Re:      Comments of the American Civil Liberties Union to the Department of Homeland Security Regarding the Proposed Automated Targeting System [Privacy Act of 1974: System of Records; Automated Targeting System, DHS6-2006-0060, 71 Fed. Reg. 64,543]

The ACLU is a nationwide, non-partisan organization of more than 500,000 members dedicated to protecting the principles of liberty, freedom, and equality set forth in the Bill of Rights in the United States Constitution.  For almost 80 years, the ACLU has sought to preserve and strengthen privacy and equality in American life.

The Department of Homeland Security announced in a November 2, 2006 notice in the Federal Register its intention to institute a program that involves the creation of security ratings of American citizenstens of millions of travelers.  It announced that the program would go into effect on December 4, 2006.

This program represents a monumental change that will have profound effects on Americans’ privacy.  In brief, it:

• Will put the government into the business of creating “security ratings” for millions of its own citizens, an unprecedented step with the potential to alter the relationship between the state and the individual.

• Illegitimately claims sweeping exemptions from the Privacy Act, a law that was passed specifically to prevent law enforcement from keeping files or databases on innocent people not suspected of a crime.

• Will likely make judgments based on government databases that we know are already riddled with errors. 

• Will leave individuals without vital rights to review, correct or challenge security ratings or the information on which they are based.

For further details on these problems, we commend for your consideration the incisive comments on this program that have been filed by the Electronic Frontier Foundation (EFF) and the Electronic Privacy Information Center (EPIC) group.   

Instead, we will confine ourselves here to urging in the strongest possible terms that the Department, if it will not withdraw this proposal altogether, at a minimum extend the public comment period to a reasonable period that will allow for interested parties to provide proper analysis and for the Department to adequately consider those comments.

As the EFF and EPIC group’s comments make clear, this program represents a monumental change that will have profound effects on Americans’ privacy, and is in questionable conformance with the Privacy Act.  The creation of security ratings of innocent people in the United StatesAmerican citizens is something that has proven highly controversial in the past, and which the American Civil Liberties Union and many other groups and individuals have previously objected to with the greatest vehemence. 

And yet the program’s Privacy Impact Assessment (PIA) was not made available to the public until November 27 – only one week before the program is slated to go into effect.  Given that the PIA represents the most comprehensive explanation of the system provided to the public, that is simply not a reasonable amount of time.  It does not allow respondents to adequately analyze the privacy impact statement and its implications, formulate comments articulating that analysis clearly, and submit them with time for DHS to properly consider them before the program becomes effective. 

To make matters worse, even the original, incomplete publication in the Federal Register notifying the public of the Department’s plans was filed barely 4 weeks before the plan is slated to go into effect.  The notice states that the program will go into effect “unless comments are received that result in a contrary determination,” and as practical matter there is no time between when many comments will be received and the program will go into effect. There is essentially no time for comments to be distributed, considered and discussed within the Department. Thus, the Department’s commitment to meeting its stated schedule for instituting this substantial change clearly suggests that the Department has little intention of giving the comments that are received a proper review.  

This cursory treatment, which borders on a sham, is far less than is warranted by the historic, unprecedented step of putting the government into the business of creating mass security ratings of American citizensindividuals which are then retained in government databases for 40 years. 

We urge the Department to withdraw this proposal, for the reasons articulated by EFF and EPIC.  But at the very least, it must extend the public comment period to a reasonable period that will allow for interested parties to provide extended analysis based on both the Privacy Act notice and the PIA. 

Sincerely,

Caroline Fredrickson
Director, Washington Legislative Office

Barry Steinhardt
Director, Technology and Liberty Project

Timothy Sparapani
Legislative Counsel for Privacy Rights