Security, Civil Liberties
and Freedom
Suggested Remarks to the Eugene City Club
Senator Ron Wyden – July 3, 2003
Thanks so much for having me back.
If you watch the news at all, you hear a lot about the power struggles
going on back in Washington these days. The news is full of stories about
conservatives wanting this, while liberals want that. The House wants
that, while the Senate wants this. To me, though, one of the most important
struggles in Washington right now has been quiet – too quiet for
my taste. It’s the tug of war between protecting this nation from
terror and preserving the freedoms that make America worth protecting.
I think it’s particularly appropriate for us to talk about this
struggle as the country prepares to celebrate the 4th of July.
This country was founded on principles of freedom by people who wished
to live as they please, to worship as they please, to have a stake in
a government in exchange for the taxes they paid. Think about it: people
were willing to cross oceans, willing to risk death and to build a nation
where there was none to ensure those freedoms for themselves. Two hundred
and twenty-seven years later, Americans are no less passionate about liberty.
And although it is quieter this time, the call has come to defend those
freedoms again.
In the days just after September 11, Congress passed several measures
designed to shore up national security. I don’t think any of my
colleagues thought the bills we passed were perfect bills. I certainly
didn’t think so. They did contain important measures for the time.
But now, with almost two years’ perspective on the September 11
tragedy, I believe that Congress has the opportunity – and really,
a duty – to strike a more proper balance between security and civil
liberties.
Right now, the Executive Branch has greater powers to pursue potential
enemies to the U.S. than at any time since World War II. Now, the Bush
administration is asking for more powers to look for terrorists in America.
These powers could let the federal government spy on law-abiding Americans
in increasingly sophisticated and invasive ways.
At first blush, that might sound like a good idea. If you snoop on everyone
all the time, you’re more likely to spot a few criminal someones
at the moment they’re up to no good. But the problem is, that’s
not how this great country is supposed to work. The police can’t
just stop someone on the street and frisk them for no reason. Current
privacy law is supposed to prohibit private companies and the government
from rummaging through your online records.
Unfortunately, some of these proposals would just pick regular Americans
up by the ankles and shake them to see if anything funny falls out. To
me, powers like that are too broad to be acceptable.
I believe that it’s possible, and absolutely essential, to fight
terrorism vigorously without cannibalizing civil liberties. That’s
why I’ve made it my business to draw a bright line between the powers
necessary for protection, and the ones that start us down the slippery
slope to less freedom.
The struggle to figure out just where that line should be has crystallized
in four major areas. Three are in Federal law: the Total Information Awareness
Program, now known as Terrorism Information Awareness. The CAPPS II program,
which is the Transportation Safety Administration’s Computer-Assisted
Passenger Profiling System. And, the Patriot Act and the possibility of
a Patriot II. The fourth was in our own state of Oregon: this state became
a seminal battleground for security and civil liberties just a couple
of years ago. I’d like to spend a few minutes sharing with you what
I’ve learned in my focus on these issues.
Have you ever heard a more chilling name for a program than the Total
Information Awareness? When the first hue and cry went up about this idea,
I wasn’t surprised. TIA is, without a doubt, the most sweeping surveillance
program ever proposed in the United States. When folks voiced their concerns
at the outset, Admiral John Poindexter at least had the sense to scrap
the creepy-looking logo with the pyramid and the eye. Just last month
the name of the program changed to Terrorism Information Awareness. But
trust me when I tell you that the underlying purpose of TIA has not changed
one whit.
Part of the TIA concept requires keeping track of individuals and understanding
how they fit in to models. For instance, does a seemingly innocent individual
conduct himself or herself according to a pattern that terrorists have
exhibited in the past?
To find out whether any current U.S. citizens fit the model of a terrorist,
the TIA program would integrate the databases that already track our daily
lives – like bank records, online purchases, and travel plans. Once
integrated, these databases would serve as one big repository of information
on most or all of the computer-linked transactions an individual makes.
Then TIA would run the models – and see who looks like a terrorist.
This technology would let Federal agencies develop risk profiles for millions
of Americans as they look for questionable conduct.
Now, I understand that terrorists aren’t going to hang a shingle
outside their hideaways announcing they’ve set up shop. I’m
a member of the Intelligence committee. I know that extraordinary times
call for extraordinary measures to track down these guys. I won’t
take a back seat to anyone on the relentless pursuit of known and suspected
terrorists – I even wrote a law creating a single government-wide
database to track actual terror suspects. But I couldn’t stand by
while the government proposed to shine a spotlight into the private lives
of law-abiding citizens who are supposed to enjoy the protections of the
Constitution of the United States. In seeking to do that, the TIA program
crossed the line.
