The American Civil Liberties Union commends you for introducing the Privacy Officer With Enhanced Rights Act (POWER Act).  This legislation and its companion bill in the House, H.R. 3041, are an important step towards ensuring that the Department of Homeland Security’s Privacy Officer has all the tools needed to carry out the mission Congress envisioned for the office when it created the Department of Homeland Security (“DHS”).  The POWER Act will allow the Privacy Officer to better protect the privacy rights of all Americans by providing important oversight of DHS, which handles extensive amounts of sensitive personal information on Americans.

The original Congressional intention of the DHS Privacy Officer’s authority has not yet been achieved.  The Homeland Security Act of 2002 mandated the creation of a senior official to assume responsibility for DHS privacy policies.  Specifically, this official is to assure that new technologies do not erode the personal privacy of Americans, evaluate new proposals concerning the use of personal data, assure that DHS is in full compliance with the Privacy Act of 1974, and to report to Congress on an annual basis any activities that impact privacy including “complaints of privacy violations, implementation of the Privacy Act of 1974, internal controls, and other matters.” 

Congress, however, failed to endow this position with the necessary investigative powers necessary to fulfill these duties.  Currently, the Privacy Officer must rely on voluntary submission of information to conduct investigations.  For example, when the Privacy Officer attempted to investigate the disclosure of JetBlue passenger information by the Transportation Security Administration to the Department of Defense, its requests for information were repeatedly rebuffed preventing a comprehensive investigation.  The shortcomings of this process prevent the Privacy Officer from being an effective advocate for the privacy rights of Americans.

The POWER Act addresses these problems by providing the Privacy Officer with the tools and independence necessary to conduct investigations and thereby fulfill the duties charged to the position by Congress in 2002.  This legislation empowers the Privacy Officer to access all records deemed necessary, undertake any investigation deemed appropriate, subpoena documents, and obtain sworn testimony.  This legislation also directs the Privacy Officer to submit reports directly to Congress without prior amendment by other Department officials, helping to protect the position from internal censorship. 

The POWER Act is an important piece of legislation to help ensure that the privacy rights of Americans are not being violated by their own government by providing crucial internal oversight.  We commend you for introducing this important piece of legislation, the Privacy Officer With Enhanced Rights Act, and pledge to work with you to ensure its passage.

Sincerely,                

Caroline Fredrickson   
Director                                     

Timothy Sparapani
Legislative Counsel