Privacy and Information Sharing in the War on Terror Peter P. Swire Ohio State University...

Privacy and Information Privacy and Information Sharing in the War on TerrorSharing in the War on Terror

Peter P. SwirePeter P. SwireOhio State UniversityOhio State University

Consultant, Morrison & Foerster, LLPConsultant, Morrison & Foerster, LLPFellow, Center for American ProgressFellow, Center for American Progress

IAPP Summit, March 9, 2006IAPP Summit, March 9, 2006

OverviewOverview

My background in privacyMy background in privacy The lack of information sharing as a cause of The lack of information sharing as a cause of

9/11 attacks9/11 attacks The Bush Doctrine of information sharing The Bush Doctrine of information sharing A due diligence checklist for when proposed A due diligence checklist for when proposed

information sharing makes senseinformation sharing makes sense

Chief Counselor for PrivacyChief Counselor for Privacy U.S. Office of Management & Budget, 1999-early 2001U.S. Office of Management & Budget, 1999-early 2001 Trying to “build privacy in” for policies/lawsTrying to “build privacy in” for policies/laws

HIPAA: medical privacyHIPAA: medical privacy Gramm-Leach: financial privacyGramm-Leach: financial privacy FTC enforcement of privacy promisesFTC enforcement of privacy promises

• Especially for the InternetEspecially for the Internet Safe Harbor with EuropeSafe Harbor with Europe Federal agency web policies & privacy impact Federal agency web policies & privacy impact

assessmentsassessments Chaired WH Working Group on how to update Chaired WH Working Group on how to update

surveillance law for the Internet agesurveillance law for the Internet age

My Normative BaselineMy Normative Baseline

My own views are roughly those reflected by the My own views are roughly those reflected by the Clinton Administration during that periodClinton Administration during that period Achieve progress in building privacy into Achieve progress in building privacy into

public and private systemspublic and private systems Fair information practices as the baselineFair information practices as the baseline Be realistic about how laws are actually Be realistic about how laws are actually

implemented in practice, avoiding over- and implemented in practice, avoiding over- and under-regulationunder-regulation

No reason that should be a partisan positionNo reason that should be a partisan position

Information SharingInformation Sharing

The failure of intelligence to prevent the 9/11 The failure of intelligence to prevent the 9/11 attacksattacks

Belief that did not have enough information Belief that did not have enough information sharingsharing Between FBI and CIABetween FBI and CIA Between federal and first respondersBetween federal and first responders Among all the “good guys” to get the “bad Among all the “good guys” to get the “bad

guys”guys”

Encouraging Information SharingEncouraging Information Sharing

Several Executive Orders to encourage itSeveral Executive Orders to encourage it Intelligence Reform Act of 2004 & National Intelligence Reform Act of 2004 & National

Director of IntelligenceDirector of Intelligence Markle Task Force on National Security in the Markle Task Force on National Security in the

Information AgeInformation Age Intellectual rationale for information sharingIntellectual rationale for information sharing Says privacy, data security, and civil liberties Says privacy, data security, and civil liberties

should be built in as wellshould be built in as well

The Bush Doctrine ofThe Bush Doctrine of Information Sharing Information Sharing

Disclaimer – I have often critiqued the Bush Disclaimer – I have often critiqued the Bush Administration on privacy & information sharingAdministration on privacy & information sharing First explain the logic of the positionFirst explain the logic of the position

Axiom 1: The threat has changedAxiom 1: The threat has changed Was threat of Soviet tank or missile attackWas threat of Soviet tank or missile attack Now is asymmetric threat – a few individuals Now is asymmetric threat – a few individuals

with boxcutters or home-made explosives with boxcutters or home-made explosives

Bush DoctrineBush Doctrine

Axiom 2: The threat is significantAxiom 2: The threat is significant The intellectual importance of WMDsThe intellectual importance of WMDs ““One nuke can ruin your whole day”One nuke can ruin your whole day” Measures that are not justified by small Measures that are not justified by small

attacks may be justified for asymmetric, large attacks may be justified for asymmetric, large attacksattacks


Axiom 3: Progress in IT dwarfs progress in Axiom 3: Progress in IT dwarfs progress in defensive physical securitydefensive physical security Price of sensors, storage, and sharing down Price of sensors, storage, and sharing down

sharplysharply Useful knowledge & patterns extracted from Useful knowledge & patterns extracted from

datadata The efficient mix of security measures has a The efficient mix of security measures has a

large & ongoing shift to information-intensive large & ongoing shift to information-intensive strategiesstrategies


