DHS information-sharing initiative stalls due to privacy concerns

A proposed Homeland Security Department information-sharing initiative faces ongoing funding challenges, due to congressional concerns over privacy.

For the third year in a row, Congress as part of the Homeland Security spending bill prohibited DHS from using appropriated funds to stand up the National Immigration Information Sharing Operation. To start the flow of funding, the Homeland Security secretary must certify that the project -- designed to give intelligence and law enforcement agencies access to DHS immigration information -- complies with applicable laws, including privacy and civil liberties standards.

Lawmakers would not be satisfied until the comptroller general reviewed the DHS secretary's certification and agreed the initiative meets privacy requirements. The Senate passed the fiscal 2010 spending bill earlier this week and it now awaits President Obama's signature. The fiscal 2008 and fiscal 2009 Homeland Security appropriations measures included similar stipulations.

The project is managed by DHS' Intelligence and Analysis Office and remains in the planning stages. "NIISO has never been and is not now operational," said DHS spokesman Matthew Chandler, confirming that a different program with the same name was initiated at U.S. Citizenship and Immigration Services in 2005.

In a report released in June to accompany the Homeland Security spending bill, the House Appropriations Committee expressed concern that "although the department has had at least 18 months to develop and submit operating documents and certifications showing that these programs can be conducted within existing privacy and civil liberties statutes, it has failed to adequately do so. While the committee strongly supports programs that the department believes are necessary for the security of the country, it is pointless to sustain funding for programs that are not operational and have been unable to demonstrate they can function within existing law."

The report encourages the department to use funding provided for analysis and operations to complete its privacy review.

The Intelligence and Analysis Office "is making progress toward meeting these conditions, and is currently coordinating with the DHS Privacy Office, DHS Office of General Counsel, and the DHS Civil Rights and Civil Liberties Office to finalize a privacy impact assessment and civil liberties impact assessment," Chandler said. That assessment will go to DHS Secretary Janet Napolitano, he said, and "if certified, [the office] will forward the NIISO program certification to the Government Accountability Office to conduct its review."

Two major issues that must be considered in program reviews are the potential for inaccurate immigration data and misuse of information, said Lillie Coney, associate director at the Electronic Privacy Information Center in Washington.

"The notion that government will provide this information to law enforcement introduces issues of due process, rights of the individuals, accuracy and whether these systems can be used in a reliable way for the right purposes," Coney said. She noted DHS "has had problems with data accuracy in systems of record currently being used," including E-Verify, which allows companies to vet the immigration status of employees.

Citizenship and Immigration Services, which runs E-Verify, has reported the error rate to be as low as 0.3 percent, translating to mistakes in about 24,000 queries annually. EPIC and other organizations, including the American Civil Liberties Union, argue that this is unacceptably high and can lead to unfair terminations.

To limit errors, Coney said, individuals should be notified when their information is being shared and should be allowed to access and amend their records, as required under the 1974 Privacy Act.

"If a statute doesn't mention that the Federal Privacy Act should apply [and] if they don't discuss fair accuracy practices, this is going to be a recipe for some major problem of misuse and abuse," she said.