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CAN THE USE OF FACTUAL DATA ANALYSIS

STRENGTHEN NATIONAL SECURITY? PART TWO

HEARING

BEFORE THE

SUBCOMMITTEE ON TECHNOLOGY, INFORMATION

POLICY, INTERGOVERNMENTAL RELATIONS AND

THE CENSUS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

MAY 20, 2003

Serial No. 108–98

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

JOHN SULLIVAN, Oklahoma

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

WILLIAM J. JANKLOW, South Dakota

MARSHA BLACKBURN, Tennessee

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

CHRIS BELL, Texas

———

BERNARD SANDERS, Vermont

(Independent)

PETER SIRH, Staff Director

MELISSA WOJCIAK, Deputy Staff Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHILIP M. SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON TECHNOLOGY, INFORMATION POLICY, INTERGOVERNMENTAL

RELATIONS AND THE CENSUS

ADAM H. PUTNAM, Florida, Chairman

CANDICE S. MILLER, Michigan

DOUG OSE, California

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

BOB DIX, Staff Director

SCOTT KLEIN, Professional Staff Member

URSULA WOJCIECHOWSKI, Clerk

DAVID MCMILLEN, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on May 20, 2003 ............................................................................... 1

Statement of:

Rosenzweig, Paul, senior legal research fellow, Center for Legal and

Judicial Studies, the Heritage Foundation; Barry Steinhardt, director,

technology and liberty program, American Civil Liberties Union; and

John Cohen, co-founder, president and CEO, PSCOM LLC, Inc. ............. 8

Letters, statements, etc., submitted for the record by:

Cohen, John, co-founder, president and CEO, PSCOM LLC, Inc., prepared

statement of ................................................................................................... 58

Miller, Hon. Candice S., a Representative in Congress from the State

of Michigan, prepared statement of ............................................................. 7

Putnam, Hon. Adam H., a Representative in Congress from the State

of Florida, prepared statement of ................................................................ 4

Rosenzweig, Paul, senior legal research fellow, Center for Legal and

Judicial Studies, the Heritage Foundation, prepared statement of .......... 10

Steinhardt, Barry, director, technology and liberty program, American

Civil Liberties Union, prepared statement of ............................................. 29

(1)

CAN THE USE OF FACTUAL DATA ANALYSIS

STRENGTHEN NATIONAL SECURITY? PART

TWO

TUESDAY, MAY 20, 2003

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON TECHNOLOGY, INFORMATION POLICY,

INTERGOVERNMENTAL RELATIONS AND THE CENSUS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10:04 a.m., in room

2154, Rayburn House Office Building, Hon. Adam H. Putnam

(chairman of the subcommittee) presiding.

Present: Representatives Putnam, Miller, Turner, Clay and

Lynch.

Staff present: Bob Dix, staff director; John Hambel, senior counsel; Scott Klein, Chip Walker, Lori Martin, and Casey Welch, professional staff members; Ursula Wojciechowski, clerk; Suzanne

Lightman, fellow; Bill Vigen, intern; David McMillen, minority professional staff member; and Jean Gosa, minority assistant clerk.

Mr. PUTNAM. A quorum being present, this hearing of the Subcommittee on Technology, Information Policy, Intergovernmental

Relations and the Census will come to order.

Good morning and welcome to today’s hearing entitled, ‘‘Can the

Use of Factual Data Analysis Strengthen National Security, Part

Two.’’

With today’s continued improvements in technology, particularly

in the areas of data base exploration and information sharing, Federal agencies faced with the monumental task of enhancing national security and law enforcement are provided a number of opportunities to do so more effectively. Specifically, the process of factual data analysis enables the end user to sort through massive

amounts of information, identifying patterns of interest to its user

in a matter of seconds. This type of tool has proven beneficial in

a variety of applications and could have considerable implications

for law enforcement and Federal authorities tasked with identifying terrorist activity before it strikes.

At the same time, there are valid questions and concerns about

the Government’s potential access to the personal information of

individual citizens that could be the subject of a data mining process. While it is important that the Federal Government utilize all

available resources to enhance national security, it is critical that

we continue to safeguard American values of personal freedom and

privacy.

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Today’s hearing will focus on examining the questions and concerns surrounding the Federal Government’s use of factual data

analysis or information produced by this analytical process. With

the wealth of technology available today and certainly as a result

of the events of September 11, 2001, the American people have a

realistic expectation that government and law enforcement entities

must continue their efforts to become better equipped to perform

their duties.

Many Federal agencies do not even have the technological tools

that the private sector currently possesses. In many cases, this

means that agencies are undergoing a complete technology upgrade

as well as introducing advanced information technology applications. Advanced technology will enable Government to better share

and analyze important information. By making use of these tools,

Government and law enforcement hope to be more successful at securing and protecting our Nation.

As Government and law enforcement begin to implement new

strategies using advanced technology such as data mining, there

are a number of questions and concerns that need to be addressed.

These agencies will need to address how existing privacy laws

would apply to their programs, what data sources do they intend

to draw from, how the reliability of the data will be ensured, what

procedures are in place to secure the data collected from intrusion,

and what recourse would be available to an individual who believes

his or her information is inaccurate or incomplete.

We have held previous hearings on this topic. On May 6, the subcommittee heard from representatives from the Total Information

Awareness Program run by the Defense Advanced Research Project

Agencies, the Transportation Security Administration’s CAPPII

Program which is a passenger pre-screening process, the FBI’s Trilogy, related data warehousing and data mining programs.

What we learned from each of these witnesses is that they are

in the very infant stages of developing their strategies involving

this analytical process. They have testified that as they continue to

figure out what role factual data analysis will play, each acknowledge and affirm their commitment to protection of privacy and personal freedom as fundamental elements of their program.

Today, we will hear from an expert panel of witnesses who will

address the matter of privacy, confidentiality and personal freedom

in the context of the protection of civil liberties in the pursuit of

homeland security and strengthen law enforcement. The members

of the subcommittee look forward to hearing the observations and

recommendations from this panel and to continue to examine these

matters to determine if in fact factual data analysis can strengthen

national security.

The use of advanced information technologies does not mean the

erosion of personal liberties is inevitable. The Federal Government’s objective of better information sharing and analysis can and

must be met simultaneously with that of securing personal liberties. The subcommittee looks forward to working with these

agencies and the variety of stakeholders in this matter in implementing their planned proposals for enhancing homeland security

using advanced information technology.

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Today’s hearing can be viewed live via Web cast by going to reform.house.gov and clicking on the link under live committee

broadcast.

I am pleased to yield to the distinguished vice chairman of the

subcommittee, the gentlelady from Michigan, Mrs. Miller, for her

opening statement.

[The prepared statement of Hon. Adam H. Putnam follows:]

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Mrs. MILLER. Thank you, Mr. Chairman.

As we begin the third subcommittee hearing on factual data

analysis, the issue of privacy protection becomes exceedingly important. In previous hearings as you mentioned, we heard testimony

from representatives of the Department of Defense, the Transportation Security Administration, and the FBI, all insisting that the

privacy of citizens would not be compromised and certainly that

those agencies are very sensitive to concern raised about the invasion of personal privacy by Big Brother or by Government.

In the written testimony submitted for today’s hearing by Mr.

Rosenzweig, he states, ‘‘Fundamental legal principles and conceptions of American Government should guide the configuration of

our intelligence and law enforcement rather than the reverse.’’ One

of the hallowed principles certainly of our American system is that

we the people determine what the government can and cannot and

should not do, not the other way around.

This subcommittee has primary oversight of the technology initiatives of the Federal Government and as Federal agencies begin

to integrate and streamline information technologies, it is very important that the processes associated with Federal actions remain

transparent so that the confidence of the American people is not

lost. We find ourselves today in a highly salient national debate

concerning the balance between national security and personal privacy. Factual data analysis is a tool that will better enable local,

State and Federal officials to secure the homeland from terror attacks and because of the power and the breadth of capabilities associated with this tool, both now and in the future, high scrutiny

of its implementation is required.

Mr. Cohen, in his written testimony, has cited instances where

the potential for abuse of factual data analysis will be ever present

but potential abuse exists currently in all levels of Government activity and hopefully through the work of this subcommittee, we can

help Americans view the implementation of improved data mining

techniques and its homeland security benefits with cautious optimism and not with fear. I am confident that the rights of American

citizens outlined by the Constitution and the Bill of Rights will not

be subverted in the auspices of national security.

I want to thank all three of the witnesses for coming today. I am

looking forward to working with our chairman and this committee

and I look forward to your testimony today.

[The prepared statement of Hon. Candice S. Miller follows:]

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Mr. PUTNAM. We thank the gentlelady from Michigan and appreciate her very active involvement in the work of this subcommittee.

The wealth of experience she brings from the Michigan Department

of State has proven very valuable to this subcommittee. We appreciate your continued involvement.

As is the custom with the committee and its subcommittees, we

will swear in our witnesses.

[Witnesses sworn.]

Mr. PUTNAM. As you are all aware, we have the lighting system.

You have submitted your written statements for the record and we

ask that you summarize your oral statement in 5 minutes at which

time you will see the yellow light indicating the need to wrap up

and the red light indicating that time has expired.

I will introduce the first of our three witnesses, Mr. Paul

Rosenzweig, senior legal research fellow, the Heritage Foundation,

Center for Legal and Judicial Studies. Before coming to Heritage,

he was in private practice specializing in Federal, appellate and

criminal law and legal ethics. Previously he served as senior litigation counsel and associate independent counsel, Office of the Independent Counsel. Before working at OIC, he worked as the chief

investigative counsel for the House Committee on Transportation

and Infrastructure where his work included the 1996 Value Jet

crash. He received his law degree cum laude from the University

of Chicago in 1986.

Welcome. You are recognized.

STATEMENTS OF PAUL ROSENZWEIG, SENIOR LEGAL RESEARCH FELLOW, CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION; BARRY STEINHARDT, DIRECTOR, TECHNOLOGY AND LIBERTY PROGRAM, AMERICAN

CIVIL LIBERTIES UNION; AND JOHN COHEN, CO-FOUNDER,

PRESIDENT AND CEO, PSCOM LLC, INC.

Mr. ROSENZWEIG. Thank you, Mr. Chairman.

Thank you for the invitation to come and speak with you today

about a topic I consider to be the single most important domestic

legal issue facing Congress and the American people.

I should begin with the routine request of my Foundation that

I emphasize I am here on my own account and nothing I say is a

corporate position of the Heritage Foundation or its board of trustees.

Before speaking to TIA and CAPPSII directly, I would like to

talk about a subject to which both of you alluded in your opening

statements, the role of Congress and the vital importance of that

role.

I had the pleasurable experience of meeting a couple weeks ago

with Lord Alexander Carlisle who is a Lord of the House of Lords

in Great Britain. As you know, Great Britain has passed a series

of laws similar to our own Patriot Act which all involve the difficult

question of tradeoffs between civil liberties and national security.

