Bill's secrecy provisions stick

Last-minute efforts by Senate Democrats to strip objectionable secrecy provisions from the homeland security bill apparently failed Nov. 18.

Language added to the bill by the House of Representatives would block the disclosure of information about technology vulnerabilities through the Freedom of Information Act. Attempts to remove the language seemed certain to fail even as the Democrats wrestled to remove other provisions they dislike.

Sen Patrick Leahy (D-Vt.) called the House language "the most severe weakening of the Freedom of Information Act in its 36-year history." He said it "would hurt and not help our national security, and along the way it would frustrate enforcement of the laws that protect the public's health and safety."

The FOIA exemptions were slipped into the bill by the House last week and are broader and more punitive than exemptions agreed to earlier by the Senate.

Leahy and others warned that the House version of the bill (H.R. 5710) could turn government agencies into the allies of private firms that want to withhold information about critical infrastructure vulnerabilities.

Keeping the vulnerabilities secret would reduce the incentive to fix them, Leahy said.

The House language would impose harsh punishments, including jail time, for government employees who disclose exempted critical infrastructure information.

The American Civil Liberties Union raised objections after the homeland security bill passed the House Nov. 14.

Government officials could face fines or jail time for disclosing information about poorly protected computer networks, poorly guarded nuclear sites or contaminated blood supplies, said Laura Murphy, director of the ACLU's Washington, D.C., legislative office.

"We're unhappy about it," said Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy.

The House's FOIA exemptions would apply to "information as opposed to records," he said. Exempting "information" from disclosure puts much more material off limits to the public than exempting "records." And the exemptions apply to all federal agencies, not just the Homeland Security Department, Aftergood said.

The House FOIA exemption "reflects a philosophy that vulnerabilities should always be concealed" and ignores the American tradition that "publicity is often indispensable for garnering political momentum and budgetary resources to correct problems," he said.

However, the Homeland Security bill contained two surprising provisions that won praise from the ACLU.

The bill drops support for uniform, high-tech driver's licenses, and it removes support for Operation TIPS, a Justice Department plan to recruit workers such as truck drivers, postal workers and cable TV installers to report suspicious activity they see while on the job.

The ACLU opposes biometric driver's licenses backed by interconnected databases, and last summer the civil rights group denounced Operation TIPS as an effort to create "a network of government-sanctioned peeping Toms."