Oregonians and millions of other Americans thought so too. All across
this country, folks said that a vigorous response to terror is necessary,
but a system designed to spy on Americans in America is not. It’s
not only unnecessary – it’s contrary to the freedoms that
the war on terror aims to protect.
In my mind, such a broadly purposed program, snaking into so many areas
of Americans’ lives, cried out for Congressional oversight. So I
wrote and won passage of an amendment requiring Congressional approval
for deployment of any TIA technology to spy on U.S. citizens in the U.S.
On this one, you should be proud of your Congress. When my amendment came
to the floor, not one United States Senator disagreed that it was the
responsibility of Congress to oversee this program. Not one United States
Senator said no, Congress doesn’t need to put the brakes on the
most far-reaching government surveillance effort ever proposed.
On the contrary, my amendment passed as a matter of course. Of course
Congress had to insist on oversight of TIA. Of course such a surveillance
plan couldn’t be allowed to grow unchecked and unaccountable. Of
course it was the duty of the Senate to protect the civil liberties and
privacy of the people we represent.
The other part of the amendment Congress passed required the Defense Department
to report on its plans for developing TIA surveillance technology. I took
delivery of that report about six weeks ago, and let me tell you –
what they described left me with a lot more questions than answers. It
only reinforced my conviction that Congress needs to approve any use of
TIA technology.
First, the report made much of the fact that TIA technology will only
be used on “lawfully collected information.” Most Americans
don’t know that the laws that protect consumer privacy do not apply
when the data gets into the government’s hands. So I want folks
to understand that “lawfully collected information” includes
anything and everything. There are no laws to protect “lawfully
collected” medical records, travel records, and credit card and
financial data once it gets in the government’s hands. Plus, I’d
like someone to find me a government official who’s going to step
up and say, hey, I collected this information in a corrupt way. So that’s
not much comfort.
One line in the report talked about analysts imagining scenarios for terrorist
attacks, to create models and run folks’ records through them. I
have a couple of problems with this. The first is just the indiscriminate
checkup on random American citizens.
But the second is this: I know America has good analysts who can probably
come up with some pretty good ideas about how terrorists might strike.
But if you look back at September 11, there was more than an imagined
scenario at work. This country had evidence that should have sent us looking
at flight schools and financial transactions for 19 people who were in
this country and up to no good. I want to see a focus on evidence –
not imagination.
Government should focus its efforts on actual evidence of what’s
happening right now. If TIA technology is to be used, that’s how
it should be used. Otherwise, America will waste time, money and effort
that could go to track actual terrorists.
In the end, the TIA report showed a program developing a lot of really
high-powered technology, but didn’t offer many answers about the
plans to deploy it.
The report underscored TIA’s reliance on pattern-recognition. That’s
the exercise I described, of culling through unspecified databases looking
for patterns in financial transactions, telephone calls other activities.
But nothing explained what the plan is to keep the pattern-recognition
process from sweeping innocent Americans up in the net.
TIA wants to employ quite a bit of bioinformatics technology, like Human
Identification at a Distance and Next Generation Face Recognition. These
are really interesting technologies that can spot certain physical traits.
But the report said that quote, “biometric signatures will be acquired
from various collection sensors, including video, infrared and multi-spectral
sensors.”
As I read I thought, well, where are those sensors going to be and how
many people will they be pointed at? I’m assuming there won’t
be terrorists lining up to get their faces put in the face recognition
system, so will there be some sort of wide collection of face prints from
the public? This report didn’t say. I don’t want that technology
deployed until I know. And believe me, I’ve sent the TIA planners
a list of the questions that came up as I read this report. I’m
expecting more answers soon.
In the case of CAPPS II, the Computer Assisted Passenger Profiling System
– there are just as many unanswered questions as there are about
TIA. CAPPS II will do a computer search on every airline passenger to
determine who should be subject to more careful security screening. In
extreme cases, some people won’t be allowed to get on planes.
I=m all in favor of finding ways to be smarter about aviation security.
I’m in favor of targeting aviation security resources more efficiently.
Spending a lot of time frisking and searching people who clearly pose
no threat doesn’t do any good.
But a system that seeks information on every traveler to assign a score
to each one, indicating who may pose a threat – that raises some
very serious privacy questions with me.
I put an amendment on the air cargo security bill and the FAA reauthorization
bill to get congressional oversight of this program, too. My CAPPS II
amendment directs TSA to report to Congress on the privacy implications
of the CAPPS II system, and to answer some key questions. I intend to
make this report available to the public, just as I made the TIA report
available in May.