Pursuant to that law, one of the unique steps the English have

taken is that the law requires the appointment of an independent

reviewer who has the power to review all the records within the

holding of the Home Secretary whenever he undertakes some exercise of the newly granted terror powers, and is empowered to reVerDate 11-MAY-2000 12:29 Mar 17, 2004 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 D:\DOCS\91646.TXT HGOVREF1 PsN: HGOVREF1
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port on those uses of the anti-terror provisions to the Parliament.

Lord Carlisle is that independent reviewer and he was here in the

United States to do a bit of his own comparative analysis, examining how we in America have dealt with the balance.

We don’t have such a person in our provisions of the Patriot Act

and in our developing understanding of TIA and CAPPS. Congress

is that position. They are the independent reviewer. The genius of

the founders was the system of checks and balances and the core

of that genius is the use of thoughtful, sustained, non-partisan

oversight of the use of the powers we give the executive branch.

There are some who would say the potential for abuse of a new

system means we should forego its development. Of course any new

system can be abused, but, in my judgment, the right answer is to

attempt rationally to construct the systems of oversight that will

enable this Congress and Congresses that come after it to examine

the conduct of the executive branch and determine whether or not

it is in fact appropriate and consistent with the laws we have imposed upon it.

That is my single most significant and sustained recommendation to you as you consider TIA and CAPPSII. The real questions

about things like CAPPSII are not whether it will work, because

in the end we will find the answer and if it doesn’t work, then a

lot of this debate is moot and we may have wasted a lot of money.

In the end, it will be irrelevant.

The real question is, what if it does work. What will you be doing

to examine whether or not it is being used appropriately or inappropriately. To do that, Congress is going to need absolute, unfettered access to information about the operation of a system like

CAPPSII. What I say about CAPPSII applies equally to TIA.

In some instances, that access may require the receipt of information in a classified or confidential manner, since I know full well

the disclosure of means and methods can render them utterly useless and unreasonable, but the vital factor that you should consider

is making sure as you go down the development and authorization

path that you require the provision of information not just about

raw data, about gross numbers, but the ability for somebody, somewhere to examine individual cases. There should be an appeals

process as well outside of Congress but the ultimate and final repository of the ability to check the excessive use of governmental

authority rests in this body.

I see that my time is almost up which is amazing because I feel

I have barely begun but in deference to the committee’s time structure, and I am sure we will have the opportunity for questions, I

will stop now.

[The prepared statement of Mr. Rosenzweig follows:]

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Mr. PUTNAM. Thank you very much, particularly for your respect

for the time limit.

Our next witness is Barry Steinhardt. Mr. Steinhardt has served

as associate director, American Civil Liberties Union for the past

10 years. He was recently named as inaugural director, ACLU Program on Technology and Liberty. Mr. Steinhardt was a co-founder

of the Global Internet Liberty Campaign, the world’s first international coalition of non-governmental organizations concerned

with the rights of Internet users to privacy and free expression. He

is a member of the Advisory Committee to the U.S. census and the

Blue Ribbon Panel on Genetics of the National Conference of State

Legislatures. He was a member of the U.S. delegation to the recent

G8 Government and Private Sector Tokyo Conference on

Cybercrime. He is a 1978 graduate of Northeastern University

School of Law.

Welcome.

Mr. STEINHARDT. Thank you, Mr. Chairman and members of the

committee, for the opportunity to testify this morning.

The timeliness of your hearing could not be more apt. The explosion of computers, cameras, sensors and other technologies in the

last 10 years has brought us to the edge of surveillance society. The

fact is there are no longer any technical bars to the creation of that

surveillance society. If we don’t take steps to control and regulate

surveillance, to bring it into conformity with our values, we will

find ourselves being tracked, analyzed, profiled and flagged in our

daily lives to the degree we can scarcely imagine today, being

forced into an impossible struggle to conform to the letter of every

rule, law and societal assumption of correctness. Our transgressions, whether they are real or an imagined product of bad

data will become permanent scarlet letters that will follow us

through our lives.

We should be responding to this new threat, these new circumstances by building stronger restraints to protect our privacy

but instead, we have been weakening those restraints, loosening

the regulations. Most ominously we are contemplating the introduction of powerful new surveillance infrastructures that will tie

together all this information. The Total Information Program [TIA],

and CAPPSII are prime examples of the new infrastructures for

surveillance.

DARPA has recently sought to underplay TIA. To my right you

will see two charts, both prepared by the Total Information and

Awareness Office itself. The first was published before the furor

erupted. It makes quite plain the TIA was designed to conduct a

massive search through records of 300 million Americans, including

financial, education, housing, travel, medical and communications

data.

The second, which was prepared after the furor and Congress’

passage of the Wyden amendment which prevented DARPA from

training TIA on Americans, omits all the original detail and notes

that access is ‘‘restricted by law.’’ The reality is that the only thing

that significantly restricts TIA is the Wyden amendment itself.

There is no overarching law that prohibits the Government from

gaining or buying access to most of the details of our lives from

having what Poindexter calls ‘‘total information awareness.’’

28

Our memo outlines questions we believe DARPA must answer

when it sends to the Congress your mandated report which is due

today. Consider those questions as you read the report and insist

the report be made public.

CAPPSII is portrayed by the TSA as a more effective and benign

successor to CAPPSI Program and the so-called No Fly list. The

failure of these programs to protect either our security or our freedoms is well documented. We don’t need to look into history to

speculate about what the consequences of abuse of that sort of data

will be. The No Fly list and the CAPPSI Program demonstrate

quite well and there have been literally hundreds of communications with Members of Congress that forwarded to TSA and recently revealed under a Freedom of Information Act request.

The ACLU has six questions which we urge the Congress to ask

about CAPPSII. The questions range from its cost to its fundamental fairness to how do innocent civilians correct mistakes made in

secret or are we deemed to repeat the failure of the No Fly list. Let

me highlight two questions for you. First, and I would suggest this

is the first question that should be asked about any security measures, will it work? Will we really be able to pick out a few terrorists

among 100 million Americans who fly? We urge you to heed the advice of Mark Forman of the Office of Management and Budget who

told this very subcommittee ‘‘If we can’t prove it lowers risk, it is

not a good investment for government.’’

Citing the obvious problems of error, if you stop and think about

it for a moment, even at 99.9 percent accuracy rate among the 100

million Americans who fly every year, would result in 100,000 errors each year. The problem with CAPPSII is that profiles are always one step behind the attackers. The spokesperson for DHS recently said ‘‘One thing we know about terrorists is there is no way

to predict what will happen.’’

The second question is what will be the cost to our freedom of

building a system like this? It is historical fact that government

agencies and surveillance systems alike tend to expand and not

contract, the phenomenon known as mission creep. Can we really

restrict CAPPSII to its original purpose? How long before it is extended to cover our entire transportation sector as Admiral Loy has

suggested it might, how long before the system is expanded to

reach more and more sectors of our economy and society, how long

before the data which we are told now is not going to be retained

will be retained? How long before CAPPSII becomes the Total Information Program?

Your subcommittee is performing an essential oversight role in

examining these programs and these questions. I urge you to continue to act with vigor and expedition before it is too late to turn

back the clock on the looming surveillance society.

Thank you.

[The prepared statement of Mr. Steinhardt follows:]

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Mr. PUTNAM. Thank you.

Can we pass those charts up here so the subcommittee members

can actually see them?

I will note for the record the arrival of the gentleman from Ohio,

Mr. Turner. We welcome him to the subcommittee and the record

will be open for your opening statement in the appropriate spot.

Our final witness today is John Cohen, co-founder, president and

CEO of PSCom LLC, Inc. He oversees the general corporate operations as well as the strategic development of the firm. Mr. Cohen

is also director of the Progressive Policy Institute’s Community

Crimefighting Project and co-director of the PPI Homeland Security

Task Force. He has served as a policy advisor to a number of local,

State and national administrations and political campaigns including as coordinator of the State of Maryland’s Public Safety Technology Task Force and special advisor to the Governor’s Cabinet

Council on Crime and Juvenile Justice.

Mr. Cohen has written and lectured extensively on many issues

advocating the deployment of existing and new technologies in

business practices to fundamentally change the way we provide for

the public safety in America. These issues include homeland security, counter terrorism, community policing, drug policy, public

safety and racial profiling by police.

Welcome. You are recognized.

Mr. COHEN. Thank you for the opportunity to participate in this

important hearing.

My views on this issue come from the perspective of someone

who has spent the last 20 years in law enforcement, both from the

operational oversight and policy development perspective. I have

worked counter terrorism cases as a special agent for the Office of

Naval Intelligence and worked as a police officer assigned to Federal agencies. I appreciate the opportunity to be a part of this discussion.

As we look back at what has happened in this country since September 11, I think the best way to describe how State and local

governments have responded and have been operating has been

purely in a reactive mode. It has been a reactive mode based on

non-specific and vague information that has been provided. This

shouldn’t be a surprise to everybody because prior to September 11

the information sharing amongst our Federal, State and local law

enforcement agencies was ad hoc at best, based on personal relationships very often and not supported by an integrated system of

law enforcement information sharing.

While this homeland security approach may have been appropriate for the months immediately preceding the events of September 11, Governors and mayors around the country have come to the

conclusion that from a long term perspective, they can no longer

operate in a manner in which with every threat level elevation,

they are going to take police officers out of their communities and

mobilize the National Guard to have them guard potential targets.

There is a growing consensus that our Nation’s homeland security issues should be driven by a number of basic principles. First,

the front lines of the Nation’s war on domestic terrorism are our

cities, towns and local communities. Therefore, State and local authorities must be active partners with the Federal Government and

56

develop strategic and operational plans related to homeland defense.

Second, the loss of life and financial repercussions that would result from a successful terrorist incident require that State and local

governments take a preventative approach, not just be prepared to

respond. In this regard, State and local homeland security efforts

must be information driven, proactive and focused on preventing

future attacks. This can best be done by collecting, analyzing and

disseminating critical information, not just giving it to the Joint

Terrorism Task Forces but putting systems into place so that information obtained by a beat cop in a community can flow up and be

part of the analytical mix as well as critical information flowing

down to that same beat cop.

This debate, while important, must be done in the context of the

following. Almost 21 months after the attacks of September 11, this

Nation still has not taken critical steps in creating a strong information sharing capability that allows us to conduct this collection,

analysis and dissemination of vital information. We knew connecting the dots was a problem prior to September 11 and to be quite

frank, it is still a problem now. I have spent the last 21 months

working with a number of city and State governments helping

them look at the issue of homeland security and develop plans on

how they can be better prepared to stop future acts of terrorism.

Overwhelmingly what I hear from mayors, Governors, police chiefs,

fire chiefs and public health officials is that we aren’t putting the

emphasis into prevention that we should. A critical part of those

prevention efforts is linking these information systems.

While it would be great to have systems like TIA and be able to

go into credit histories of people that potentially may be terrorists,

it would be great to have a new radar system that allows us to

identify through gait individuals. While there are amazing things

we can do with biometrics and facial recognition, the fact of the

matter is none of those systems will work if we don’t create an initial foundation of criminal justice information sharing that allows

us to share basic police information.

