Homeland Security: DHS Privacy Office Has Made Progress but Faces Continuing Challenges
Published: 2007-07-24T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Department of Homeland Security (DHS) Privacy Office was established with the appointment of the first Chief Privacy Officer in April 2003, as required by the Homeland Security Act of 2002. The Privacy Office's major responsibilities include: (1) reviewing and approving privacy impact assessments (PIA)--analyses of how personal information is managed in a federal system, (2) integrating privacy considerations into DHS decision making and ensuring compliance with the Privacy Act of 1974, and (3) preparing and issuing annual reports and reports on key privacy concerns. GAO was asked to testify on its recent report examining progress made by the DHS Privacy Office in carrying out its statutory responsibilities. GAO compared statutory requirements with Privacy Office processes, documents, and activities.
section_title: What GAO Found
paragraphs: The DHS Privacy Office has made significant progress in carrying out its statutory responsibilities under the Homeland Security Act and its related role in ensuring compliance with the Privacy Act of 1974 and E-Government Act of 2002, but more work remains to be accomplished. Specifically, the Privacy Office has established a compliance framework for conducting PIAs, which are required by the E-Gov Act. The framework includes formal written guidance, training sessions, and a process for identifying systems requiring such assessments. The framework has contributed to an increase in the quality and number of PIAs issued as well as the identification of many more affected systems. The resultant workload is likely to prove difficult to process in a timely manner. Designating privacy officers in certain DHS components could help speed processing of PIAs, but DHS has not yet taken action to make these designations. The Privacy Office has also taken actions to integrate privacy considerations into the DHS decision-making process by establishing an advisory committee, holding public workshops, and participating in policy development. However, limited progress has been made in one aspect of ensuring compliance with the Privacy Act--updating public notices for systems of records that were in existence prior to the creation of DHS. These notices should identify, among other things, the type of data collected, the types of individuals about whom information is collected, and the intended uses of the data. Until the notices are brought up-to-date, the department cannot assure the public that the notices reflect current uses and protections of personal information. Further, the Privacy Office has generally not been timely in issuing public reports. For example, a report on the Multi-state Anti-Terrorism Information Exchange program--a pilot project for law enforcement sharing of public records data--was not issued until long after the program had been terminated. Late issuance of reports has a number of negative consequences, including a potential reduction in the reports' value and erosion of the office's credibility.

section_title: Letter
paragraphs: I appreciate the opportunity to be here today to discuss progress made  and challenges faced by the Department of Homeland Security’s (DHS)  Privacy Office. As you know, the Homeland Security Act of 2002 created  the first statutorily required senior privacy official at any federal agency.  This law mandated the appointment of a senior official at DHS to assume  primary responsibility for privacy policy, including, among other things,  assuring that the use of technologies sustains and does not erode privacy  protections relating to the use, collection, and disclosure of personal  information.
As the federal government obtains and processes personal information  about its citizens and residents in increasingly diverse ways to better  secure our homeland, it is important that this information be properly  protected and the privacy rights of individuals respected. Advances in  information technology make it easier than ever for DHS and other  agencies to acquire data on individuals, analyze it for a variety of  purposes, and share it with other governmental and nongovernmental  entities. Further, the demands of the war on terror have led agencies to  seek ways to extract as much value as possible from the information  available to them, adding to the potential for compromising privacy. It is in  this context that the DHS Privacy Officer is charged with ensuring that the  privacy rights of individuals remain adequately addressed.
Formally established with the appointment of the first Chief Privacy  Officer in April, 2003, the DHS Privacy Office is responsible for ensuring  that the department is in compliance with federal laws that govern the use  of personal information by the federal government. Among these laws are  the Homeland Security Act of 2002 (as amended by the Intelligence  Reform and Terrorism Prevention Act of 2004), the Privacy Act of 1974,  and the E-Government Act of 2002 (E-Gov Act). The Privacy Office’s  major responsibilities can be summarized into four broad categories: (1)  reviewing and approving privacy impact assessments (PIA) of the risks  associated with information technology used to process personal  information, as required by the E-Government Act, (2) integrating privacy  considerations into DHS decision making, (3) reviewing and approving  public notices required by the Privacy Act, and (4) preparing and issuing  reports.
My testimony today is based on a report that we recently issued. In that  report, we assessed progress made by the DHS Privacy Office in carrying  out its responsibilities under federal privacy laws, including the Homeland  Security Act and the E-Gov Act. In conducting work for that report, we  compared statutory requirements with Privacy Office processes,  documents, and activities. Our work was performed in accordance with  generally accepted government auditing standards.
