Senators pledge scrutiny of federal data mining

By devoting the first Senate Judiciary Committee hearing of the new year to the topic, incoming Chairman Patrick Leahy said he wanted to put the Bush administration on notice: Congress will no longer stand idle while the executive branch continues an "unchecked explosion" in computerized sifting of huge volumes of sensitive personal information, he said. But Leahy and his colleagues said they were interested in collecting information on data mining, not banning the practice.

"Congress is overdue in taking stock of the proliferation of these databases that increasingly are collecting more information about each and every American," the veteran senator from Vermont said. Leahy added that he plans a series of hearings on privacy-related issues during the upcoming congressional session.

According to a 2004 government report (PDF), at least 52 federal agencies are operating or devising at least 199 different data-mining programs. Citing those figures, Leahy said he believed such activities--frequently justified in the name of combating terrorism--may have value but "often lack adequate safeguards to protect privacy and civil liberties."

Congressional skepticism of government data-mining projects by Democrats and Republicans alike is nothing new. In January 2003, the Senate voted unanimously to restrict a Pentagon data-mining program known as Total Information Awareness--which proposed linking databases from sources such as credit card companies, medical insurers and motor vehicle agencies in an effort to snag terrorists--because of privacy concerns.

In an attempt to step up oversight, Russ Feingold (D-Wis.), along with Leahy, Daniel Akaka (D-Hawaii) and John Sununu (R-N.H.), plan to jointly reintroduce on Wednesday a legislative proposal called the Federal Agency Data Mining Reporting Act. Feingold proposed nearly identical versions in both 2003 and 2005, but they died without a floor vote.

The bill would require the heads of all federal agencies engaged in data mining to submit a report on numerous aspects of the operation. These would include its goals, the data sources and technology used, an assessment of its expected effectiveness and an explanation of its potential privacy impact on individuals. That report is supposed to be updated "not less frequently than annually" and made public, according to the bill. However, the agencies have the option of submitting a classified "annex" that may be available only to certain congressional committees.

At Wednesday's hearing, Feingold said he hoped "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."

In the papers
Leahy said his renewed push for oversight has been fueled in part by press reports, which have shed light on a number of recent examples of troubling data-mining regimes.

Perhaps most recently, the Washington Post reported that through a system known as OneDOJ, the Department of Justice has amassed more than a million case records, including incident reports and interrogation summaries reports involving people who have not been formally charged or convicted. Before that, the Department of Homeland Security published a notice indicating it has been using data mining to compile "risk assessments" on travelers to the United States, as part of a cargo-screening program known as the Automated Targeting System. A department official has said publicly that the effort has been mischaracterized and is not invasive to privacy.

On Wednesday, Leahy asked a panel of invited witnesses whether they could point to any scientific study making a case for data mining. In their testimony, the five witnesses--representatives of think tanks and advocacy groups-- all voiced at least some degree of support for increased checks on government data-mining ventures.

None of the panelists could come up with an answer, although James Carafano, a research fellow with the conservative Heritage Foundation, said "behavior science modeling is a rapidly developing field."

Jim Harper, director of information policy studies at the free-market Cato Institute and an adviser to Homeland Security's privacy office, took a dimmer view of the practice. He argued that data mining could never be a useful tool because inevitably high "false-positive" rates would subject too many innocent Americans to undue scrutiny and violate their privacy.

Sen. Arlen Specter, the outgoing Republican chairman of the Judiciary Committee, said he agreed with the need "to keep the various federal agencies on their toes," but saw no need to be overly restrictive of data mining.

"Within the range of investigative tools, if there is no adverse action, if there's no specific prejudice to the individual, then I think there is latitude for law enforcement to look for patterns (in data)," the Pennsylvania senator and former prosecutor said.

The new Democratic majority's interest in upping its checks on Bush administration antiterrorism policies has not been limited to the Senate this week.

The House of Representatives on Tuesday evening voted 299-128 to approve what is intended to be heightened independence for the two-year-old Privacy and Civil Liberties Oversight Board, which is charged with advising the White House on such matters and only recently held its first public meeting.

The proposal, should it be approved by the Senate and signed by the president, would remove the five-member board from the president's office, making it an independent agency; grant it subpoena power; require that all of its members, not just its chairmen, be confirmed by the Senate; and require it to submit periodic reports on its findings, among other things.

The 277-page legislative package in which the proposal is embedded, however, has proved controversial and may not sail so easily through the Senate. Democrats have portrayed the first item on their 100-hours agenda as an attempt at implementing the 9/11 Commission's recommendations on issues like aviation security and emergency communications once and for all, but critics have said the proposal is nothing more than an unfunded political move.