Many of you from this area were here last summer during the

sniper incident—3 weeks which paralyzed this region. What is incredible about that whole situation is the car that contained both

suspects in that case was stopped over 10 times by law enforcement authorities, entered into law enforcement systems and never

rose to anyone’s attention. When phone calls were being received

in the call center during the sniper incident, the information was

put on pieces of paper, stacked in piles behind the calltakers and

at some point during the day, it was disseminated to local agencies

so those leads could be followed up.

This is not an information sharing system that is going to help

us stop the next act of terrorism. As we begin the process of investing billions of dollars in homeland security, beefing up this capability has to be a top priority.

Let me conclude that as we look at expanding the information

sharing capability, oversight is a critically important part of that.

September 11, unfortunately, did not stop the fact that some in law

enforcement abuse authority, and while most cops are honorable

people, we have to make sure oversight mechanisms are in place

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to prevent abuses of information collection capability and punish

those who misuse it.

Thank you. I will respect the time rule also since everyone else

did.

[The prepared statement of Mr. Cohen follows:]

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Mr. PUTNAM. Thank you, Mr. Cohen.

At this point, I will recognize Mr. Turner if he has an opening

statement and would like to give it now.

Mr. TURNER. Thank you, Mr. Chairman. I appreciate your having

this hearing on this important issue.

As we listened to each of the testimonies, we certainly understand the importance of making certain we are protecting civil

rights and making certain we do not have political views as a basis

for discrimination in these processes or other types of discrimination we would want to avoid.

You can’t help but listen to the importance of the task that is

ahead of us to know that we must have a process of learning how

to discern what an increased terrorist threat might be. In Mr.

Steinhardt’s testimony, he used the words, how would we be able

to determine a terrorist from the 100 million Americans who fly.

I think we are all aware that in the September 11 incident we

weren’t dealing with Americans, we were dealing with people on

our soil who were carrying out an attack upon our country.

This discussion is important because we must find the balance

there has to be in this process and a way we can use information

to discern real threats without resulting to discrimination.

Thank you.

Mr. PUTNAM. We thank the gentleman and recognize the vice

chairwoman of the subcommittee, Mrs. Miller, for questions.

Mrs. MILLER. Thank you, Mr. Chairman. I have a little cold

going on today with my voice, so we will see how it holds up.

If I might followup with Mr. Cohen, I was particularly interested

in your testimony about the sniper and some of the problems the

locals had with information sharing. Is there anything you could

tell us specifically to assist us in what you might think Congress

could do, what our role is? I know so many of our States have very

strong home rule and why that is particularly important, zoning

issues and those kinds of things.

I think when it comes to national security or information sharing

amongst law enforcement agencies, again the Federal Government

has to be careful we don’t get on the slippery slope there but you

had that kind of experience with the locals. Is there anything you

see Congress should be doing quickly here to expedite some of this

information sharing that could have precluded some of the examples you used with the sniper which were quite vivid?

Mr. COHEN. I think actually Congress not only plays a critical

role but quite frankly from what I am seeing, it is not going to happen unless Congress plays a role. One thing Congress can do immediately is take a look at what homeland security funding that is

being disseminated out to State and local governments can be used

for. You hear a lot of focus on response, which is important obviously, but as you look at the requirements of what funding can be

used for, you very often do not see anything that indicates they

could use it for information sharing.

State and locals have acknowledged this has been a problem

prior to September 11. In the 1990’s, there was a program within

the Justice Department called the Integrated Justice Program

which provided support to State governments to work with localities to integrate or link these information systems. The idea was

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that as each State linked their intrastate criminal justice related

information systems, you would then be able to link the 50 States

into the Federal system.

During the sniper incident, one of the examples I didn’t use is

that a latent fingerprint was lifted from a robbery homicide in

Montgomery, AL. That print was taken by the local police department, sent to the State of Alabama where it was run through their

fingerprint system. There were no matches within the State of Alabama fingerprint system. Alabama was one of the States that was

not linked to the Federal fingerprint system.

After a call by one of the snipers where they talked about a robbery homicide in Montgomery, AL, investigators from the Sniper

Task Force traveled to Montgomery, AL, took the latent fingerprint

on a piece of paper, traveled to Washington, DC, ran it through the

Federal fingerprint system and identified the suspect Malvo. From

there, they were able to identify the other suspect and then they

were able to identify the car they were driving in a very short timeframe.

If Alabama had been linked to the Federal system, they probably

would have identified that print prior to the sniper situation and

when that car was stopped 4 hours before the first shooting in

Wheaton, there would have been a Federal warrant in the system,

and you may have prevented the entire event from occurring.

This is not massive data mining capability. This is basic system

infrastructure that needs to be put into place. It is important, and

this goes to Mr. Turner’s point, how do you decide what information is important? Part of the problem is we adopt in this country

a philosophy where somehow terrorism is somehow separate from

crime and that is ridiculous because terrorists don’t sit in their

hotel rooms or their apartments thinking up their little plans and

then come out only to carry out the plan. They commit drug trafficking offenses, illegal weapons trafficking offenses, document

fraud, money laundering; they work with criminal organizations.

They are intertwined with the criminal community throughout the

world.

The best way and in fact most of the domestic cases that have

been worked in this country since September 11 have all started

off as criminal investigations by either a local police officer or a

Federal agent. If we can link these criminal justice systems more

effectively, it is not a technology issue but a willingness issue and

we can look at terrorism and terrorist groups for what they are

which is people driven by ideology to commit violent crimes, we can

take a giant leap forward in making the country safer. For that to

occur, funding has to be able to be used by State and local governments for these information systems, Congress has to insist that be

a part of the philosophy that is adopted as our national homeland

security planning.

Mrs. MILLER. That is absolutely true. You say a willingness. In

my former life, as the chairman knows, I was the Michigan Secretary of State. We did all the DMV kinds of things in our State.

As a consequence of that, we were responsible for feeding the

LEAN machine, an acronym the police officers used for all the driving records and those kinds of things.

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We had so many times when officers were abusing the system because they would get into it, find out their girlfriend’s address,

there were all kinds of things, even the reporters and the media

were using it for things they shouldn’t have used it for. So there

are always those feeding those kinds of information systems and

you certainly have to be vigilant about who is accessing it and penalties have to be given to those that abuse it as well.

You also mentioned the homeland security. This is something I

think all of us see in our respective districts and States as the Federal Government is sort of feeding out this pot of money for homeland security. Unfortunately so often I see at the local level they

are using it because the States are having a budget crunch, so they

have had to lay off some police and fire and are using the homeland security to bring those layoffs back up to snuff, which I suppose is an important thing.

I think many of us, in our minds, were thinking about homeland

security moneys for communications systems and border crossings

and a lot of other kinds of things. That is something I think Congress does need to pay attention to, how it is actually being used

on the home front.

I did have a question for Mr. Rosenzweig. You mentioned in your

testimony, I have forgotten now, did you say Great Britain or Canada that has a system somewhat different from the American system where they have a point person, so they have someone who is

accountable for their information sharing.

Do you have any specific recommendations? You mentioned here

in our Nation, Congress has the responsibility for ensuring privacy

and having these kinds of hearings. Do you think an appeals process outside the Congress as you mentioned, would be a good thing?

Mr. ROSENZWEIG. I think some form of review is absolutely essential. There is no doubt that however we construct these information technology systems to conduct advance factual data analysis,

there will be errors. There will be what are known as false

positives.

Especially in the CAPPSII Program, which impinges directly

upon one of our cherished fundamental freedoms, the right to travel, no American citizen should be denied the right to travel within

or outside the United States without a chance to have some redress

and an ability to make a prompt argument that the determination

is an error.

If it were technologically feasible and I don’t know whether this

will be because we don’t know how the system will play out, I

would like the appeals system to be at the airport, so that you can

catch the next flight. That may prove to be impossible and it may

well prove to be unnecessary if the parameters of CAPPSII are

drawn tightly enough.

If you design the system such that the external identification

queries merely create a name and verify that identity and that

identity is checked against a terrorist list created through the use

of intelligence sources and means and methods overseas that I

don’t know about and probably never will because I don’t have a

secret clearance, anybody who is red carded under that system and

not permitted to fly is almost surely also going to be someone who

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the authorities will immediately take into custody because of suspicion that they are in fact an active terrorist within the system.

That is how I conceive the development of the system and it is

how I think TSA conceives it. Whether or not they can achieve that

remains an open question. If they do achieve that, then the appeal

from no fly will be in a different forum altogether, the court system

where the suspected terrorist will soon be transported.

There should still be a system for an appeal of a yellow card determination where you are allowed to fly but are subjected to

heightened scrutiny. However, the need for that to be an immediate process right at the airport is substantially diminished because yellow card means you fly unless the yellow card turns up

something in which case you do not fly because you have the bomb

in your luggage.

So there could be a more measured process by which one were

given that appeal. Whatever the structure and architecture of the

system, it is imperative that no American be denied the right to

fly without the right to appeal.

I will add one other thing mentioned in my testimony. No American should be denied the right to fly, red carded, based solely on

commercial data, data that is gleaned from publicly available commercial data bases because those data bases are maintained for different purposes, they have errors in them and they aren’t intended

to be terrorist identifiers.

If anybody is denied the right of travel, this Congress ought to

tell TSA it ought to be based upon some positive indication from

an affirmative, intelligence source that gives us a positive reason

for thinking that this particular person, with this particular name

ought to be on the list.

Mrs. MILLER. That really is the whole impetus of these programs,

that TSA is able to do some sort of profiling to weed out the kinds

of problems we might have at our airports.

I would like to ask one generally for the panel.

Mr. PUTNAM. We may need to get back to that. You have had a

10 minute round. We are going to move to Mr. Clay. I hate to cut

you off because it is a good debate, but I will recognize the gentleman from Missouri for 10 minutes.

Mr. CLAY. I thank the witnesses for being here today. Thank you

for your testimony.

I would like to begin by asking each of you to answer this question. Each of you has emphasized that Congress has an important

policy role in balancing national security and privacy, however, the

development of CAPPSII and the development of DARPA’s Total

Information Awareness have been difficult for Congress to review.

One of the reasons the Wyden amendment was passed was because Congress did not have sufficient information to allow the

project to proceed. Now, we find the information Congress had then

is no longer operative.

Similarly, Admiral Loy told us about all of his Federal Register

notices and conferences but Congress still doesn’t know what data

is going to be used in CAPPSII or what rights citizens will have.

How can we assure that Congress has the information necessary

and that all of the relevant committees consider that information

before these programs go much further? Mr. Cohen.

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Mr. COHEN. Congressman, as you were asking your question, I

couldn’t help but looking over your shoulder and seeing the portrait

of Jack Brooks. I used to work for Chairman Brooks when he

chaired the House Judiciary Committee. I was the deputy chief investigator for the committee. Chairman Brooks worked very closely

with the ranking member of the committee on a number of issues.

Mr. CLAY. When I first met Jack Brooks 25 years ago, I worked

here as a doorkeeper over there in the House. He ran the committee with an iron fist too.

Mr. Cohen. Yes, he did. I think back to the struggles we went

through trying to conduct oversight. In my opinion as a law enforcement person, we are in a very uncomfortable time in this

country because on the one hand, you have fear pervasive through

society where people are saying things such as, maybe I am willing

to give some of my civil liberties if just the Government will keep

me safer. You have good people in law enforcement and government trying to come up with a solution that is a very complex and

very scary situation where people are attacking this country.

