more on Coalition Letter on 9/11 and Civil Liberties

[David Farber <dave () farber net>]

Begin forwarded message:

From: Marc Rotenberg <rotenberg () epic org>
Date: October 6, 2004 1:01:30 PM EDT
To: Dave Farber <dave () farber net>
Subject: Coalition Letter on 9/11 and Civil Liberties

Dave -

In the spirit of a balanced debate, could you please post the
following to IP?

In the rush to enact the recommendations of the 9/11 Commission,
there are a lot of unanswered questions about the protection of
privacy and civil liberties. These concerns are shared by many
organizations across the United States.

Regards,

Marc Rotenberg

-----------------

October 4, 2004

To the Members of Congress.

We write to you on behalf of a broad and diverse coalition of state
and national organizations who actively support privacy, civil
liberties and immigration rights to express our views on
Congressional efforts to implement the recommendations of the 9/11
Commission Report.

The Commission pursued an important investigation of the conditions
that contributed to the failure to prevent the attacks of September
11, 2001. As Congress works to provide our nation with better
protection from terrorist attacks, it is equally important to ensure
that our civil liberties are well protected. Indeed, respect for
civil liberties is what distinguishes us from those who would seek
to impose their values through terrorist acts. We ask you to
consider our views and suggestions as you move forward.

1) Oversight and Limits on Authority -- It should not be left to the
President alone to establish privacy safeguards for information
sharing.  Congress has a critical oversight role. The appointment of
Privacy and Civil Rights and Civil Liberties Protection Officers for
each federal department would help ensure compliance with those
safeguards. The effectiveness of these positions will be based on
how independent they are to investigate and to make recommendations
to the Inspector General and/or the Department of Justice regarding
their findings.  Routine public reporting should also be established
to ensure that the public is able to evaluate the costs and benefits
of information sharing with the federal government.

There should be a mechanism for individuals or groups to file civil
or criminal complaints against domestic intelligence gathering
agencies for alleged abuse of privacy, civil rights, or civil
liberties by employees, contractors or contract employees. To be
effective, a Privacy and Civil Liberties Oversight Board must be
independent of the executive branch.  It must have a budget
sufficient to fund its work with appropriate congressional review
and oversight.  However, unlike the membership of the recently
created President's Board on Safeguarding Americans' Civil
Liberties, members should include representatives from outside of
the federal government with advocacy experience in safeguarding
privacy, civil rights, and civil liberties.

2) Identification Requirements and Limits on Travel -- Some steps
should be taken to reduce the risk of fraud and identity theft.
Identification documents should be made more secure.  But, we oppose
actions taken in response to the Commission Report that would create
a national identification system in word or effect. The integration
of secure identity cards with interconnected databases raises
substantial privacy risks that will require new legislation and new
forms of oversight.  Privacy enhancing techniques that minimize the
collection and use of personally identifiable information should
also be considered.  Significant errors have been found in both the
no-fly watchlists and the automatic selectee system. This is a
particularly serious problem for U.S. persons who travel within the
United States. Recent reports that a U.S. Senator and Member of
Congress were detained due to these passenger screening measure begs
the question, "how are ordinary citizens faring?"

Federal law should expressly prohibit profiling of citizens or
groups based on race, citizen's country of origin, ethnicity or
religious beliefs. We support efforts to target individuals who may
be carrying weapons or materials that threaten the safety of air
travel.  This is a more effective security technique than profiling
or data mining.  When considering the application of biometric
features into identification documents, Congress should consider
their privacy and civil liberty implications.  There should be an
independent evaluation of how best to operate these screening
systems and still safeguard basic rights.

A properly designed identification systems or travel systems to
ensure security of the borders should not provide the basis for
routine identification within the United States.  Therefore we
caution against the establishment of travel checkpoints within the
United States that would require individuals to prove their identity
to gain access to public transportation.  Such proposal would
conflict with our basic rights to freedom of movement and civil
liberties. Furthermore, citizens who do not possess these documents
should not be barred from travel, access to federal benefits, or be
denied any citizenship rights.

3) Accountability- The Executive Branch has the responsibility of
justifying the continued use of the PATRIOT Act authorities.  In
light of the Presidential Executive Order establishing new policy
regarding the design and use of information systems and the
dissemination of information among agencies, caution should be taken
to create appropriate internal agency checks that provide
congressional oversight and judicial review on these changes in
federal agency information policy to offer institutional protection
of privacy, civil rights, and civil liberties of residents. To
remain consistent with the goal of protecting privacy, civil rights
and civil liberties it would be prudent to establish within federal
agencies sufficient autonomy in regulatory authority to monitor,
identify and stop inappropriate use of private or public networks,
data mining resources, or other digital resources that access
personal information on individuals.

