White House willing to negotiate on homeland security privacy concerns

A top Bush administration management official said that the White House would be willing to negotiate with members of a House Judiciary subcommittee who raised privacy concerns about the proposed Homeland Security Department. Separately, the subcommittee favorably voted on a privacy bill.

The official, Office of Management and Budget Controller Mark Everson, said that the administration would not object to the creation of a chief privacy officer position within the department and would compromise on Freedom of Information Act (FOIA) exemptions written into its draft legislation, H.R. 5005.

Republicans and Democrats at a hearing of the House Judiciary Subcommittee on Commercial and Administrative Law questioned whether the new department sufficiently would protect privacy, echoing complaints voiced by Peter Swire, the Clinton administration's privacy counselor.

In his testimony, Swire criticized the provision covering information-sharing among federal agencies within the bill, and compared it to a runaway truck that "is all accelerator but with no brakes" and to piling more hay onto a haystack hiding a needle.

Swire said that H.R. 5005 needs "better institutional checks and balances for privacy and other issues," including the creation of a chief privacy officer, and should be amended to add language ensuring that its components agencies will not neglect important functions that do not relate to terrorism.

He also criticized the bill's Section 201 (creating an undersecretary for information analysis and infrastructure) for neglected values besides enhancing computer security and Section 203 (broadening federal information-sharing) for potentially jeopardizing privacy, and urged the deletion of Section 204, which exempts computer-network information from the Freedom of Information Act.

"If everyone in the process is concerned about short-term gains to homeland security, who will make sure the process considers alternative" approaches, Swire said. The role of a privacy officer is "emphatically not to have privacy trump [other values] but to make sure they are well-vetted in the decision-making process."

He noted that the OMB civil servant tasked with assuring compliance with existing federal agency privacy laws is on leave and has been replaced with an intern.

Everson largely ignored Swire's testimony, but when pressed by ranking member Rep. Mel Watt, D-N.C., he said that it was important to define the department's mission as one of combating terrorism.

"There was a clear feeling that we wanted to have a large department, accountable to the American people of having a primary mission of securing the homeland," he said. "That doesn't mean that those other areas entrusted under law will be excluded, but there needs to be a tipping of their focus."

While he voiced no objection to the privacy-officer proposal, he said the administration would resist the complete elimination of FOIA exemptions.

"We are working on the FOIA language," he said in an interview after the hearing. "We recognize we need to make changes."

Separately, the subcommittee reported H.R. 4561 to the full committee on a voice vote. Sponsored by subcommittee Chairman Bob Barr, R-Ga., the bill would require all federal agencies to conduct "privacy impact statements" about any changes in federal regulation.