At the same time, we are going through a period where folks are

saying, if I am going to do my job effectively, I can’t have that

pesky Congress looking over my shoulder or media shouldn’t be

given accurate information, or the courts have no business telling

us what to do. We are a nation at war.

It is a difficult balance because on the one hand, we have to protect sources and methods but on the other hand, there is a long

history of abuses of authority, and there is a long history of law

enforcement people even though I think most police officers and

law enforcement folks in this country are people doing a job most

would be unwilling or unable to do and they are honorable but

there are bad people.

Today’s LA Times runs a story about an LAPD officer who was

using his access to law enforcement information systems to sell

that information for his own personal gain. He ruined the life of

hundreds of people. Abuses will happen. No matter how good intentioned an agency is in creating a system, there is always potential

for abuse.

I think during these times, Congress has to be extraordinarily

aggressive and the message has to get out that oversight isn’t a

bad thing, it is going to make our system stronger, it is going to

help protect us better. What you find after you start taking a look

at how terrorist organizations operate, you find a lot of the important information isn’t secret information anyway. It is information

that comes from community members, from basic law enforcement

systems and non-law enforcement related government systems—

drivers licenses, FAA, all those types of systems.

I think Congress by aggressively injecting a bit of reality into

this process can play a real significant role.

Mr. CLAY. That pretty much serves as a way to fine tune our system of protections.

Mr. COHEN. Absolutely, Congressman. We worked very closely

with the Justice Department, though it was a different party administration, on all types of issues. We worked closely with NSA

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gress is a very important player in this and cannot be excluded if

we are going to be effective.

Mr. CLAY. Mr. Steinhardt, how can Congress assure that we

have the necessary information?

Mr. STEINHARDT. I have a great deal of sympathy for your question. We have had a constantly shifting explanation of what the

Total Information Awareness Program and CAPPSII Program are.

Those charts come from DARPA and we blew them up to make

that very point, that the explanation of these systems constantly

shifts but that the initial explanation, whether the chart from

DARPA or the Privacy Act notice filed by the TSA, are massive systems of surveillance.

It seems to me Congress has the right and the Constitutional

duty to ask some hard questions of the administration about what

exactly these programs will do, what data will be collected, who

will they be trained on. It is clear they will be trained on American

citizens. Whether or not there should be, as Mr. Turner suggested,

and I tend to agree with him on this point, a separate set of rules

that apply to non-Americans. It is clear both TIA and CAPPSII will

apply to hundreds of millions of American citizens, American residents.

I would suggest in summary what you need to do is really employ a two step analysis. The first is you need to ask some hard

questions about whether these systems will work. There are a lot

of good people out there who are security experts, computer scientists, technologists who will tell you these systems are not likely

to work. If they are not likely to work, then they become a diversion of our resources and creation of potential threat only to the

point that you are satisfied they are likely to make us safer, not

talking about 100 percent certainty. I understand nothing is 100

percent certain, but general certainty that the systems are going to

make us safer, only if you are satisfied on that score do you then

begin to ask the second set of questions which revolve around what

is the cost to our freedoms and how can we cabin the systems so

they don’t cost us our freedoms.

You need to begin by asking that first question. Is it going to

work, is it going to make us safer or is it going to create the illusion of security.

Mr. CLAY. You say there may need to be a bifurcated system or

a two-tiered system where we treat American citizens one way and

treat immigrants another way. You bring up a valid point. We may

need to get a handle on who is here in this country and maybe

scrutinize them in a different way than we do American citizens.

Mr. STEINHARDT. What I was trying to do, Congressman, was answer Mr. Turner’s question about who would CAPPSII apply to. In

my opening statement, I give the statistic that it applies to about

100 million Americans. I estimated the error rate 100,000 people

if the error rate was 99.5. Mr. Turner asked a legitimate question,

what about those people who are not American citizens. I was just

emphasizing that both CAPPSII and as originally proposed the TIA

systems were designed to go after American citizens. There is no

question a different set of Constitutional standards applies to nonAmericans. We can and should at some point talk about those but

we need to recognize that these are not systems solely designed to

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be applied to foreign visitors to this country. They are going to

apply to hundreds of millions of American citizens.

Mr. CLAY. Thank you.

Mr. Rosenzweig.

Mr. ROSENZWEIG. The answer to the question how is a very simple one. You have more power than you think you have or you

know you actually have more power, the power of the purse, the

power of public observation and ultimately powers of subpoena.

I was on a program talking about the Patriot Act, an NPR program with Congressman Conyers about 6 months ago. As you may

imagine, we don’t necessarily agree on a number of things but this

was at the time when the Department of Justice was refusing to

provide data on its use of subpoena powers to the Judiciary Committee. One of the things that we agreed on wholeheartedly was

the necessity for the Department of Justice or any other executive

branch to provide you with information.

I don’t see in these charts a nefarious mutation of policy. I see

the natural product of the development of an idea that starts as an

outside the box conception in an agency that we designed for the

purpose of doing outside the box thinking, that ultimately gets refined as it is subjected to public scrutiny such that it is indeed likely a variation on the original idea that is more sensitive to public

liberty concerns.

That is not DARPA’s mission. DARPA’s mission is to have the

wild hairbrained ideas. It is the other people in the executive

branch’s idea to say, whoa, make sure you do it the right way and

it is your mission to say to the executive branch, really make sure

you do it the right way.

I actually see the trend between those two charts that Mr.

Steinhardt seems to think of as a demonstration of the bad motivation that initially went into this as actually an example of the system working. Congress did the right thing with part of the Wyden

amendment by saying, tell us what you are doing and sometime

today you are going to get 500 pages, 300 pages, I don’t know what

they will give you, on what TIA is doing.

I am sure Mr. Steinhardt is going to study that carefully, I am

going to study that carefully, you and your staff are going to study

that carefully, and we can build from there. So do more of what

you are doing is the answer.

Mr. CLAY. Thank you for that answer.

Mr. PUTNAM. I thank the gentleman.

Mr. Steinhardt, you made several references in your written and

verbal testimony to the surveillance society. Has the ACLU’s definition of an acceptable level of surveillance in society changed since

September 11?

Mr. STEINHARDT. We have never been opposed to strong security

measures. My colleague, Rich Nochime for example, testified before

what was then known as the Gore Commission in the prior administration, on aviation security about the need to do several things.

One was to fully secure the cockpit doors in airplanes; second was

to x-ray all the package or otherwise test all the baggage going into

the cargo hold; third was to put armed guards on the planes. We

have never been opposed to security.

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The questions we have been raising are does the security that is

proposed work? Many of these proposals simply will not work. They

will not make us safer. Second, how can we retain our liberties in

the face of the ever advancing march of technology which makes

it easier to collect data about us, to correlate that data, to mine

that data? I can show you my device that does e-mail and phone

and keeps my calendar but we need to begin to put some rules

around this technology.

I had the opportunity the other day to visit with Dr. Popp, the

deputy director of the Total Information Awareness Program. He

was showing us some slides about TIA. He was showing a slide

that showed the role of different agencies in the TIA Program. In

the bottom righthand corner of that slide, and I cannot forget this,

was a balloon that said ‘‘policy’’ and the remarkable thing about

that balloon was it was empty. There is no policy other than the

Wyden amendment. There is no policy that really constrains what

can be done with TIA. That is Congress’ role, you need to begin to

develop those policies. You can’t leave them to the governmental officials who build these systems.

Mr. PUTNAM. Everyone else in society has sort of lost their footing since September 11 and are trying to regain it as to what is

acceptable. Prior to September 11, red light cameras and face recognition technology at a Super Bowl may not have been acceptable.

After September 11, it may be. There is this effort on the part of

society and it is reflected in the Congress of trying to regain our

footing as to what is an acceptable level of surveillance in our lives.

My question was whether or not the same process had been undergone in ACLU but let me move on.

There has been a growth, perhaps an explosion, in the number

of local and State law enforcement agencies who have begun their

own intelligence divisions, agencies, operations that are probably

subject to less scrutiny than the Federal agencies have been up to.

Would you comment on your awareness of municipal or State efforts in this regard and your concerns or observations on their

progress, beginning with Mr. Cohen?

Mr. COHEN. You are right, for a number of reasons State and

local law enforcement have expanded their exports in two things,

one in the collection, analysis and dissemination of information and

intelligence, especially on the State level as an intelligence dissemination hub. The State of California has created a Counterterrorism

Information Center. The State of Maryland is establishing a similar capability where crime and terrorism related information will

all come into a central analytical facility and be disseminated out

to Federal, State and local entities. The State of Arizona is building

a similar capability.

At the same time, many local agencies are focusing on this whole

issue of intelligence and creating their own intelligence divisions.

The reason the States are having to step up and do this is because there is a perceived lack of capability coming from the Feds

in this area. Whether it is because the Federal Government doesn’t

have the infrastructure or the capability itself or whether it is a

different perspective on what information sharing is, a number of

State and local governments have felt they are in a better position

to conduct this analysis and dissemination.

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From the standpoint of creating local intelligence groups, local

law enforcement for the most part sees the correlation between

crime and terrorism, and while they tend to be under less Federal

scrutiny unless they are using Federal funds for technology systems that facilitate movement of this information, they tend to be

under pretty extensive local scrutiny because of past problems.

The city of Denver, for example. The city council and the local

courts are very heavily focusing on the efforts of the Denver City

Police Department to collect intelligence information. When we

work with police departments, we say as long as you continue to

remember things like due process, probable cause and you are linking your information collection activities to criminal activity, you

are in good shape. If you start straying from that area and start

looking at collecting information that may not be related to criminal behavior, you need to be very careful.

Mr. STEINHARDT. Let me followup what Mr. Cohen just said because the Denver case is actually an ACLU case. We are not opposed to the Federal Government and local and State law enforcement agencies talking to one another as some might suggest. We

are concerned about what happened in Denver where you had the

Denver police collecting information about lawful protesters who

were exercising their first amendment rights and creating what

amounted to spy files about those individuals.

It is both a diversion of the resources of the Denver Police Department from far more critical things they could be doing and a

deprivation of rights. Denver is not alone. That occurred before

September 11 but Denver is not alone as a representative of that

problem. In New York, the incumbent administration had a policy

for a period of time that they simply would not approve any parade

permits, so people who wanted to exercise their first amendment

right to protest were prohibited from doing it.

The consequence was they denied a permit to what turned out

to be 500,000 or 600,000 people who wanted to hold a demonstration in front of the U.N. before the Iraqi war broke out. The classic

exercise of their first amendment rights to petition their government for a redress of their grievances as the first amendment says,

the consequence was from a security perspective that you had hundreds of thousands of people wandering through streets of Manhattan in a disorganized way that made us less secure rather than

more secure.

We need to recognize that even in these times, we are not suspending the Constitution, we are not suspending the Bill of Rights,

we need to apply those resources in a way that makes the most

sense, that is efficient and effective.