The only detailed written information on CAPPS II was published in the
Federal Register on January 15, 2003. It basically outlines a broad-based
program – like TIA – that will house records such as quote,
Arisk assessment reports; financial and transactional data; public source
information; proprietary data; and information from law enforcement and
intelligence sources.@ This broad array of information may then be disclosed
to quote, AFederal, State, territorial, tribal, local, international,
or foreign agencies.@ That’s it. No more details on what any of
that actually means to Joe and Mabel Citizen.
It is no wonder the public is already up in arms about this. In one survey,
82 percent of people said the program sounded like an invasion of privacy.
That just goes to show that the longer you offer such broad generalizations
and keep people in the dark about the details, the more nervous they get.
The more it seems like the government has something to hide.
Americans want to know whether CAPPS II is narrowly limited, or whether
it could become an all-purpose snooping system. Again, verbal assurances
that these technologies will be used only on Alawfully collected information@
are not enough. Americans want to know whether there are strong safeguards
to ensure that the system won=t be abused, and sound procedures to help
passengers address mistakes.
If you’ve been reading Margie Boule in the Oregonian at all, you’ve
seen her columns on the problems passengers are already having. Apparently,
one person named David Nelson is a suspect somewhere in the United States,
so every person named David Nelson is having a hard time getting on a
plane. According to Margie, there are 17 or 18 guys named David Nelson
in Oregon alone. They want the privacy issues of CAPPS II – particularly
the part about getting mistakes fixed – addressed even quicker than
I do.
I’ve met with the TSA officials spearheading CAPPS II. They make
a number of arguments that the privacy implications of the system are
not as dire as they seem. So I view the report required by this amendment
as an opportunity for TSA, not a burden or threat. If concern about CAPPS
II is based on rumors and unfounded fears, this is TSA’s chance.
They can assure both Congress and the public, officially and in writing,
that privacy concerns have been or can be addressed.
If those concerns are not addressed, then an official written report will
give Congress the information it needs to exercise oversight and establish
some real accountability for the David Nelsons of the world, and for all
of us.
That’s the growing concern, really – that there are too many
areas now in which the Administration doesn’t seem to have any accountability.
If David Nelsons are having a hard time getting through the line at the
airport, it’s not hard to imagine the Patriot Act wrecking your
life if there’s a simple mistake. That bill contained some pretty
serious powers - to declare people enemy combatants and hold them without
access to attorneys or swift due process, among others. If that didn’t
run a chill up the country’s collective spine, I’d be worried.
Some provisions in the Patriot Act do make sense, like the so-called Aroaming
wiretaps.@ We know terrorists will sometimes get twenty or thirty cell
phones, use each to make one call and then toss them. The roaming wiretap
lets a judge give wiretap authorization for ALL those phones. That’s
a reasonable investigatory power rooted in reality.
But all the parts of Patriot, like the Asneak and peek@ provision that
allows the government to perform searches without immediate notification,
should be closely monitored to prevent abuse. And I’ll be a lot
more comfortable when some provisions disappear altogether.
Many parts of the Patriot Act, particularly some that cause privacy concerns,
will sunset on January 1, 2006. There have been moves on Capitol Hill
and from the Administration to repeal the sunset clauses in the law, and
let all the Act’s powers stand indefinitely. I will tell you right
now that I am opposed to repealing the sunset. As I’ve said, there
are two years’ perspective on the events of September 11. It would
be unconscionable for Congress not to reduce and refine the sweeping powers
given to the government after that attack.
You know, in some of the darkest days of the last century, President Franklin
Delano Roosevelt said that the only thing we have to fear is fear itself.
America – and America’s leaders – would do well to remember
that. What terrorists can do to us is sobering, awful, terrifying. But
America can only be destroyed from the inside – if terrorists frighten
us into giving up the liberties we love. Bombs and murderous plots can’t
topple this nation. But fear that eclipses good governance can. I’m
determined not to see that happen. Congress has a duty to respond to even
the greatest threats with a rational – and restrained – hand.
Analyses of an early draft of “Patriot II” legislation has
raised concerns about the increased powers it might give the government
– and about the veil of secrecy it could drape around even more
government activities. I know Oregonians expect me to look closely at
any Patriot II proposal, and I will. Frankly, I don’t think Congress
should even consider a Patriot II until the privacy issues of the first
Patriot Act are addressed. That task is far from complete.