Today, after a brief summary and a discussion of the establishment of the  DHS Privacy Office and its major responsibilities, my remarks will focus  on the results of our review of the DHS Privacy Office.
subsections: section_title: Background
paragraphs: The DHS Privacy Office was established with the appointment of the first  Chief Privacy Officer in April 2003. The Chief Privacy Officer is appointed  by the Secretary and reports directly to him. The Chief Privacy Officer  serves as the designated senior agency official for privacy, as has been  required by the Office of Management and Budget (OMB) of all major  departments and agencies since 2005. As a part of the DHS organizational  structure, the Chief Privacy Officer has the ability to serve as a consultant  on privacy issues to other departmental entities that may not have  adequate expertise on privacy issues. In addition, there are also  component-level and program-level privacy officers at the Transportation  Security Administration (TSA), U.S. Visitor and Immigrant Status Indicator  Technology (US-VISIT) program, and U.S. Citizenship and Immigration  Services.
When the Privacy Office was initially established, it had 5 full-time  employees, including the Chief Privacy Officer. Since then, the staff has  expanded to 16 full-time employees. As of February 2007, the Privacy  Office also had 9 full-time and 3 half-time contractor staff. The first Chief  Privacy Officer served from April 2003 to September 2005, followed by an  Acting Chief Privacy Officer who served through July 2006. In July 2006,  the Secretary appointed a second permanent Chief Privacy Officer.
subsections: section_title: Privacy Office Responsibilities
paragraphs: The Privacy Office is responsible for ensuring that DHS is in compliance  with federal laws that govern the use of personal information by the  federal government. Among these laws are the Homeland Security Act of  2002 (as amended by the Intelligence Reform and Terrorism Prevention  Act of 2004), the Privacy Act of 1974, and the E-Gov Act of 2002. Based on  these laws, the Privacy Office’s major responsibilities can be summarized  into these four broad categories:  1.  reviewing and approving PIAs,  2. integrating privacy considerations into DHS decision making,  3.  reviewing and approving public notices required by the Privacy Act,  4.  preparing and issuing reports.
The Privacy Office is responsible for ensuring departmental compliance  with the privacy provisions of the E-Gov Act. Specifically, section 208 of  the E-Gov Act is designed to enhance protection of personally identifiable  information in government information systems and information  collections by requiring that agencies conduct PIAs. In addition, the  Homeland Security Act requires the Chief Privacy Officer to conduct a PIA  for proposed rules of the department on the privacy of personal  information.
According to OMB guidance, a PIA is an analysis of how information is  handled: (1) to ensure that handling conforms to applicable legal,  regulatory, and policy requirements regarding privacy; (2) to determine the  risks and effects of collecting, maintaining, and disseminating personally  identifiable information in an electronic information system; and (3) to  examine and evaluate protections and alternative processes for handling  information to mitigate potential risks to privacy.
Agencies must conduct PIAs before they (1) develop or procure  information technology that collects, maintains, or disseminates  personally identifiable information or (2) initiate any new data collections  of personal information that will be collected, maintained, or disseminated  using information technology—if the same questions are asked of 10 or  more people. To the extent that PIAs are made publicly available, they  provide explanations to the public about such things as what information  will be collected, why it is being collected, how it is to be used, and how  the system and data will be maintained and protected.
Integrating privacy considerations into the DHS decision-making  process  Several of the Privacy Office’s statutory responsibilities involve ensuring  that the major decisions and operations of the department do not have an  adverse impact on privacy. Specifically, the Homeland Security Act  requires that the Privacy Office assure that the use of technologies by the  department sustains, and does not erode, privacy protections relating to  the use, collection, and disclosure of personal information. The act further  requires that the Privacy Office evaluate legislative and regulatory  proposals involving the collection, use, and disclosure of personal  information by the federal government. It also requires the office to  coordinate with the DHS Officer for Civil Rights and Civil Liberties on  those issues.
Reviewing and approving public notices required by the Privacy Act  The Privacy Office is required by the Homeland Security Act to assure that  personal information contained in Privacy Act systems of records is  handled in full compliance with fair information practices as set out in the  Privacy Act of 1974. The Privacy Act places limitations on agencies’  collection, disclosure, and use of personally identifiable information that is  maintained in their systems of records. The act defines a record as any  item, collection, or grouping of information about an individual that is  maintained by an agency and contains that individual’s name or other  personal identifier, such as a Social Security number. It defines “system-of- records” as a group of records under the control of any agency from which  information is retrieved by the name of the individual or by an individual  identifier. The Privacy Act requires agencies to notify the public, via a  notice in the Federal Register, when they create or modify a system-of- records notice. This notice must include information such as the type of  information collected, the types of individuals about whom information is  collected, the intended “routine” uses of the information, and procedures  that individuals can use to review and correct their personal information.  The act also requires agencies to define—and limit themselves to— specific purposes for collecting the information.