Mr. ROSENZWEIG. I think the answer to your question depends

upon the subject matter of the intelligence gathering. To a very

real degree the tools and methods by which we are going to identify

terrorists reside principally at the Federal level, the CIA, NSA,

DOD, FBI, Homeland Security.

The creation of intelligence divisions in the States is to be welcomed. Any enhancement of our abilities to identify terrorists is

great but I guess from my perspective, unless those intelligence capabilities are linked with the Federal system and thus far they are

not so linked, they result in a duplication of effort to some degree.

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That is the nature of our Federal system. Indeed it was created in

some ways to cause inefficiency, the division between Federal and

State and locals is designed to cause governmental inefficiency.

In the case of terrorists questions, that may be an inefficiency we

can no longer afford.

Mr. PUTNAM. Do you believe Mr. Rosenzweig, that government

should be restricted to publicly available data sources?

Mr. ROSENZWEIG. With appropriate safeguards, no.

Mr. PUTNAM. My time has expired. I will recognize the gentleman from Ohio, Mr. Turner.

Excuse me, Mr. Lynch?

Mr. LYNCH. No.

Mr. PUTNAM. Mr. Turner.

Mr. TURNER. Mr. Steinhardt, in listening to your testimony and

reading over the written statement you have given us, I agree with

your concerns and the problems you have identified in these types

of systems. The issues of we can’t catch everyone, there will be failures of the system. Timothy McVeigh would not be someone who

would have been identified. Abuse of government, the fact that

other uses of this information might be found. Civil liberties, the

fact that innocence would be identified, that there could be creep,

that we needed due process for those aggrieved, that criminals may

subvert the system, that once the system is constructed, those who

really want to get beyond it can and the issues of cost benefit analysis.

Your conclusion of then don’t do this leaves me with the question

of what is the alternative. We know what we are doing now doesn’t

work and we have all seen 85 year old grandmothers with their

grandchildren traveling who have gone through increased security

measures and we all agree pose no risk to us.

I would love to hear from you what is the alternative besides just

increased security. We all know, even in the highest crime areas

of urban America, you could put a policeman on every corner and

still not have an impact on crime necessarily. What alternatives in

intelligence gathering or in looking at intelligence would you find

acceptable or would you suggest be pursued?

Mr. STEINHARDT. I think that is an important question. To my

mind the first alternative is physical security. That remains our

best alternative. We have taken some steps in air travel that are

working pretty well. We put air marshals on the planes, we

strengthened cockpit doors, we x-ray baggage. There are some additional things we ought to be doing. We are still not doing luggage

matching to determine whether someone checking luggage on the

plane actually got on the plane. There are a number of things we

could be doing in addition to what we are doing that is physical security.

We are not opposed to the notion that the government have a

properly constituted watch list of persons who we believe are engaged in terrorist activities which are criminal activities, that be

circulated and people be carefully checked against it but that is not

what CAPPSII is.

CAPPSII is designing a much larger system of investigation of

100 million Americans plus 10 or 15 million non-U.S. persons who

arrive here every year. When we say we think CAPPSII is the

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wrong alternative to the problem, it is not to suggest we think either there are not additional physical security measures we can

take, nor is to suggest we think the Government should be prohibited from compiling a generally accurate list of persons who are not

permitted to fly. If you have identified one of those persons, you

trigger the normal criminal process. If you identify someone who is

a terrorist, then the likelihood is you have sufficient cause to arrest

them and bring them to trial.

Mr. TURNER. How would that list be made, the watch list you are

talking about, how would that be composed, how would you achieve

that list?

Mr. STEINHARDT. We certainly would have to go beyond what we

now have. About a year ago some of us met with some persons who

were then in the Department of Transportation, I suppose they are

in Homeland Security now, who described the current watchlist as

1,000 guys named Mohammed and I am not exaggerating that.

If we have sufficient information about individuals to believe

that they intend to cause us harm, that they have engaged in

criminal activities, terrorist activities which are also criminal activities, then it seems to me it is appropriate to circulate a list to

security officials and check to see if they are trying to fly.

Mr. TURNER. The second question is for Mr. Steinhardt again.

You indicated the Constitutional standards for non-Americans

would be different and there is some level of acceptable tracking

that could be done. Would you be willing to submit to this committee additional information as to what you would consider to be an

acceptable tracking system for non-American citizens?

Mr. STEINHARDT. Absolutely. We will provide the committee with

additional information. I will ask my colleagues who work on those

issues to help me. We will submit some information.

Mr. TURNER. The next question I have goes to all the panel members, starting with Mr. Rosenzweig.

I participated in a panel at the American War College at Maxwell Air Force Base. One of the questions asked by someone attending was can America right a religious war? One of the biggest

issues we all came down to which I thought was pretty startling

was how do you define a religious war. If your enemy declares a

religious war, you are in one whether or not you believe you are

in a religious war yourself.

We define ourselves being an immigrant population as everyone,

every religion, every ethnicity. Governmentally we consider ourselves to be nonreligious. Yet the rest of the world does not necessarily organize that way. There are areas of the world that tend

to be more homogeneous, that are not immigrant populations. So

when we have an area of the world that identifies America as an

enemy or a target, we are going to find ourselves in a situation

where by trying to discern who our enemy is, we are in fact crossing that line into an area where America feels very uncomfortable

because of our inherent definition of ourselves of being made up of

everyone.

In looking at that issue, what are your thoughts on the Constitutional issues that we face, the political issues we face, our concerns

being an immigrant population of making certain as we preserve

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ity to discern where there is a conflict that is coming from an isolated area of the country that may be more homogeneous and may

have a different view of why it is at war with us?

Mr. ROSENZWEIG. That is a very difficult question to answer. Let

me offer two thoughts.

The first thought is that in some very real ways, the promise of

advanced technologies that we have been discussing is to minimize

the need for the use of characterizations and categorizations that

Americans inherently find difficult, racial profiling, religious

profiling, that sort of thing.

When we talk about CAPPSII or TIA as an intrusion into privacy, we have to understand that it really is not a one-way rachet.

It is really a rebalancing the privacy because there are more intrusions in electronic data that is out there about you that will probably result in substantial reductions in the amount of physical intrusions that occur to American people as they go through the airports, the body searches and things.

Another consequence of a successful CAPPSII Program, if we can

develop one and if it can work, I don’t know whether it will work

and history is littered with people who will say airplanes won’t fly

and automobiles will never work. Assuming it works, if we can get

a system that is better at pinpointing who it is that is an appropriate target for enhanced scrutiny because of indicators out there,

that decreases our need and may even eliminate the need for us

to rely upon the fact that a person is a practitioner of Islam who

was born in Yemen and has moved to the United States, characterizations we don’t want to use.

The second answer, second aspect of it is we are going to have

to accept that as a cost in the end. It is not a cost anyone willingly

accepts and we shouldn’t use those sorts of characterizations for

any except the most extreme and significant threats. I would say

don’t use it for drugs, don’t use it to catch wife beaters, there is

a whole host of valuable things we do but all of them pale in significance compared to the security of Americans and their safety.

If we can find no other way to do it, then we are going to have

to with a lot of oversight so we try and do it the best way we can

with the least amount of intrusion. Those are the only answers.

That is not a good answer, not a satisfying answer but we are in

a very unsatisfying situation that is not the product of our own beginning.

Mr. STEINHARDT. As you said, I agree we need to have better coordination among law enforcement agencies whether it is State or

Federal, local or Federal but the question remains what is it these

systems will evolve into? I was thinking as I prepared for this testimony about the experience with the Social Security number. My

parents when they first received their Social Security numbers

back in the 1930’s were promised the Social Security number would

not be used to do anything other than to administer this brand new

pension program.

My children on the other hand, if you fast forward a few decades,

were given their Social Security numbers at birth and it is quite

clear it has become not only a unique identifying number in our society but it has very real consequence for millions of Americans

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who have become the victim of identity thieves who use that Social

Security number as the linchpin for their theft.

I fear that in the Internet age in which we live where everything

is sped up, period between when my parents got their Social Security number and my children got theirs is going to be tremendously

compressed. That if we build systems like TIA and CAPPS II, in

the end they are going to be used for not purposes that are unauthorized, although they will that is not what I am worried about,

I am worried about what will become the eventual authorized purposes for systems that allow that sort of intrusion into our lives,

that allow that sort of ability to correlate what would seem to be

these disparate and unrelated facts about us.

Mr. COHEN. I think your two questions are linked because if we

do this right, we shouldn’t have to fight religious wars. Terrorists

aren’t dangerous because they have dangerous thoughts or they say

dangerous things. They are dangerous because their political or religious ideology motivates them to do violent acts against people,

places and things. The danger comes from the violent act. They

don’t commit those violent acts in a vacuum. They deal with criminal organizations, other political organizations. They move about

the world.

There are ways to target them and prevent them from doing

what they intend to do without it becoming a religious war. We do

it the same way we target violent international weapons trafficking

organizations and violent international drug trafficking organizations who use many of the same terrorist-like tactics to promote

their goals. So they commit violent acts, sometimes mass murders

motivated by greed.

In my opinion, a mass murder committed or motivated by political ideology is no more sinister than a mass murder committed because of mental illness or because of the intent to promote a criminal goal.

I think this goes to your question, what do we do if we are not

going to invest in the CAPPS II system or TIA? I think it becomes

a question of priorities. We have limited funding; that is the reality

of life. Is it more important to build the TIA system or the CAPPS

II system or is it more important to conduct a comprehensive national threat assessment where the Federal Government works

with State and local governments to identify potential targets? Is

it more important to create a system so that once that threat assessment is done, we can constantly reevaluate and reprioritize it

based on information that comes from the Federal level?

Is it more important or a higher priority to map out the business

processes of how international terrorist organizations work with domestic groups like black militant organizations, white supremacist

organizations, latin american drug traffickers?

I have to tell you I fundamentally disagree with my panelist’s position that one of the most important components in identifying terrorists operating in this country, the information is going to come

from the intelligence community. Investigation in North Carolina

into cigarette smuggling by local sheriffs resulted in the discovery

of a terrorist cell where they were using the proceeds from cigarette sales to fund Hezbollah operations. It didn’t start off as an

investigation that came from intelligence sources but because some

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local deputy sheriffs were told by community people there were

some suspicious behavior going on.

DEA agents, FBI agents began an investigation in San Diego

into an heroin trafficking organization. Come to find out, that organization is involved in shipping surface to air missiles to Latin

American terrorist groups.

An organization coming in from Canada bringing precursor

chemicals for the production of methamphetamine resulted in dismantling an incredibly large methamphetamine production. Guess

what we found out afterwards? They were funneling the proceeds

of the sales of those precursor chemicals to Middle Eastern terrorist organizations.

The vast majority of the cases on terrorist organizations that

have taken place since September 11 weren’t initiated by information that came from the intelligence community. They were initiated because a local police officer, a Federal agent, a community

member reported something suspicious, and a criminal investigation began. They found out later when they linked information that

came from the intelligence community that these folks had a tie

with terrorist organizations.

I am not saying the intelligence community doesn’t have a role.

That would be ridiculous to say that. It is only when we recognize,

if we are going to be truly serious about preventing terrorism in

this country, this philosophy that terrorism is worked on this path

and crime investigations are worked on a separate path and we

have to make it difficult that we don’t share that information; until

we recognize that is a nonproductive way to do it, we are not going

to be able to put in place a system in this country that allows Federal, State, local law enforcement to best protect the people who

live here.

Mr. TURNER. Thank you.

Mr. PUTNAM. You have made the point Mr. Cohen rather eloquently about the nexus between drugs and weapons trafficking

and the source of financing for terrorist organizations. Mr.

Steinhardt and Mr. Rosenzweig have both testified either in written submissions or verbally that at bare minimum, if we are to deploy TIA and CAPPS they should not be expanded beyond national

security issues into criminal activity.

If we criticize an inability to connect the dots because the criminal agencies, the law enforcement agencies aren’t talking to the intelligence community or the Department of Defense, why would we

restrict the ability of TSA and others using best technology practices to pick up a sniper, a weapons trafficker, a drug trafficker, a

murder, a kidnapper? How would we justify to the parents of a kidnapped child that we had technology that could have picked up

that person at the airport but we only use that for terrorists? At

what point would you draw that line where national security

threats cross the threshold into criminal activity? I would direct

that to Mr. Steinhardt and Mr. Rosenzweig?

Mr. ROSENZWEIG. I think the principal difference between Mr.

Steinhardt and I is that he doesn’t believe you are going to be able

to maintain that line, that in the end the reality of politics will

cause Congress and the administration, whether Democrat or Republican, to follow that downward path.

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The reason and one of the only reasons I am willing to take the

step of looking at TIA is because I believe you can make that line

and I believe you should.

Mr. PUTNAM. Where do you put the line?

Mr. ROSENZWEIG. I think the line is where we are talking now,

national security, the maintenance of the security of all the citizens

of the United States against broad threats of terror that are likely

to result or may result in the deaths of tens of thousands, thousands of us, is a class category distinction in my mind.

To be honest with you, if I didn’t think you could draw and maintain that line, I would be joining with Mr. Steinhardt because the

power of this technology to be a potential for abuse and for intrusion is not insignificant. To my mind, the risk is worth it if it is

going to be used in this narrow range of circumstances that are the

most significant. You can’t define the line but I think it is easy to

say that September 11 is a lot different than chasing down deadbeat dads. Deadbeat dads who don’t pay their alimony and child

support are bad people.

Mr. PUTNAM. You have laid down those two markers, let us move

inward from deadbeat dads to Pablo Escobar or move further to a

major weapons trafficker, or further to someone who is a financier

of Al-Qaeda but is not a known operative.

Mr. ROSENZWEIG. The lines are difficult no doubt and there will

be room for argument in the gray area where it is. I would say the

financier falls on the side of the line where I would use it. I would

say Pablo Escobar, however grave a threat he is to Americans, is

not a fundamental threat to American security and does not have

as his fundamental purpose the intent to kill tens and tens of thousands of Americans.

The difficulty in drawing the line is often used as the slippery

slope argument against even beginning the discussion. I stand with

Justice White who wrote in response to the slippery slope argument, we are rationale human beings, we can draw lines, we can

debate where we want to draw them, but to say we cannot draw

them is to despair of our rationality. I am paraphrasing obviously.

That way lies despair. That way, don’t do this at all. in which case,

we are tossing away potentially our greatest technological advantages if these things work and condemning quite possibly Americans to death or admitting we can’t draw a line and we are going

to travel down the road to a police state or surveillance state where

TIA and CAPPS II and other systems like that are used to dun me

for my unpaid traffic tickets.

I hope we can stop somewhere along that slope.

Mr. PUTNAM. Mr. Steinhardt.

Mr. STEINHARDT. The ACLU has never opposed the intelligence

agencies and the criminal law enforcement agencies talking to one

another when there is evidence of a crime. We had plenty of evidence before September 11 those terrorists who hijacked those

planes were going to commit a crime. There was nothing in law

then, certainly nothing now in law that prevents those agencies

from talking to one another. That ought to be the touchstone here

which is whether or not you have evidence of criminality. If that

is the case, the information can be shared and should be shared.

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I would think if the TIA had evidence at the airport that Pablo

Escobar or some other wanted criminal was presenting himself, the

right response is call the cops, bring them in and have them make

the arrest.

That is very different from the question of how do you design

these systems. Do you design them to be an adjunct to law enforcement or do you design them for the purpose for which they originally were to be created which is as security systems.

To the extent we are going to have these systems, I would suggest we design them as security systems. I am sure if Admiral Loy

were here he would say that is his first priority. He is in the security business, not the law enforcement business. I know of nothing

in law that would prevent the TSA if they came across a wanted

felon from calling the criminal law enforcement agencies to make

the arrest.

Mr. PUTNAM. You have made points back and forth, one following

Mr. Forman’s comments we are not going to fund anything until

it is proven effective and the other your philosophical opinions on

the privacy issues. Is your primary objective the deployment of

TIA, which has not occurred, or the development and deployment

of CAPPS II which has yet to occur? Is your objection based on the

ineffectiveness argument that it is not going to work or the intrusiveness argument which is that it is going to work too well and

bring in innocent people?

Mr. STEINHARDT. I fear it will be both. Systems like that are not

going to work in the sense that they are not going to make us more

secure. I don’t mean 100 percent security, no one believes we can

achieve 100 percent security but a reasonable degree of extra security.

Second, if we build systems like that, they are inevitably going

to be used for other purposes, even as they don’t protect us, they

will be used for other purposes. In fact, as they don’t protect, the

impulse is going to be to make them more intrusive, to gather more

information, to use them in different ways. That will be the response, their lack of efficiency, their lack of effectiveness. That is

what I fear about systems like TIA and CAPPS II. Build it and

they will come with all sorts of other uses for systems like that and

they inevitably will be used for other purposes just as my parents’

Social Security numbers are used for a host of other purposes now.

Mr. PUTNAM. You specifically cite in your testimony your objection to Admiral Loy’s comment. In fairness to Admiral Loy, his

comment was in response to my question and he couched his response by saying he would not expand the use of CAPPS II beyond

air travel without specific congressional authorization if I remember correctly.

You object to using the same technology for air travel on passenger cruise lines and rail travel. If we deploy a technology to presumably increase the security of air travel, why would we deliberately choose not to deploy that same technology to rail and cruise

ships? Do we presume they won’t select those transportation modes

as a target?

Mr. STEINHARDT. We object to the technology whether employed

in air travel or rail or shipping. Your response I sense is what I

assume will happen which is if we build one of these systems, say

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CAPPS II, you make an excellent point, if we build the system,

why not apply it in other areas and we would employ it for a whole

host of other reasons, some of which are completely unrelated to

the security of our transportation. That is exactly what I think will

happen if we build CAPPS II or TIA. We will use them in other

ways.

There is no good answer in a sense to your question which is why

not use it in x or y case.

Mr. PUTNAM. If you are right and it doesn’t work, we shouldn’t

put it anywhere?

Mr. STEINHARDT. That is right.

Mr. PUTNAM. But if it does work, I think it would be silly to use

it in air travel but leave all rail passengers vulnerable. I would

lead the charge in Congress in response to your objection. Your objection is well founded and people like me would say if it works for

air, it ought to work for rail and passenger cruise lines because

clearly the people who wish us ill have a range of targets to choose

from.

My time has expired. I will recognize the gentleman from Massachusetts if he has questions.

Mr. LYNCH. Let us go back to the airline model. Right now we

have just a purely random system, so my mom, 82 years old, coming down for the First Lady’s luncheon last week gets screened and

it is completely random. We need to move from that model. Clearly

we are wasting a lot of resources on people who aren’t legitimate

threats. That is not effective.

Is there a system out there with some criteria that would be acceptable in terms of honing down the number of suspects that

would receive more robust screening at airports? I know it is terribly problematic but when you have a situation like we have

where there is a group that has declared war against this country

and we are at pains under our Constitution to make sure we don’t

simply respond to that by stigmatizing and labeling all members of

that group as suspects, we still have an overriding primary responsibility to protect the citizens of our country. There is the dilemma.

Is there anything you gentlemen can agree on that might provide

a more effective screening process?

Mr. ROSENZWEIG. That is what TSA is searching for. As of now,

the alternate to the random screening is a various set of heuristics

they use but they are so widely known to the public that it is easy

to avoid. For example, if you buy a ticket late, less than a half hour

or hour before you board, you are going to get additional screening.

The answer to that for the terrorist is easy, buy your tickets 14

days in advance.

To the extent systems are currently in place that attempt to supplement random screening, they are essentially compromised and

of little or no value. To the extent that we are creating the CAPPS

I No Fly list, it isn’t really working and just about anybody who

does a little research can figure out how it is created. It is fundamentally compromised.

You need a different heuristic. If the CAPPS II system or something like it isn’t developed and adopted, then you are going to be

left only with random searches or I guess the last option is the very

narrowest definition, the hard name list. We cull every intelligence

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source and we get 27,000 people we think are terrorists and we use

that name list. If we don’t add name verification and identity

checking to it, which is the part of CAPPS II that people like Mr.

Steinhardt find objectionable for understandable reasons, the name

list is useless because the obvious answer is change your name. It

is not a very hard thing to do and it is not a very hard thing to

assume somebody else’s identity.

The only way we can get beyond the current system I think is

something like the model they have developed in CAPPS II. If we

make the decision we don’t want to do that for other extrinsic policy reasons, that is OK but then we are going to be doing heightened physical security, heightened random screening, more privacy

intrusions of the direct and immediate personal sort that your

mother experienced, and it is a tradeoff. We will take that type of

privacy intrusion as opposed to the privacy intrusion of the name

and identity verification of CAPPS II.

For me, I would make the other choice but you can’t really say

there is no rationality to the objection.

Mr. LYNCH. Are we missing one other option? Isn’t there the possibility that we could have people self prove, low susceptibility or

low likelihood that they might be a terrorist, people who fly frequently, if they came forward voluntarily and said, I fly so often

I can’t be dealing with the selection process all the time. I will

come in and basically lay all my cards on the table and this is who

I am and I will agree to go through some type of enhanced identification process. Maybe it is biometrics or something like that.

Mr. ROSENZWEIG. The trusted traveler program has at least

three problems. It is another possible answer. One, the depth of inquiry necessary to make somebody a trusted traveler if it is low

enough to make it an efficient process is probably going to miss

people. If it is high enough that it will actually be effective in

screening out terrorists who try to get into the program, it will

take longer than the FBI screening that now delays senatorial confirmation by 6 months.

You are talking about lots more people, so it is going to be hard

and it is subject to the same discovery of the methodology problems

that any other screening system is, which is that the terrorists,

once they learn there is a new system, can game it. You can’t predict for certain, but for sure terrorists will try and suborn that system that setting themselves up as trusted travelers.

No system is going to be perfect. That is at least a reasonable

alternative that allows people to volunteer to make the choice of

which type of privacy intrusion they will accept, the physical one

at the airport or the electronic one in getting the trusted traveler,

so at least it has a virtue of choice. That is a reasonable alternative

to think about.

