John Whitehead's Commentary

It is proper to take alarm at the first experiment on our liberties.--James Madison

Since 9/11, it has become apparent that the federal government, unless it is kept within the bounds of the law, will develop into an immense monster that no one can curb. The end result will be that the American people will lose control of their government.

This is reflected in a recent proposal by the Department of Homeland Security (DHS) to collect further information on American citizens. On April 18, 2005, DHS gave notice that it was creating a new data system "to serve as the primary national-level hub for operational communications and information pertaining to domestic incident management and will support a single, centralized repository for gathered information."

This new data system will collect records from every available source and will include information from all governmental agencies--federal, state and local. It will also collect data from commercial financial institutions such as banks and from media sources including television programs, newspapers and the like. Also included would be information from libraries on what books people check out, rentals from video stores and so on. In other words, everything you do will be accessible by government agents.

Ironically, DHS states that American citizens who assist in homeland security investigations and those who report suspected terrorists would also be investigated. Any data about these citizens would also be included in the new database. Thus, if you report information to DHS, you may become the subject of investigation yourself.

The collection of such data by the government was prohibited in 1974 under the congressionally enacted Privacy Act. Under this law, Congress restricted the amount of personal information that federal agencies could collect on American citizens and required such agencies to be accountable to the public in their data collection.

Upheld by the U.S. Supreme Court, the Privacy Act was intended to guard citizens' privacy interests against government intrusion. After a congressional investigation, it was found that the privacy of American citizens is directly affected by the collection, use and dissemination of personal information by federal agencies. And as the congressional investigation concluded, "the right to privacy is a personal and fundamental right protected by the Constitution of the United States." Therefore, with the Privacy Act, Congress sought to provide certain protections for citizens against governmental invasions of privacy.

Unfortunately, under the proposed new data system, DHS is exempted from key sections of the Privacy Act. These include the requirements that an individual be permitted access to personal information collected by the government, that an individual be permitted to correct and amend incorrect personal information and that the government assure the reliability of personal information for its intended use. It also exempts the new database from an important provision in the Privacy Act that allows individuals to seek redress in court to enforce their right to access to the data collected by the government or correct erroneous information in government records.

Access to the courts to challenge mistakes or confusion about the data proposed to be collected by DHS will affect innocent Americans. Without an opportunity to force the government to correct erroneous information, it can result in great injustice. For example, there has been an ongoing problem with individuals improperly flagged on airplane watch lists. Innocent people have faced lengthy delays, questioning and at times been prohibited from boarding flights because they are misidentified as people sought on no-fly lists. It is well known that individuals have encountered great difficulty in resolving such problems. Senators Ted Kennedy (D-Mass.) and Don Young (R-Alas.) are among the individuals who have been improperly flagged by watch lists. Sen. Kennedy was able to resolve the situation only by personally enlisting the help of then-Homeland Security Secretary Tom Ridge. Unfortunately, the average citizen does not have that option.

DHS thus far has not provided an explanation of why the Privacy Act correction procedures would be inappropriate in correcting data collected by the agency. Denying citizens the right to ensure that the data collected contains only accurate, relevant, timely and complete records will increase the probability that DHS will be an error-prone, ineffective means of ensuring homeland security. And, sadly, the average citizen will thus become a target of federal agents.

Data collected by the gargantuan federal bureaucracy and its misuse continue to be a problem, even at the state level. Indeed, a recent scandal in Florida highlights the need for strong privacy protections and clear regulation governing databases such as that proposed by HSD. In March, a woman wrote to a newspaper criticizing a Florida sheriff for being "too fat for police work" and his agency's use of stun guns. The sheriff in question ordered staffers to use state driver's license records to obtain the home address of his critic, despite a federal law that prohibits such conduct. In this particular instance, the mere act of constitutionally protected free speech resulted in a citizen being targeted by a government official.

A fundamental principle of our American form of government is that all officials are to be accountable to the American citizenry. And the mere threat of terrorism should not be a blank check to gather information on American citizens without the important checks provided by the Privacy Act.

This means that DHS should revise its policy to include key protections provided by federal law. At a minimum, we should be provided, as American citizens, with a right to challenge in court the government's access to our information and to correct erroneous information. Surely, no governmental agency should be able to collect any and all information from whatever source. This means that government agents should be restrained to collect only necessary and relevant information, as provided under current law. Otherwise, the new government data collection system is likely to spiral out of control.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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