There’s no place for random investigations and virtual goose chases
in the war on terrorism. But law enforcement and intelligence officials
do need the tools to investigate suspected terrorists. Make no mistake,
I want them to have those tools. That’s why I’ve moved to
keep Oregon from becoming a safe haven for those who would harm Americans
and American interests.
In 2001 a court decision called “Gatti” placed unreasonable
constraints on Oregon investigators looking not just for terrorists, but
other bad actors as well. A State Bar Association disciplinary rule made
it unethical for attorneys to take part in any practice involving quote,
“deceit or misrepresentation.” The Federal McDade-Murtha law
mandated compliance with state ethics rules. Important undercover investigations
in this state just stopped.
The Portland Innocent Images undercover program targeting child pornography
was even shut down. The U.S. Attorney's Office had to tell the FBI: they
could no longer participate in any operations that could be deemed deceptive
by the State Bar.
Talk about frustrating: no matter how vital the investigation, no matter
how great the need, no matter how dangerous the criminals, federal, state
and local prosecutors could not even give advice to help an undercover
investigation.
Child pornographers, drug pushers, and eco-terrorists were breathing easy
in our state. They knew that law enforcement had lost its best weapon
against them.
Criminals – and not particularly sophisticated ones, who were caught
without covert investigations – admitted they set up shop in Oregon
because of the McDade situation. Then after September 11, the realization
hit hard. Oregon’s Gatti-McDade loophole gave dangerous criminals,
including terrorists, practically an engraved invitation to set up shop
here. By leaving one state vulnerable, the Gatti-McDade loophole made
every state vulnerable.
I explained to my colleagues that without advice of counsel, law enforcement
operatives in Oregon could not conduct wiretaps, sting operations, or
infiltrate dangerous criminal operations. And I made it clear that if
the anti-terrorism legislation we were considering only worked in 49 states,
it didn’t work at all.
Luckily, the Oregon State Bar Association saw the Gatti-McDade loophole
for what it really was. It was an issue of state and national security,
not the political football some folks in Washington made it out to be.
By amending ethics rules to allow supervision of covert investigations,
the Bar Association paved the way for cooperation between prosecutors
and law enforcement – and untied the hands of attorneys and police
on the front lines. I was proud to play a role in that.
I want to go after the Mohammed Attas of the world. I want to keep this
country safe for my own children and for all America’s families.
I just don’t believe to build dossiers on millions of law-abiding
citizens to do that.
Now is the time for vigilance – against terrorism, and against tyranny.
Now is not the time to charge headlong into new government powers that
threaten Americans’ privacy even more. It’s the time to go
back and fix the things that haste or necessity prevented from being perfected
in the first place.
Make no mistake; there are folks in Washington who disagree with me. Already,
some in Congress and in the Administration have started trying to chip
away at the congressional approvals required by my TIA amendment. They
don’t think CAPPS II needs further inquiry. They want Patriot II,
Patriot III. But there’s a strong and diverse force of folks who
do support congressional oversight of these programs.
Just a few months ago I stood in a room in the U.S. Capitol with representatives
from groups as disparate as the American Civil Liberties Union and the
Eagle Forum. They were there to express concern about the privacy implications
of TIA and other government surveillance initiatives. Reservations don’t
get more ideologically widespread than that. And there’s a good
reason folks are concerned across such a broad spectrum.
Some people say that much of the information TIA and CAPPS II will examine
is already shared in the private sector, and so you shouldn’t be
concerned. They say if you keep your nose clean, Patriot and Patriot II
won’t affect you at all. But these proposals build on surveillance,
information-sharing and law enforcement policies that already threaten
the privacy of the American people. They combine those policies into huge
efforts that could undermine privacy protections once and for all.
Just because this Administration promises not to use the awesome power
they’re seeking for nefarious purposes today doesn’t mean
future leaders wouldn’t abuse it. Letting these programs move forward
without ensuring permanent safeguards and protections would threaten Americans
not just today, but many years into the future.
That’s why Congress has a special task: to be vigilant against any
proposal that would compromise the bedrock of this Nation – our
Constitution. If TIA and other initiatives move forward at all, they have
to do so in a fashion that is sensitive to American freedoms, while still
ensuring that our Nation can fight terrorism.
America was literally founded on a dream of freedom – and that dream
of freedom came true. Our task now is to preserve the liberty that was
dreamed for us more than two hundred years ago. This is a good country.
Not a perfect one – but a great one. It is worth celebrating every
Fourth of July. It is worth protecting every day. Oregonians should know
I’ll do all in my power to safeguard this nation and the liberties
that make it great. That’s my promise on this Independence Day eve.
That’s my promise to you always.
Thank you.
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