Opening Statement Of Sen. Patrick Leahy
Senate Judiciary Committee,
Hearing On "Balancing Privacy And Security:
The Privacy Implications Of Government Data Mining Programs"
January 10, 2007

Today, the Senate Judiciary Committee holds an important hearing on the privacy implications of government data mining programs. 

This Committee has a special stewardship role in protecting our most cherished rights and liberties as Americans, including the right to privacy.  Today’s hearing on government data mining programs is our first in the new Congress. It is the first of what I plan to be a series of hearings on privacy-related issues throughout this Congress.

The Bush Administration has dramatically increased its use of data mining technology -- namely, the collection and monitoring of large volumes of sensitive personal data to identify patterns or relationships.  Indeed, in recent years, the federal government’s use of data mining technology has exploded, without congressional oversight or comprehensive privacy safeguards.  According to a May 2004 report by the General Accounting Office, at least 52 different federal agencies are currently using data mining technology, and there are at least 199 different government data mining programs operating or planned throughout the federal government.

Advances in technologies make data banks and data mining more powerful and more useful than ever before.  These can be valuable tools in our national security arsenal, but we need to ensure we use them appropriately and with the proper safeguards so that they can be most effective. 

One of the most common – and controversial – uses of this technology is to predict who among our 300 million people are likely to be involved in terrorist activities.  According to the GAO and a recent study by the CATO Institute, there are at least 14 different government data mining programs within the Departments of Defense, Justice, Homeland Security and Health.  That does not include the NSA’s programs.

Congress is overdue in taking stock of the proliferation of these databases that increasingly are collecting and sifting more and more information about each and every American.

Although billed as counterterrorism tools, the overwhelming majority of these data mining programs use, collect, and analyze personal information about ordinary American citizens.  Despite their prevalence, these government data mining programs often lack adequate safeguards to protect privacy and civil liberties. 

Just recently, we learned through the media that the Bush Administration has used data mining technology secretly to compile files on the travel habits of millions of law-abiding Americans.  Incredibly, under the Department of Homeland Security’s Automated Targeting System program (“ATS”), our government has been collecting and sharing this sensitive personal information with foreign governments and even private employers, while refusing to allow U.S. citizens to see or challenge their own so-called “terror scores.”

Following years of denial, the Transportation Security Administration (“TSA”) has finally admitted that its controversial “Secure Flight” data mining program – which collects and analyzes airline passenger data obtained from commercial data brokers – violated federal privacy laws by failing to give notice to U.S. air travelers that their personal data was being collected for government use.

And last month, The Washington Post reported that the Department of Justice will expand its ONE-DOJ program – a massive data base that will allow state and local law enforcement officials to review and search millions of sensitive criminal files belonging to the FBI, DEA and other federal law enforcement agencies.  This will make sensitive investigative information about thousands of individuals – including those who have never been charged with a crime – available to local and state law agencies.

Without the proper safeguards and oversight of these and other government data mining programs, the American people have neither the assurance that these massive data banks will make us safer, nor the confidence that their privacy rights will be protected.  In addition, there are legitimate questions about whether data mining technology is actually effective in identifying risks or terrorists.    

A recent CATO Institute study also found that data mining is not an effective tool for predicting or combating terrorism, in part because of the high risk of false positive results.  A front-page article several months ago included interviews with experts who conceded how ineffective and haphazard these programs have been. We need look no further than the government’s own terrorist watch list, which now contains the names of more than 300,000 individuals – including infants, nuns, and even members of Congress – to understand the inefficiencies that can result from data mining and government dragnets.  If these databases are being used in ways that create more wheel-spinning that saps critical investigative resources from effective tasks, we need to know that so we can use our tools and our talent more efficiently to get the real results in needed in thwarting terrorism.  We also need to understand that a mistake in a government data base could cost a person his or her job, sacrifice their liberty, and wreak havoc on their life and reputation.  

Given the many challenges posed by this technology, we in Congress must do our part to examine data mining technology and to ensure that government data mining programs actually do keep Americans safe – not just from enemies abroad, but also from abuses at home. 

We begin that important task today.  I am joining with Senator Feingold, Senator Sununu and others in a bipartisan attempt to provide congressional oversight to these programs.  We are introducing the Federal Agency Data Mining Reporting Act of 2007.  This threshold privacy legislation would begin to restore key checks and balances by requiring federal agencies to report to Congress on their data-mining programs and activities.  We joined together to introduce a similar bill last Congress.  Regrettably, it received no attention.  This year, I intend to make sure that we do a better job in considering Americans’ privacy, checks and balances, and the proper balance to protect Americans’ privacy rights while fighting smarter and more effectively against security threats. 

This legislation takes a crucial first step in addressing these concerns by pulling back the curtain on how this Administration is using this technology.  It does not prohibit the use of this technology, but rather provides an oversight mechanism to begin to ensure it is being used appropriately and effectively.  Our bill would require federal agencies to report to Congress about its data mining programs.  The legislation provides a much-needed check on federal agencies to disclose the steps that they are taking to protect the privacy and due process rights of American citizens when they use these programs.  

We need checks and balances to keep government data bases from being misused against the American people.  That is what the Constitution and our laws should provide.  We in Congress must make sure that when our government uses technology to detect and deter illegal activity, the government does so in ways that also protect our most basic rights and liberties, and in ways that limit opportunities for abuse of these powerful tools.  Our bill advances this important goal.

I thank Chairman Specter for scheduling this hearing at my request while the Republican caucus proceeds to deliberate Committee reorganization, and I thank our distinguished panel of witnesses for appearing here today.

# # # # #