Protecting Individual Privacy in the Struggle Against Terrorists A Framework for Program Assessment (2008) / Chapter Skim
Currently Skimming:
Appendix G: The Jurisprudence of Privacy Law and the Need for Independent Oversight
Appendix G: The Jurisprudence of Privacy Law and the Need for Independent Oversight
Pages 166-184
The Chapter Skim interface presents what we've algorithmically identified as the most significant single chunk of text within every page in the chapter.
Select key terms on the right to highlight them within pages of the chapter.
From page 166... ...
So the evolving balance between the government's need to intrude on the private lives of individuals in the service of its public safety mission and the requirement to maintain individual liberty has been maintained over time by providing a degree of transparency in the use of new technologies, along with accountability to rules assured by judicial and legislative oversight. As new technologies and investigative techniques come into use, courts and legislatures have the opportunity to review these advances and make assessments of their privacy impact, guided by constitutional and public policy foundations.
|
From page 167... ...
, how that information is handled (the fair information practices that seek care and openness in the management of personal information described in Box G.1) , or rules governing the ultimate use of information (such as prohibitions on the use of certain health information for making employment decisions)
|
From page 168... ...
2 Fair information principles are a staple of the privacy literature. See, for example, the extended discussion of these principles in D. Solove, M. Rotenberg, and P. Schwartz, Information Privacy Law, Aspen Publishers, New York N.Y., 2006; A. Westin, "Social and political dimensions of privacy," Journal of Social Issues 59(2)
|
From page 169... ...
SOURCE: National Research Council, Engaging Privacy and Information Technology in an Information Age, J. Waldo, H.S. Lin, and L. Millett, eds., The National Academies Press, Washington, D.C., 2007.
|
From page 170... ...
The actual boundaries of the Fourth Amendment have changed over time, shaped by changing technological capabilities, social attitudes, government activities, and Supreme Court justices, as indicated by a series of Supreme Court decisions in the past century. The nature of this evolution, driven both by judicial intervention and legislative action, demonstrates an ongoing and vital role for policy makers and jurists to ensure that the values reflected in the Fourth Amendment are kept alive in the face of new technologies.
|
From page 171... ...
Typically, this involves routing calls to a location designated by the law enforcement agency, where the information is captured and stored for later analysis using technologies designed for communications surveillance and analysis. The first step in establishing today's legal framework was the Katz decision of the Supreme Court in 1967.
|
From page 172... ...
For example, early wiretapping was found not to violate the Fourth Amendment in 1928, but when the Supreme Court considered the question of telephone surveillance again in 1967, it reversed itself and found that citizens' reasonable expectation of privacy in private telephone calls meant that surveillance of telephone calls could be done only with a judicially approved warrant and ongoing supervision of a "detached, neutral magistrate." As reliance on new communications technologies continued, Congress stepped in to establish basic privacy protections and provisions for law enforcement access to electronic mail. In an important instance of proactive legislative action determined to be necessary to provide stable privacy protection for a new electronic communications medium, Congress acted on the belief that "the law must advance with the technology to ensure the continued vitality of the Fourth Amendment."3 With the advent of the World Wide Web, congressional action extended privacy protections to web and e-mail access transaction logs, along with clear procedures for legitimate law enforcement access with judicial supervision.
|
From page 173... ...
Still another issue arising recently is the changing relevance of political boundaries to communications. Previous communications technologies and the laws that addressed them often reflected political boundaries.
|
From page 174... ...
And it is certainly not possible to establish a priori clear measures of how much privacy protection ought to be brought to bear on new surveillance capabilities. What this history reveals is that careful consideration of the privacy impact of new surveillance powers has generally resulted in a measure of privacy protection that gives citizens confidence, while at the same time preserving apparently adequate 6 See O.S.
|
From page 175... ...
G.1.4 New Approaches to Privacy Protection: Collection Limitation Versus Use Limitation There is growing agreement that regulation of large-scale analysis of personal information, such as data mining, will have to rely on usage limitations rather than merely collection limitations.9 Historically, privacy 8 See Smith . Maryland, 442 U.S.
|
From page 176... ...
The result is that powerful investigative techniques with significant privacy impact proceed in full compliance with existing law, but with significant unanswered privacy questions and associated concerns about data quality. However, attempts to limit collection of or access to the data that feed data mining activities may create significant burdens on legitimate investigative activity without producing any real privacy benefit.
|
From page 177... ...
For national security issues, the Federal Bureau of Investigations (FBI) conducts investigations inside the United States that are subject to oversight by the Federal Intelligence Security Court (established by the Foreign Intelligence Surveillance Act)
|
From page 178... ...
Executive branch agencies often create independent oversight boards to review internal activities so as to improve performance and generate public trust. Examples include the National Aeronautic and Space Administration's Shuttle Oversight Board,14 the Department of Energy's Performance Assurance Program Independent Oversight,15 the Food and Drug Administration's (FDA)
|
From page 179... ...
is a key dimension of oversight because of the suspicion -- often warranted -- that oversight controlled or influenced by the entity being overseen is not meaningful and that problems revealed by nonindependent oversight will be concealed or improperly minimized. Independent oversight mechanisms also generally have greater ability to bring fresh and unbiased perspectives to an organization that is caught up in its day-to-day work.
|
From page 180... ...
Independent oversight board members should be trusted individuals whose credibility is also respected because of their career accomplishments. In addition to distance, experience, trust, and credibility, another issue tied to independence is transparency.
|
From page 181... ...
. Disseminate Results of Oversight Independent oversight boards typically produce a printed report, and its distribution is critical to its impact.
|
From page 182... ...
. The mission statement of the DHS Privacy Office is "to minimize the impact on the individual's privacy, particularly the individual's personal information and dignity." It remains to be seen whether the advisory board acts more as an internal review committee or a truly independent oversight board.18 Within DHS, the Citizenship and Immigration Services has an 18 M .
|
From page 183... ...
Public discussion of independent oversight could help 19 Electronic Privacy Information Center, Foreign Intelligence Surveillance Act Orders 1979-2007, updated May 8, 2008. Available at http://epic.org/privacy/wiretap/stats/fisa_ stats.html.
|
From page 184... ...
A stronger form of independent oversight and advice may come from external consultants or review panels that are convened for specific decisions or projects, but even stronger forms are possible. For example, in the United States, corporate boards of directors are required to include an audit committee that is responsible for monitoring the external financial reporting process and related risks.
|
Key Terms
This material may be derived from roughly machine-read images, and so is provided only to facilitate research.
More
information on Chapter Skim is available.