Furthermore, any system that is proposed that would link or access
information from government and/or private computer networks should
be subject to review and audit by independent authority that is
charged with reporting to the public and to Congress its findings.
Further, agencies should make reports to Congress and take public
comment on the consequences of using private sources of information
to facilitate their mission. Private information brokers that
provide information to government should be required by federal
contract to abide by the Privacy Act and fair information practices.

4) Transparency -- Streamlining the oversight of intelligence
agencies is sensible, but Congressional intelligence committees have
a tradition of secrecy and extensive classification that may
frustrate public oversight and press reporting on matters of
national interest.  Therefore, in conjunction with the creation of
any new department or agency charged with expanded or consolidation
of surveillance authority, there must be a corresponding commitment
to openness and public participation.  In addition, each agency or
department should have a Freedom of Information Act Officer to
respond to requests from the public on the work of the agency. We
endorse the recommendation of the Commission that the President
disclose in the annual federal budget "the overall amounts of money
being appropriated for national intelligence and to its component
agencies" to increase transparency and accountability to the public.

5) Internal Checks of Power -- The 9/11 Commission report does not
mention the Federal Whistleblower Protection Act that helps ensure
effective federal oversight. In addition, senior intelligence staff
in any oversight entity that is created must have the ability to act
without fear of reprisals. They should be free to communicate with
Congress and make appropriate referrals to the Inspector General for
investigation of misconduct by employees or contract workers of that
agency.

6) Clarification-There must be a clear statutory definition of the
words "terrorism," and "terrorist," as well as the phrase "terrorist
organization." Without clear definitions, these designations could
be misused, such as in the past when the word "subversive" was used
to justify actions taken against some civil rights activists, civil
liberty groups and others who were engaged in lawful pursuits.

The creation of new government authority without the counterbalance
of accountability is inconsistent with the American form of
government. Congress should, in advance of establishing any National
Intelligence Authority or similar intelligence authority, enact
criminal and civil statutory disincentives to discourage abuse and
misuse of information resources, and to protect privacy, civil
rights, and civil liberties. The implementation of such a system
must include structural checks and balances to preserve
Constitutional safeguards.

In Congress' efforts to act quickly to address the Commission's
recommendations there may be unintended negative consequences for
privacy and civil liberties. Congress should be mindful of the known
failure of current information sharing schemes to secure this nation
against terrorist attacks, which have been deployed at the cost of
civil rights and civil liberties.

We encourage you to hold more hearings on these issues and to
solicit input from the many organizations who have worked to
safeguard political rights so that these and other concerns can be
thoroughly explored as you consider the 9/11 Commission's
recommendations.

The unique brand of democracy that this nation enjoys has
demonstrated resilience and fortitude in extremely trying and
troubling times during its 228 years of existence. Sometimes our
government has inadvertently or unwisely intruded on the civil
rights and civil liberties that we all hold so dear, and has been
obliged to redress those wrongs later. We ask Congress to use its
deliberative authority to craft new legislation that is based on our
democratic values. We believe that this nation can achieve effective
security without sacrificing our civil liberties or privacy.

Sincerely,

American Arab Anti Discrimination Committee
American Association of Law Libraries
American Civil Liberties Union
American Friends Service Committee
American Immigration Lawyers Association
American Library Association
Americans for Religious Liberty
Arab American Institute USA
Asian American Legal Defense and Education Fund
Association of Research Libraries
Bill of Rights Defense Committee
Consumer Action
Drug Policy Alliance
Electronic Frontier Foundation
Electronic Privacy Information Center
Fairfax County Privacy Council
First Amendment Foundation
Freedom of Information Center, University of Missouri School of 
Journalism
Friends Committee on National Legislation (Quaker)
Government Accountability Project
Greenpeace
Islamic Circle of North America (ICNA Relief)
Japanese American Citizens League
Libertarian Party
National Asian Pacific American Legal Consortium
National Association for the Advancement of Colored People
National Committee Against Repressive Legislation
National Consumers League
OMB Watch
People For the American Way
Privacy International
Privacy Journal
Privacy Rights Clearinghouse
Privacy Rights Now Coalition.
Privacy Times
PrivacyActivism
The Independent Institute
The Multiracial Activist
University of Missouri School of Journalism
World Organization for Human Rights USA
World Privacy Forum

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