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“Critiquing the Idea of Total Information Awareness” . Professor Peter P. Swire Ohio State University Consultant, Morrison & Foerster LLP International Association of Privacy Officers February 27, 2003 . Overview. The Poindexter TIA program

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Critiquing the idea of total information awareness l.jpg

“Critiquing the Idea of Total Information Awareness”

Professor Peter P. Swire

Ohio State University

Consultant, Morrison & Foerster LLP

International Association of Privacy Officers

February 27, 2003


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Overview

  • The Poindexter TIA program

  • The Poindexter program is simply one example of the Administration’s consistent philosophy of TIA

  • Security, privacy & democracy critiques of TIA

  • What to do next


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I. The Poindexter Program

  • Announcement fall 2002 of Total Information Awareness Program in Dept. of Defense, headed by Adm. John Poindexter

  • Vacuum cleaner for government, public-record, and private databases

  • Research program, but expected to go operational soon


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Poindexter Program

  • Public outcry against the program

  • Wyden-Grassley amendment to de-fund it

  • Bush Administration tried to save it with a blue-ribbon oversight board

  • No member of Congress spoke for it

  • So, ban on expenditure won


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II. The Bush Doctrine of Total Information Awareness

  • The Poindexter program is simply one example of a Bush Administration doctrine of Total Information Awareness

  • At its most basic:

    • “The government should know more”

    • “Everyone else should know less”


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The Government Should Know More

  • Maximize information available to the Enforcers

    • That is what “Total Information Awareness” means

  • Maximize detection and surveillance by the Enforcers

  • Maximize information sharing among the Enforcers


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Maximize Detection & Surveillance

  • Examples:

    • Poindexter program itself

    • TIPS -- get information from the letter carrier and the cable guy

    • USA-Patriot Act -- stored records, etc.

    • Patriot II proposal -- get FCRA records without consent, etc.


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Maximize Information Sharing

  • Break down the wall between law enforcement and foreign intelligence/FISA

  • TTIC -- 2003 State of the Union and Director of CIA should head analysis of domestic, foreign, and law enforcement data

  • OMB initiatives to end “data silos”

  • Homeland Security Department’s many functions share data

  • Money laundering data at home & abroad


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“Everyone Else Should Know Less”

Bush Administration policy of increasing government secrecy

(1) Tell less about government actions

(2) More rules to prevent leaks


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Tell less about government actions

  • FOIA change by Ashcroft before 9/11

  • Cheney refusal to release energy policy meeting list to GAO

  • FOIA rollback in Homeland Security

  • Take down web sites, including information to neighbors about potential leaks from chemical plants


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More Rules to Prevent Leaks

  • Theme -- don’t inform the terrorists of our vulnerabilities

  • Patriot I -- criminal gag rules on libraries, employers, and others if they are asked to turn over records to the government

  • Homeland Security -- new criminal penalties against whistleblowers

  • Patriot II -- more proposed gag rules


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Summary on Administration Actions to Date

  • Total Information Awareness as the overall Administration policy

    • Maximize surveillance and information sharing

    • Minimize sharing of information with public

  • Implicit view that this approach shows you are serious about national security

  • Implicit view that raising privacy and civil liberties means you care less about security


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III. Critiques of the Philosophy of Total Information Awareness

  • Negative impacts on security

  • Negative impacts on privacy

  • Lack of accountability and concerns about preserving democracy


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Negative Impacts on Security Awareness

  • More security lapses

  • Lack of accountability and weaker security over time

  • Cost-effective security


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More security lapses Awareness

  • The positive effects of information sharing

    • More “good guys”/enforcers get to see the data

  • The negative effects of information sharing

    • More “good guys”/enforcers get to see the data

  • State and local officials -- quality of systems?

  • International officials -- money laundering data shared with many governments

  • When have leaks, the rogue enforcers have access to far more data than before


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Lack of Accountability and Weaker Security over Time Awareness

  • Mantra of computer security experts: “There is no security through obscurity”

    • Fix your vulnerabilities, don’t try to hide them

    • If you try to hide them, only the “bad guys” will learn about the weaknesses

    • Essential role of peer review to maintaining quality of system security over time

    • Gag rules on whistleblowers lead to systematically greater vulnerabilities over time


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Cost-effective Security Awareness

  • Implicit assumption of Total Information Awareness -- More Data is Better

  • Is the goal “total” information?

  • Or is it the most cost-effective measures that actually improve security?

  • Better security to focus on the most effective actions rather than the chimera of “total” information and control


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Negative Impact on Privacy Awareness

  • Just gave reasons for believing TIA creates weaker security over time

  • And it creates weaker privacy

  • Sensitive data sought for TIA -- medical, financial, communications, etc.

  • Chilling effects and less freedom if all of us always under surveillance


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Privacy Effects & Risk Profiles Awareness

  • Individuals will be assigned terrorist risk scores, like credit scores

  • Where have “high risk profile”, then government will act

  • Expect many “false positives” -- government has to act before it is certain that someone is a terrorist

  • False (and true) positives get put on “watch lists”


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Privacy Effects & Watch Lists Awareness

  • WSJ article on FBI watch list after 9/11

    • Many innocent people on the watch list

    • Employers and others received the list

    • The list morphed, with mistakes, over the Internet

    • No access or correction for individuals who were wrongfully on the list

  • A return to the blacklists and secret dossiers of the anti-Communist era


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Preserving Accountability and Democracy Awareness

  • We have gone down the TIA path before

    • Maximize government surveillance

    • Minimize disclosure to the public

  • My IAPO speech in Chicago and the history of “The Lawless State: The Crimes of the U.S. Intelligence Agencies”


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“The Lawless State” Awareness

  • Surveillance and smears of MLK, Jr.

  • FBI infiltration of political groups

    • FBI agents in KKK to Black Panthers, including participating in bombings, etc.

    • “Fringe groups”? Large fraction of delegates to 1972 Democratic National Convention under surveillance

    • Blackmail files on political officials

  • IRS & CIA abuses


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Reactions to the Lawless State Awareness

  • Title III (1968) -- federal wiretap standards

  • Privacy Act, 1974 -- no secret dossiers

  • Government in the Sunshine

    • FOIA Amendments, 1974

    • Open meeting & whistleblower laws

  • Foreign Intelligence Surveillance Act, 1978

  • Electronic Comm. Privacy Act, 1984


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Summary on the Lawless State Awareness

  • The Lawless State Round 1: history of abuse of power and lack of accountability

  • We built laws and institutions to:

    • Limit surveillance

    • Protect privacy

    • Create openness in government

    • Promote accountability

  • Has unaccountable and secretive government changed so we can ignore the history?


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Concluding Remarks Awareness

  • The Poindexter program of Total Information Awareness was unanimously shut down by Congress

  • The Administration philosophy of Total Information Awareness, however, continues unabated

    • Patriot II proposal in 2003


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What To Do? Awareness

  • Those of us outside government have a responsibility to voice the threat of TIA to security, privacy, and democracy

  • Inside the government, there needs to be someone at home on these issues -- in Homeland Security, OMB, & elsewhere

  • We must remember the history of the Lawless State, or we may be doomed to repeat it


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