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Executive Summary #6 on Department of Homeland Security

February 6, 2003

Executive Summary: The Need to Protect Civil Liberties WhileCombating Terrorism: Legal Principles and the Total Information Awareness Program

By and

The Total Information Awareness (TIA) project is a research program in its initial stages. Federal agencies eventually could use TIA-developed technology to share information more effectively and to access information already available to law enforcement and intelligence agencies in a less costly manner. If the research is successful, TIA will provide the intelligence and law enforcement agencies with a powerful and safe tool for unearthing suspected terrorists.

Some in Congress have recently expressed concern over the program, fearing that it might be overly intrusive of American liberty. There are understandable and reasonable worries that giving the government data surveillance capabilities to fight terrorism might lead to unacceptable intrusions into the private lives of law-abiding Americans. Congress must, therefore, take some steps to protect Americans from unwarranted and unnecessary intrusions.

But the picture of TIA offered by its most vocal critics is not accurate. Even the legitimate concerns do not warrant the wholesale rejection of TIA's potential benefits, especially before its capacities are realized. Rather, research and development of TIA can and should continue, guided by the fundamental principle that no information access technology should be implemented in a manner that alters or contravenes existing legal restrictions on the government's ability to access data about private individuals. More particularly, there should be:

Congressional authorization and strong congressional oversight
Before any program like TIA--with both great potential utility and significant potential for abuse--is implemented, it ought, in the first instance, to be affirmatively approved by the American people's representatives. Moreover, Congress should commit to a strict regime of oversight of the TIA program to prevent mission creep or abuse.

For that to happen, Congress must not strangle the program in the crib by means of an appropriations rider that stops research or development until Congress gets its act together. Such a rider may be well-intended, but it would have the effect of encouraging congressional delay and empowering a committed minority to employ dilatory tactics to kill any eventual authorization. The threat of another horrific attack is simply too grave to justify prematurely cutting off such a promising anti-terrorism tool as TIA.

Restricted use of TIA-developed technology
TIA data inquiries to correlate data and uncover potential terrorist activity should be done (whether for law enforcement or intelligence purposes) only to investigate terrorist, foreign intelligence, or national security activities; the TIA technology should never be used for ordinary criminal activity. Congress should require certification of adherence to these limits by Senate-confirmed political appointees and limit access to the results of any analysis derived from applying the TIA search models to a small cadre of analysts. In addition, those developing TIA should be required to construct a system that protects privacy by disaggregating individual identifiers from pattern-based information until after the pattern is independently deemed to be of sufficient interest to warrant further investigation.

No alteration of existing legal restrictions on the government's ability to access data about private individuals
Current laws regarding the issuance of search warrants and subpoenas for domestic information about private individuals should be applied to TIA in equivalent, unchanged form. Congress should also continue existing restrictions on the collection of foreign intelligence data and should not extend any domestic prohibitions on the use of TIA technology to its use on overseas databases containing information on non-citizens.

Absolute protection for fundamental constitutionally protected activity
It is imperative that any implementing legislation contains an absolute prohibition on accessing databases relating to support of political organizations that propagate ideas--even ones favorable to terrorist regimes.

Civil and criminal penalties for abuse
The TIA system must incorporate, as part of its basic structure, an audit trail system that keeps a complete and accurate record of activities that are conducted using the system. Violations of prohibitions enacted by Congress should be punishable by the executive branch through its administrative authority and should be sanctionable both civilly and criminally.

A sunset provision in the authorization
A sunset provision of five years would be ample and would provide a sufficient time for Congress to assemble concrete information on which to base a further reauthorization decision.

Conclusion
The TIA program is no panacea. There is no guarantee that it will prevent further terrorist attacks against America. But neither is it an Orwellian monster whose construction will irretrievably alter the landscape of American liberty and freedom. Rather, as with most innovative proposals, it is a technological development capable of both use and abuse. To view the potential for misuse as the basis for rejection of a new technology is, however, to despair of technological change and improvement. The better approach is a thoughtful and measured one: examining the possibilities of the new technology in the context of existing law and taking steps to ensure that its development is consistent with those limitations. Viewed through this prism, the research into the development of TIA should proceed--with appropriate safeguards.

Prematurely rejecting new technology is no answer to the asymmetric threat of terror. Rather, Congress and the executive branch must work to harness technology's potential benefits and limit its potential abuses. In short, civil liberties and national security need not be traded off in equal measure. Americans deserve essential protections for both and should insist that policymakers engage in the difficult task of ensuring that they get them.

Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and Adjunct Professor of Law at George Mason University. Michael Scardaville is Policy Analyst for Homeland Security in the Kathryn and Shelby Cullom Davis Institute for International Studies at The Heritage Foundation.

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