Mr. LYNCH. Thank you, Mr. Chairman.

Mr. PUTNAM. The ACLU has stated TSA will ‘‘drown security

screeners in an ocean of private information. Some of the data will

be fraudulent and much of it just plain wrong.’’ That statement

was printed after our last hearing and is in direct conflict to what

Admiral Loy described as CAPPS II doing. What is that assertion

based on?

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Mr. STEINHARDT. It is based on the privacy notice which the Department of Transportation published which they now admit was

their first description of the CAPPS II Program. I have had the opportunity to meet with Admiral Loy. We spent 3 days with his staff

at Wye River and had a long discussion about the CAPPS Program.

I have great faith in Admiral Loy and I believe he is a man of good

will. I believe his staff are people of good will.

The initial description of the CAPPS II Program was the one

they published in the Federal Register. There has been a shifting

description of what CAPPS II now is. They describe it differently

in Wye River than they did to representatives of the European

Commission we met with a couple of weeks ago. It is difficult to

know exactly what CAPPS II is. It is difficult to know what is in

the black boxes they are going to check after they do the identity

checks. It is important to remember CAPPS II as they currently describe it is a two-step process. The first is an identity check, name,

home address, home phone number and date of birth. The second

is a check against the black boxes and we don’t know what is in

the black boxes. They have described what is in the black boxes differently at different times. It seems to me it certainly is Congress’

responsibility to try to find out what is in the black boxes.

Mr. PUTNAM. Does the use of factual data analysis or data mining automatically suggest an erosion of civil liberties?

Mr. STEINHARDT. I guess the short answer to that question is no.

The question is are we going to build systems of the size and complexity of either TIA or CAPPS II which inevitably will be used to

erode civil liberties and will inevitably be used for purposes other

than the purposes for which they are now being proffered.

Clearly we engage in a certain amount of data mining, police officers, law enforcement officers engage in a certain amount of data

mining anytime they do an investigation. So we are not inalterably

opposed to the concept that law enforcement or intelligence agencies engage in factual investigations. There is a form of data mining going on every time they do that.

Mr. PUTNAM. But I presume your preference and your agreement

with its proper role is after an incident and after an investigation

has begun rather than prior to a bad occurrence, an event? In other

words, you are investigating, your data mining, you are narrowing

down based on suspects that were developed as a result of evidence

that was collected after a bad thing happened as opposed to prospectively looking for patterns among innocent people because a

bad thing has not yet occurred. Is that a fair characterization of

your position?

Mr. STEINHARDT. I suppose it is but importantly we hold that

view because we don’t think what you have just described actually

works. Does it in fact make us safer? That is not to say they had

some good reasons to suspect a person is going to commit a crime,

they can’t investigate but to search through what amounts to billions of pieces of data looking for patterns in the sort of speculative

way that TIA would do it, I don’t think they have demonstrated

you can pick out the bad guys and it won’t wind up being a diversion of scarce resources that could be more wisely spent on other

enterprises.

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Mr. PUTNAM. Again, your objection is based on its ineffectiveness,

not its intrusiveness?

Mr. STEINHARDT. No. What I suggested is there is a two step

process here. First, the obligation it seems to me is on the part of

the proponents of the systems to demonstrate it will be effective;

that you as a Member of Congress ought to vote to appropriate

them funds to do x instead of y because x is going to be effective.

That is the first question. We don’t even have to reach the civil liberties issues if they can’t demonstrate it is going to be effective.

If a proposal is effective or reasonably effective, I don’t mean 100

percent efficiency, then we need to begin to ask the question how

do we balance our freedoms against whatever intrusion that proposal will cause. The first question is, is it going to work.

Mr. PUTNAM. That is a fair point.

There are volumes of information already publicly available

about any given individual. Technology now allows us to access—

in seconds rather than days—when political campaigns or newspaper reporters dispatch investigators to the tax collector’s office,

the property appraiser’s office, the supervisor of elections office,

and the county court house to look for criminal records and things

like that. It can all be theoretically accessed in seconds if the stovepipe data bases are connected.

Assuming factual data analysis can be an effective law enforcement and national security tool, at what point on the list of transactional data on the chart you provided, which of those categories

of data then become inappropriate? Is financial data appropriate or

inappropriate? Is educational data appropriate or inappropriate?

What about travel history, medical history, entry into the country?

What then becomes appropriate and what is not? Is it only things

that are already publicly held information that is accessible to any

American and not just the TSA law enforcement investigator or is

it every conceivable thing law enforcement can get their hands on

to prevent another September 11?

Mr. STEINHARDT. You know the difficulty we have now as you

suggest is the fact so much information has become available. TIA

crystallized that not only are these disparate pieces of information

available out there publicly both to the government and to non-governmental actors, but now they can all be tied together. That is

what TIA proposes to do. Paint this portrait of us.

There is a lot of information on that chart I don’t think the government ought to have access to unless it has some reasonable

cause to have access. That is what the fourth amendment requires,

medical information, financial information, education records, all

those sorts of things.

It is important to look at the overall construct. TSA proposes to

build a system that ties together all these individual strands about

our lives to create this portrait of us. That is what I meant by the

surveillance society. TIA is an example of how this surveillance society would operate. Tie all the strands together, paint these portraits, the portraits may or may not be true to life but they will

be painted and we will have to live with the consequences of having those portraits painted. That is the direction in which we are

moving.

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It seems to me the Congress can step in and say wait, we need

to develop some rules about how we are going to use not only individual data but when and how you can tie together all this data.

Congress did the right thing with TIA when it called time out and

said you can’t use it on Americans and you can make a report to

us on how the system works, whether it works and what its consequences are for civil liberties.

Mr. PUTNAM. Mr. Rosenzweig.

Mr. ROSENZWEIG. I think Mr. Steinhardt and I have a different

conception of how TIA is going to operate which is one of the reasons why congressional oversight is vital. As I understand it, in

terms of pattern analysis, in terms of assessing patterns within the

data streams, this isn’t going to be a sifting in of millions of pieces

of information of education and medical records and all. It is going

to be pushing out into the data a query based upon models developed by people who have sat around and said if we are going to

blow up the Golden Gate Bridge, what are the things we are going

to have to do that would leave trails in data space, what purchases

are we going to have to make, what travel are we going to have

to do.

It is clear as far as that inquiry goes, the success or failure of

TIA will turn upon the utility of our model. If we develop the model

of people who rent trucks and buy fertilizer, that will capture not

only Timothy McVeigh but most farmers in Nebraska. That would

be a really bad model.

It will need to be a broader model, maybe rent trucks, buy fertilizers, pay cash, have previous membership in the Montana Militia, etc. until it gets to a narrow enough group. Otherwise, it is

useless.

For access to the highly personalized information of a particular

person, the likelihood of that being a necessity will only increase

when the number of names gets down to very small, particularized

groups. That is as it should be. To be candid, if we have a list of

five names that some intelligence source in Lebanon has given us

are in the United States and are planning terror, it is appropriate

I think to want to be able to link the data bases together so we

can try and find out whether or not we can get the information on

these people.

To a large degree, TIA is about increasing efficiency. All the information on that list, your financials, your medical, education, is

already available to the government once your name becomes a legitimate subject of inquiry. Almost none of those areas of data information have privacy restrictions that prevent access to them in

the case of criminal investigations. In almost all of those instances,

the data can be accessed without notice to the original source of the

data, the individual who is the subject of the investigation. Often

notice is required to the data holder, your bank, your medical provider, that sort of thing.

TIA is not going to change those rules or shouldn’t change those

rules. The same rules that apply today to the rights of law enforcement to have access to private information about you should apply

in the future when you access through TIA.

TIA will instead of taking as it took the FBI 9 months and 100

agents to develop a picture of what the 19 terrorists did in the 2-

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months before September 11, it will allow it to happen more quickly. If we have a narrowly enough focused search, that is a good

thing, not a bad thing.

Mr. PUTNAM. The gentleman from Ohio, do you have further

questions?

Mr. LYNCH. No.

Mr. PUTNAM. The gentleman from Massachusetts?

Mr. TURNER. No.

Mr. COHEN. May I?

Mr. PUTNAM. Please do.

Mr. COHEN. I think some of the last comments were actually apropos and right on. I think the key to building this type of system

is to have the ability to take in real time intelligence information

and make modifications. For example, when Mohammed Atta and

his roommate received within a 6-week period a number of suspicious wire transfers that all fit within the requirements of suspicious transaction reports, it should have been put on file with the

Treasury Department. That in itself does not mean they are part

of a hijacking scheme. It could be they are a drug trafficker, or

they could be importing legitimate goods.

If the system is structured right, it would also be able to pull in

additional information such as intelligence information which indicates people are going to flight schools. The same individual was

on an FAA report leaving a plane on a runway in Miami International Airport. The key is to make sure the system is flexible

enough and structured enough so that it can bring in these different types of data sources.

To your earlier question about where do you draw the line, you

can’t draw the line. There is no line because they are all interlinked. I would argue if you build a system that is only going to

help identify foreign terrorists but not identify someone like Tim

McVeigh whose goal was very similar, or you are going to somehow

try to separate artificially identifying folks involved in violent

crimes from people involved in violent terrorist acts, you are not

going to be able to construct a system and you are going to pour

a lot of money into something that is not going to work very effectively.

The flip side of that, if you go into the design of the system understanding that not only can it help you protect the Nation from

terrorism but it is also going to help you protect the streets of our

communities from violent criminal activity and build the system

based on that understanding, you can then put in the protections

which would reduce abuses of that capability.

Mr. PUTNAM. You don’t think there is an ability to draw some

line on acceptable criminal behavior that would be enforced, a line

at which you would not pick up people who are behind in paying

their child support but you would pick up someone who just escaped from a south Florida prison?

Mr. COHEN. I think the way you structured your question earlier

sort of identifies or illustrates the difficulty. The person who is involved in failure to pay child support; the person who is involved

in cigarette smuggling; the person involved in making fraudulent

drivers licenses; may actually be a terrorist. If you create a system

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that artificially separates those different actions, you may be building a system that isn’t as effective as it could be.

If you go back and look at the activities of the hijackers in the

time period preceding the hijackings, you find they had all kinds

of run-ins with local police and local authorities. It wasn’t until we

went back after the fact that we were able to see if we only had

a system that would have allowed us to connect all these dots together.

The other thing I would say is we don’t want to necessarily build

a system that only helps address the last attack. We have to build

a system that is going to allow us to prevent the next attack,

whether a suicide bombing, some other type of attack different

than hijacking an airplane and crashing it into a building.

Mr. PUTNAM. You make the point in your testimony when you

describe the breakdowns in law enforcement information sharing

that the sniper attacks could have been prevented. You point out

the State of Alabama’s data base doesn’t have access to Federal

data bases, correct?

Mr. COHEN. Yes, sir.

Mr. PUTNAM. Later in response to a question, you said the creation and buildup of these local and State counterintelligence,

counterterrorism, domestic information gathering operations is a

good thing because you are spreading the eyes and ears around the

country and you are developing people who have unique local expertise and things like that. I am paraphrasing you but you essentially said it was a good thing that the city of New York now has

a tremendous intelligence operation as well as others.