(1) The threat has changed(1) The threat has changed (2) The threat is significant (2) The threat is significant (3) Progress in IT shifts the best response(3) Progress in IT shifts the best response For privacy advocates, which of these For privacy advocates, which of these

assertions seems incorrect?assertions seems incorrect? There is a powerful logic to this approachThere is a powerful logic to this approach Now we turn to possible responsesNow we turn to possible responses

Has the Threat Changed?Has the Threat Changed?

Yes.Yes. Conventional threat, typified by satellite Conventional threat, typified by satellite

reconnaisance of military targets, is clearly less reconnaisance of military targets, is clearly less than before 1989than before 1989 Enemy mobilization was often graduated and Enemy mobilization was often graduated and

visible (levels of military alert)visible (levels of military alert) Current threats from asymmetric attacksCurrent threats from asymmetric attacks

No visibility of imminent attacks unless get No visibility of imminent attacks unless get information about the individual attackersinformation about the individual attackers

How Significant is the Threat?How Significant is the Threat?

This topic is controversialThis topic is controversial I address this in 2004 article on foreign I address this in 2004 article on foreign

intelligence & surveillanceintelligence & surveillance No WMDs in IraqNo WMDs in Iraq Nation states as havens likely Nation states as havens likely muchmuch more more

dangerous than isolated individualsdangerous than isolated individuals Exceptions in my view – nuclear proliferation, Exceptions in my view – nuclear proliferation,

tailored virusestailored viruses

Significance of the ThreatSignificance of the Threat

Within the U.S., has been extremely difficult Within the U.S., has been extremely difficult politically to question the threatpolitically to question the threat Republicans have been loyal to Pres. BushRepublicans have been loyal to Pres. Bush Democrats can’t appear weakDemocrats can’t appear weak

Within U.S., privacy and civil liberties advocates Within U.S., privacy and civil liberties advocates question the threat but have not been likely to question the threat but have not been likely to succeed muchsucceed much

The debate since 9/11 has been what to do The debate since 9/11 has been what to do assumingassuming a large threat: “The a large threat: “The War War on Terrorism”on Terrorism”

Due Diligence List for Whether Shift Due Diligence List for Whether Shift to Information Sharing is Efficientto Information Sharing is Efficient

Here is the battleground for each proposalHere is the battleground for each proposal (1) Ends/means rationality – does the proposed (1) Ends/means rationality – does the proposed

surveillance actually improve security?surveillance actually improve security? Does security measure work? Cost Does security measure work? Cost

effectively?effectively? E.g., carry-ons over-broad (nail cutters) and E.g., carry-ons over-broad (nail cutters) and

under-broad (ingenious attackers can attack)under-broad (ingenious attackers can attack) E.g., data mining may create so many false E.g., data mining may create so many false

positives that the noise swamps the signalpositives that the noise swamps the signal

Due Diligence ListDue Diligence List

(2) Security experts’ concern about information (2) Security experts’ concern about information sharing:sharing: Imagine you are GC for the CIAImagine you are GC for the CIA Will sharing compromise our “sources and Will sharing compromise our “sources and

methods”?methods”? When should we abandon “need to know”?When should we abandon “need to know”? How often will “bad guys” infiltrate the How often will “bad guys” infiltrate the

information sharing that is intended to inform information sharing that is intended to inform only the “good guys”? To all first responders?only the “good guys”? To all first responders?

Swire research on disclosure & securitySwire research on disclosure & security


(3) “Security theater” & Bruce Schneier(3) “Security theater” & Bruce Schneier Perceive, and critique, measures that are Perceive, and critique, measures that are

taken for the sake of “doing something”taken for the sake of “doing something” E.g., show ID to get into office buildings; this E.g., show ID to get into office buildings; this

is worthless in a world of pervasive fake IDsis worthless in a world of pervasive fake IDs Important to have credible and effective Important to have credible and effective

technical critiques of proposed surveillancetechnical critiques of proposed surveillance• U.S. State Dept. RFIDs on passports as U.S. State Dept. RFIDs on passports as

“terrorist beacons” readable at 10 meters“terrorist beacons” readable at 10 meters


