence
    underscores how the Privacy Act's data quality requirements serve as
    an important mechanism for ensuring the legitimate, effective use of
    the NCIC database for law enforcement activities.  The FBI's
    unilateral decision to exempt this data system from the accuracy
    obligations of the Privacy Act puts criminal justice agencies at
    risk of unreasonably relying on inaccurate, incomplete information.
    
    Given the risks inaccurate NCIC data poses to both individual
    citizens and law enforcement agencies, the F.B.I. should continue to
    comply with the obligations of the Privacy Act.  We ask that the OMB
    evaluate the effect of the FBI's rule on the rights of individuals,
    pursuant to 5 U.S.C. §552a(r), and request that the FBI rescind its
    decision to exempt the NCIC database from the obligations of the
    Privacy Act.
    
    
    Sincerely,
    
    
    cc.	The Honorable Susan M. Collins, Chair, Senate Governmental
    	Affairs Committee
    	The Honorable Joseph I. Lieberman, Ranking Member, Senate
    	Governmental Affairs Committee
    	The Honorable Thomas M. Davis, Chair, House Government
    	Reform Committee
    	The Honorable Henry A. Waxman, Ranking Member, House
    	Government Reform Committee
    
    
    [1] This final rule also exempts the Central Records System and National
         Center for the Analysis of Violent Crime systems from accuracy
         requirements of the Privacy Act.  Privacy Act of 1974; Implementation,
         68 Fed. Reg. 14140 (Mar. 24, 2003) (to be codified as 28 C.F.R. pt. 16).
    [2] 5 U.S.C. §552a(e)(5).
    [3] See Arizona v. Evans, 514 U.S. 1, 28 (1995) (Ginsburg, J., dissenting).
    [4] See Rogan v. Los Angeles, 668 F. Supp. 1384 (C.D. Cal. 1987).
    [5] See Arizona v. Evans, 514 U.S. 1 (1995).
    [6] Congressional Findings and Statement of Purpose, Pub. L. No. 98-21,
         §2(a)(3) & (5) (1974)
    [7] Id. at §2(b)(4).
    [8] 68 Fed. Reg. at 14140.
    [9] See Evans, 514 U.S. at  16-17.
    
    
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    [3] ONLINE PETITION -
    ---------------------------------------------------------------------
    
    Mitchell E. Daniels, Jr.
    Director, Office of Management and Budget
    725 17th Street, NW
    Washington, D.C. 20503
    
    Dear Mr. Daniels:
    
    We strongly oppose the Justice Department's recent decision to lift
    the Privacy Act requirement that the FBI ensure the accuracy and
    completeness of the over 39 million criminal records it maintains in
    its National Crime Information Center (NCIC) database.  This action
    poses significant risks to both privacy and effective law
    enforcement.
    
    Over 80,000 law enforcement agencies have access to the NCIC system.
    The database includes records on wanted persons, missing persons,
    gang members, citizen arrest records, as well as information about
    stolen cars, boats, and other information. The Privacy Act of 1974
    requires the FBI to make reasonable efforts to ensure the accuracy
    and completeness of the records in the NCIC system.  Now, the
    Justice Department has exempted the system from the accuracy
    requirements of this important law.
    
    There have been several well publicized cases of innocent persons
    being subject to false arrest due to inaccurate information in the
    NCIC system. The Supreme Court has also expressed concern about
    reliance on inaccurate records in the NCIC.
    
    We believe it is particularly important to ensure that Privacy Act
    obligations are applied to government record systems as the
    government considers dramatic expansion of record-keeping systems
    and the incorporation of private sector databases that are
    frequently inaccurate and unreliable.
    
    The FBI should work to improve the accuracy and accuracy of the
    NCIC, rather than exempt itself from its well established legal
    obligations. We urge the OMB to exercise its oversight
    responsibility and require the Justice Department to comply with the
    Privacy Act obligations for the NCIC. The Privacy Act should continue
    to govern the maintenance and use of this important law enforcement
    database.
    
    
    Sincerely,
    
    [Individuals]
    
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    [4] REFERENCES
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    DOJ Information on NCIC:
    
    The FBI National Crime Information Center (NCIC) 2000
    http://www.fbi.gov/hq/cjisd/ncic.htm
    
    FBI Announces the Implementation of NCIC 2000, July 15, 1999
    http://www.fbi.gov/pressrel/pressrel99/ncic2000.htm
    
    NCIC and the Freedom of Information Act
    http://foia.fbi.gov/ncic552.htm
    
    U.S. Department of Justice, NCIC 2000 Newsletters
    http://permanent.access.gpo.gov/lps3213/pdinfo.htm
    
    The Investigator, National Crime Information Center: 30 Years on
    the Beat, Dec. 1996-1997 Issue, available at the FBI Library
    http://permanent.access.gpo.gov/lps3213/ncicinv.htm
    
    U.S. Department of Justice, Use and Management of Criminal
    History  Record Information: A Comprehensive Report, 1993.
    http://www.ojp.gov/bjs/pub/pdf/cchuse.pdf
    
    Additional Information on NCIC:
    
    Federation of American Scientists, NCIC Information
    http://www.fas.org/irp/agency/doj/fbi/is/ncic.htm
    
    The Associated Press, Justice Department  Lifts FBI Database Limits
    http://abcnews.go.com/wire/Politics/ap20030324_2121.html
    
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