The Homeland Security Act requires the Privacy Office to prepare annual  reports to Congress detailing the department’s activities affecting privacy,  including complaints of privacy violations and implementation of the  Privacy Act of 1974. In addition to the reporting requirements under the  Homeland Security Act, Congress has occasionally directed the Privacy  Office to report on specific technologies and programs. For example, in  the conference report for the DHS appropriations act for fiscal year 2005,  Congress directed the Privacy Office to report on DHS’s use of data mining  technologies. The Intelligence Reform and Terrorism Prevention Act of  2004 also required the Chief Privacy Officer to submit a report to Congress  on the impact on privacy and civil liberties of the DHS-maintained  Automatic Selectee and No-Fly lists, which contain names of potential  airline passengers who are to be selected for secondary screening or not  allowed to board aircraft. In addition, the Privacy Office can initiate its  own investigations and produce reports under its Homeland Security Act  authority to report on complaints of privacy violations and assure  technologies sustain and do not erode privacy protections.
section_title: The Privacy Office Has Made Significant Progress in Reviewing and Approving PIAs, but Faces an Increasing Workload
paragraphs: One of the Privacy Office’s primary responsibilities is to review and  approve PIAs to ensure departmental compliance with the privacy  provisions (section 208) of the E-Gov Act of 2002. The Privacy Office has  established a PIA compliance framework to carry out this responsibility.  The centerpiece of the Privacy Office’s compliance framework is its  written guidance on when a PIA must be conducted, how the associated  analysis should be performed, and how the final document should be  written. Although based on OMB’s guidance, the Privacy Office’s  guidance goes further in several areas. For example, the guidance does not  exempt national security systems and also clarifies that systems in the  pilot testing phase are not exempt. The DHS guidance also provides more  detailed instructions than OMB’s guidance on the level of detail to be  provided. For example, the DHS guidance requires a discussion of a  system’s data retention period, procedures for allowing individual access,  redress, correction of information, and technologies used in the system,  such as biometrics or radio frequency identification (RFID).
The Privacy Office has taken steps to continually improve its PIA  guidance. Initially released in February 2004, the guidance has been  updated each year since then. These updates have increased the emphasis  on describing the privacy analysis that should take place in making system  design decisions that affect privacy. For example, regarding information  collection, the latest guidance requires program officials to explain how  the collection supports the purpose(s) of the system or program and the  mission of the organization. The guidance also reminds agencies that the  information collected should be relevant and necessary to accomplish the  stated purpose(s) and mission. To accompany its written guidance, the  Privacy Office has also developed a PIA template and conducted a number  of training sessions to further assist DHS personnel.
Our analysis of published DHS PIAs shows significant quality  improvements in those completed recently compared with those from 2 or  3 years ago. Overall, there is a greater emphasis on analysis of system  development decisions that impact privacy, because the guidance now  requires that such analysis be performed and described. For example, the  most recent PIAs include assessments of planned uses of the system and  information, plans for data retention, and the extent to which the  information is to be shared outside of DHS. Earlier PIAs did not include  any of these analyses.
The emphasis on analysis should allow the public to more easily  understand a system and its impact on privacy. Further, our analysis found  that use of the template has resulted in a more standardized structure,  format, and content, making the PIAs more easily understandable to the  general reader.
In addition to written guidance, the Privacy Office has also taken steps to  integrate PIA development into the department’s established operational  processes. For example, the Privacy Office is using the OMB Exhibit 300  budget process as an opportunity to ensure that systems containing  personal information are identified and that PIAs are conducted when  needed. OMB requires agencies to submit an Exhibit 300 Capital Asset  Plan and Business Case for their major information technology systems in  order to receive funding. The Exhibit 300 template asks whether a system  has a PIA and if it is publicly available. Because the Privacy Office gives  final departmental approval for all such assessments, it is able to use the  Exhibit 300 process to ensure the assessments are completed. According  to Privacy Office officials, the threat of losing funds has helped to  encourage components to conduct PIAs. Integration of the PIA  requirement into these management processes is beneficial in that it  provides an opportunity to address privacy considerations during systems  development, as envisioned by OMB’s guidance.
Because of concerns expressed by component officials that the Privacy  Office’s review process takes a long time and is difficult to understand, the  office has made efforts to improve the process and make it more  transparent to DHS components. