Experts: Clear data-sharing policies needed

Clear governmentwide policies are needed to address how authorities from different levels of government can share information that could be related to terrorism and enter it into federal databases, experts in the privacy field told a Senate subcommittee.

During a hearing held April 21 by the Senate Judiciary Committee’s Terrorism and Homeland Security Subcommittee, experts said state and local  authorities need improved guidance on how to share homeland security information and intelligence with federal authorities.

State and local law enforcement officers are being asked to play an expanding role in domestic counterterrorism efforts that involve the FBI, the Homeland Security Department and the Office of the Director of National Intelligence’s Program Manager for the Information Sharing Environment. A national pilot program is under way to standardize how non-federal law enforcement officers share reports with federal authorities on activity that they suspect could be linked to terrorism.

In March, a report from the Markle Foundation Task Force on National Security in the Information Age said immediate action was needed to improve the sharing of national security information, and the Obama administration and Congress should use policy changes and information technology to deal with those problems.

“Today, we are still vulnerable to attack because — as on 9/11 — we are still not able to connect the dots,” said Zoë Baird, co-chairwoman of the task force. “At the same time, our civil liberties are at risk because we don’t have the governmentwide policies in place to protect them as more powerful tools for intelligence collection and sharing information emerge.”

Baird said the government must write new rules that explain the extent to which personally identifiable information needs to be included in information that local law enforcement officials pass to federal authorities.

“Obviously, if a local police officer has hard information or reasonable suspicion that someone is engaged in a terrorist activity, they know what to do today,” Baird said. “But what we’re talking about is the use of intelligence information where a piece of information one individual has doesn’t tell the whole picture.”

Meanwhile, recent controversies were caused by the public disclosure of several homeland security intelligence reports, including a DHS report on right-wing extremist threats and reports produced by DHS-funded state and local intelligence fusion centers. Critics say the reports unfairly implicated groups or individuals.

Caroline Fredrickson, director of the American Civil Liberties Union’s Washington Legislative Office, said lawmakers should codify regulations for federally funded criminal intelligence databases "to establish a reasonable suspicion standard for all criminal intelligence information collection programs and to limit dissemination absent a legitimate law enforcement need.”

“Guidelines and regulations that require law enforcement officers to have a reasonable factual basis to suspect illegal behavior before collecting and distributing personally identifiable information help curb this abuse and focus finite police resources where they belong — on criminal activity,” Fredrickson said.

She added that governmentwide standards are needed to prevent law enforcement officers from conducting surveillance based on activity that is protected by the Constitution.

However, Sen. Jon Kyl (R-Ariz.), the subcommittee’s ranking member, said he is concerned about putting too many restrictions on police work.

“While guidelines are really important when you’re investigating these kind of activities...you also need to be very careful that you don’t get into a situation analogous to the wall of separation that existed before 9/11 where an arbitrary legal standard prevented the sharing of data,” Kyl said.

Baird said guidelines were needed because officials aren't certain about what they are authorized to do. She said policies would empower those officials to act.

“The lack of adequate and robust policies now is really slowing things down more than the technology,” Baird said. “If anything, the technology is getting out ahead of the policies.”