(4) Point out unprecedented nature of proposed (4) Point out unprecedented nature of proposed surveillance – a Burkean, conservative pointsurveillance – a Burkean, conservative point E.g., library records and chilling the right to E.g., library records and chilling the right to

readread ““Gag rule” on foreign intelligence orders to get Gag rule” on foreign intelligence orders to get

library and other databaseslibrary and other databases• Some greater due process in Patriot Act Some greater due process in Patriot Act

revisionsrevisions E.g., national ID cards and coalition of E.g., national ID cards and coalition of

libertarians on left and rightlibertarians on left and right


(5) Invoke historical abuses & ask for checks and (5) Invoke historical abuses & ask for checks and balancesbalances Prevention was tried by Hoover & the FBIPrevention was tried by Hoover & the FBI The theory of “just a bit more data”The theory of “just a bit more data” Prevention led, over time, to vast expansion of Prevention led, over time, to vast expansion of

surveillance but little proven preventionsurveillance but little proven prevention Political and other abuses from that expansionPolitical and other abuses from that expansion Therefore, oversight and limits on new Therefore, oversight and limits on new

surveillance because human nature hasn’t surveillance because human nature hasn’t changedchanged


(6) Fairness, discrimination, and effectiveness(6) Fairness, discrimination, and effectiveness If single out groups, such as young Arab If single out groups, such as young Arab

males, then that can backfiremales, then that can backfire Is unfair, and perceived as unfair by manyIs unfair, and perceived as unfair by many Risk of creating resentment by communities Risk of creating resentment by communities

who cooperation is needed – better to build who cooperation is needed – better to build bridges to communities than to treat everyone bridges to communities than to treat everyone as a suspectas a suspect


(7) Show how proposed measures make the (7) Show how proposed measures make the problem worseproblem worse E.g., trusted traveler programs will give E.g., trusted traveler programs will give

greater powers for harm to the terrorists who greater powers for harm to the terrorists who get the credentialget the credential

E.g., racial profiling that undermines E.g., racial profiling that undermines assistance from the well-informedassistance from the well-informed


(8) International reaction to U.S. measures(8) International reaction to U.S. measures E.U. & other countries are more regulatory on E.U. & other countries are more regulatory on

many privacy issuesmany privacy issues Not politically popular in U.S. to do it just Not politically popular in U.S. to do it just

because, say, the French want itbecause, say, the French want it Having allies, though, is actually a good thingHaving allies, though, is actually a good thing Concerns from outside the U.S. may require a Concerns from outside the U.S. may require a

more fully developed policy process within more fully developed policy process within U.S.U.S.

Conclusion:Conclusion:Summary on Bush DoctrineSummary on Bush Doctrine

Significant moral & political logic to: Significant moral & political logic to: New threatNew threat The threat is largeThe threat is large IT and information sharing will helpIT and information sharing will help

More IT and information sharing is often a logical More IT and information sharing is often a logical response to changing conditionsresponse to changing conditions

The Due Diligence ListThe Due Diligence List Issues to consider include:Issues to consider include:

Does proposal work? Cost-effectively?Does proposal work? Cost-effectively? Risk to sources & methods and other securityRisk to sources & methods and other security It may be “security theater”It may be “security theater” Unprecedented surveillance and not neededUnprecedented surveillance and not needed Historical abuses show need for checksHistorical abuses show need for checks Fairness and non-discriminationFairness and non-discrimination Proposed measures may make the problem Proposed measures may make the problem

worseworse International ramificationsInternational ramifications

What Have We Learned?What Have We Learned?

Description: the types of arguments used in Description: the types of arguments used in information sharing debatesinformation sharing debates

Prescription: Prescription: Do the due diligenceDo the due diligence Empirical assessment of each item on the list Empirical assessment of each item on the list Institutions to screen proposals for sharing Institutions to screen proposals for sharing Institutions for oversight of the programs that Institutions for oversight of the programs that

go forwardgo forward In that way, use new IT if, but only if, that In that way, use new IT if, but only if, that

actually makes senseactually makes sense

Contact InformationContact Information

Professor Peter P. SwireProfessor Peter P. Swire Phone: (240) 994-4142Phone: (240) 994-4142 Email: Email: [email protected]@peterswire.net Web: Web: www.peterswire.netwww.peterswire.net

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