Are we spending the money in the right places if we are building

up brand new counterintelligence networks in city police departments and State law enforcement agencies when they don’t even

have access to the data bases on common criminals?

Mr. COHEN. No, we are not and that is part of the problem. We

have to recognize while prevention and response activities ultimately include at a great level local authorities, local authorities

themselves cannot do it alone. It is a very bad use of money to simply allow each individual local jurisdiction to come up with their

own homeland security strategy that is not connected with their

neighbor, not connected on a regional basis and not coordinated on

a statewide basis and feeds in. What you described is exactly what

is happening right now.

We haven’t come up with a detailed, national comprehensive

plan that defines the roles and responsibilities of how the city of

Miami links with Dade County from how they are going to work

together, what assets they are going to merge and how that fits

into the whole statewide approach.

The problem is because there hasn’t been, from a State and local

perspective, that strong direction and because at the State and

local level, people feel they need to be doing something, you are beginning to see the emergence of a lot of non-linked, duplicative efforts.

Mr. PUTNAM. So we are creating more stovepipes even as we seek

a streamlined data base?

Mr. COHEN. Absolutely. My concern is that 2 or 3 years down the

road when we are doing the after action study on how we spent

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this money, people will find we spent billions and billions and have

not gone as far as we could have and in some respects, the funding

has been wasted.

Mr. PUTNAM. You were pretty blunt in your testimony that very

little progress if any has been made in information sharing and

analysis across the law enforcement community since September

11, even though everyone acknowledges the problem. What is the

single greatest obstacle to that coordination or what is causing this

breakdown or this failure?

Mr. COHEN. It is not a lack of money; it is not technology. It is

leadership and whether on a State or national level, we haven’t

made it a priority yet to fix this problem. If you think about the

whole universe of what is homeland security, that is a pretty big

challenge to have to deal with. There are a lot of issues and a lot

of people identifying what the priorities should be. Should it be

ports, air travel systems, CAPPS, TIA? I think we need to take a

step back, need to stop operating in the emergency response mode

of thought and start looking long term.

We do not have the resources in this country at the State and

local level or even the Federal level to continue our approach to

homeland security which I call the ‘‘security guard’’ approach. We

don’t know what the real targets are, so we are going to guard everything or harden as many things as we can. We are going to pull

police officers out of their communities and do what we can to protect every nuclear power plant, every water treatment plant, every

bridge. It is just impossible.

The only way to counter that is to sort of reboot the computer

and rethink the way we are doing it. We need to integrate homeland security into the day to day business of government, need to

make sure everybody understands this is something we have to

deal with every day, and we have to structure our information and

communications systems in such a way that we are able to pull key

data out of those to identify emerging trends.

Is a broken lock at a water treatment plant a maintenance issue,

or is it a terrorist organization or a criminal organization probing

the security of that facility? We don’t have the ability to do that

today. A lot of Governors, a lot of mayors are beginning to think

this is the way of the future. We have to make sure the Federal

funding supports that thought process.

Mr. PUTNAM. Then their ticket to more Federal money is to create the greatest threat scenario possible for their community?

Mr. COHEN. You bring up an interesting point. There is no way

for anyone to counteract. Obviously in the real world, local governments need money, so they will say we will use homeland security

as a way for us to get additional funding to address infrastructure

issues. I don’t think that is necessarily a bad thing except for the

fact there is no mechanism today for someone to say, city of Houston, your threat is actually higher than Salt Lake City, therefore,

you should be prioritized.

We have formulas that were created in years prior to September

11. We have formulas based on demographics or population because we haven’t done a comprehensive, nationwide threat assessment and because we don’t have a system in place that allows us

to constantly reevaluate that on an ongoing basis. We have no way

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to really determine whether one city is more at risk than another

except for conjecture, mathematical models, and non-specific or

non-confirmed intelligence information.

I come from a background of information driven policing. Police

departments around the country have begun to become very effective in pulling data from a variety of sources, whether abandoned

buildings, abandoned vehicles. They understand what are the causal factors of crime. They identify the data element they need, and

management holds people accountable for addressing crime issues

and preventing crime.

That is the same approach we should be taking in homeland security but we have not identified that baseline yet to begin the

process. From a priority perspective, that should be our top priority—comprehensive nationwide threat assessment. Create the baseline, and create a system so that we can constantly update and reevaluate. That is what guides funding decisions and operational decisions also.

Mr. PUTNAM. Is there a difference in your outlook or your fears

between a Federal agency engaging in factual data analysis inhouse and them doing it on a contracting basis with a private firm?

Is it irrelevant? Does it matter one way or the other to you as far

as the applicability of privacy laws and things like that? Mr.

Steinhardt.

Mr. STEINHARDT. Increasingly what we are finding is that it is

difficult to draw a distinction between when the Government is

doing something and when the private sector is doing something

because government both contracts with the private sector, provide

services and information and sometimes it compels the private sector to provide it with services or information. So it is very difficult.

It seems to me though that when the Government is involved, it

makes sense to apply Constitutional principles to the action whether the Government has hired someone to do it for it or not and that

ought to be the touchstone that the most efficient way to use our

resources at this point is to apply the Constitution. It makes Constitutional sense and makes law enforcement efficiency sense. We

should be applying scarce resources we have in those circumstances

where we have reasonable cause to believe someone has or will

commit a crime. That ought to be the touchstone rather than these

massive sets of speculations that TIA or CAPPS II suggest.

One place to begin spending our scarce resources is to fix what

is broken. I was stunned a few weeks ago to read a notice in the

Federal Register by the Department of Justice in which they said

the National Crime Computer [NCIC], was a data base they could

no longer stand behind the accuracy of. They wanted to be exempted from the requirement that this data base, our central repository

of criminal justice records, is accurate.

Mr. PUTNAM. Who did that?

Mr. STEINHARDT. The Justice Department. That was a stunning

development. For many years, many of us believed the NCIC was

full of garbage but here the Justice Department is saying not only

do we agree it is full of mistake but we are no longer willing to

stand behind it. That is frightening both from a civil liberties perspective because of the mistakes that are going to be made but it

is also frightening from a security perspective, that you have a cenVerDate 11-MAY-2000 12:29 Mar 17, 2004 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 D:\DOCS\91646.TXT HGOVREF1 PsN: HGOVREF1
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tral data base that law enforcement is relying on at both the State,

local and Federal levels and it is simply full of inaccuracy. That is

the kind of thing that might be an appropriate opportunity for this

subcommittee to look at, what systems do we already have in place,

how accurate are they?

The ACLU is not opposed to the concept we have a centralized

repository of criminal justice information but it ought to be accurate both from a civil liberties and a security perspective.

Mr. PUTNAM. Mr. Rosenzweig.

Mr. ROSENZWEIG. To answer your question, the key to oversight

and therefore control is accountability. To the extent that

outsourcing the operation of a system diminishes the accountability

of Federal officials who you will call to account for the operation

of the system, it is to be generally disfavored.

There is obviously no hard and fast rule and there are some

things that are far more efficient to use contractors for and we

should obviously want to do whatever we do with the government

dollar in the most efficient and effective manner.

As a general rule, I would urge you to ensure that any system

that is put in place retains a high degree of accountability in high

level administration officials who you can demand come here and

tell you how CAPPS II or TIA is working or not working.

Mr. PUTNAM. The Wyden amendment was put on the Omnibus

Bill so it is a 1-year issue. What do each of you see as being Congress’ timeline for action and what do you see that action as being

between now and the expiration of the Wyden amendment? What

does the post-Wyden world look like from your perspective and the

timeline for that?

Mr. ROSENZWEIG. I would like to see Congress consider a program like TIA and authorize additional research in the program.

I would urge the research contain a series of guidelines as to what

Congress considers an acceptable program, one that retains accountability. We didn’t talk about the necessity of an audit trail but

I have listed a dozen different recommendations in the written testimony that in suitable legislative language ought to be incorporated in any authorization.

When and if the concept proves itself to be potentially effective,

since I agree with Mr. Steinhardt that we don’t have to address the

liberties questions unless and until the research says we can do the

thing, those who would use it, the FBI, DHS, CIA, come back and

seek further authorization to deploy the system.

Mr. STEINHARDT. Actually your first responsibility begins today.

Today is literally the deadline for DARPA and other Federal agencies involved to submit a report to the Congress in response to the

Wyden amendment on the TIA Program.

We suggested in my testimony a series of questions we hope you

will ask about that report. It seems to me the Congress needs to

carefully scrutinize this report before it authorizes any further construction of the Total Information Awareness Program, you certainly ought to put a halt to it until you satisfy yourselves that it

both will be effective and will protect our freedoms.

Mr. PUTNAM. Recognizing that DARPA is a research agency and

their business is high risk research, isn’t it a bit unusual to apply

a proof of success test to a research agency whose very mission is

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to continue to work things through until they prove they are successful or not. We don’t make cancer research funds contingent

upon finding the cure by a certain date. We understand the nature

of the scientific process is you continue to seek answers based on

a hypothesis and the data you collect in your experimentation. Is

that a bit of an unusual standard?

Mr. STEINHARDT. Here you are talking about fundamental liberties at stake, in some respects the construction of our society. I

don’t think it is unusual at all for Congress to say before we appropriate half a billion dollars, to build a prototype system, TIA, that

we want some demonstration that this is likely to work as opposed

to other possibilities we have for that half a billion dollars that

could be spent.

The Wyden amendment does not prohibit them from going forward with research and they are going forward with research. I am

curious to see what this report says about what they regard as the

likely effects from this program and how they came to those conclusions. I urge you to look closely at that as well. As an appropriator

you need to make decisions about how to spend half a billion dollars. You need to have some assurances that there is a likelihood

of success.

Mr. PUTNAM. Mr. Cohen.

Mr. COHEN. The only thing I would add to what Mr. Rosenzweig

and Mr. Steinhardt said is at the end of the day is that the best

use of half a billion dollars? If our local and State criminal justice

systems, which are going to be a key part of an effective TIA system, still don’t work; if in Maryland you are only able to enter one

warrant per person, so if Montgomery County has an open container warrant for John Cohen, and the Eastern Shore wants to

put a robbery warrant in the system, you can’t do it because of the

way the system is structured, the question becomes: where would

half a billion dollars be spent more effectively, research on TIA or

making sure each State has a robust and interconnected, integrated justice system?

Mr. PUTNAM. Before we conclude, is there other final comments

any of you would like to make or a question of a fellow panelist

that you have not heard today?

Mr. STEINHARDT. I was going to suggest I think the one thing we

all agree on is that we have taken enough of the committee’s time.

Mr. PUTNAM. This is a very important issue and this is not the

end of the committee’s work on this issue. As all of you have pointed out, the report due today will be an important next step to the

further congressional involvement in this matter.

I want to thank all of you for your outstanding insight and comments and I thank the members of the subcommittee who participated.

In the event there may be additional questions we did not get to

today, the record will remain open for 2 weeks for submitted questions and answers which all of you will be expected to respond to.

Thank you all very much.

[Whereupon, at 12:15, the subcommittee was adjourned, to reconvene at the call of the Chair.]

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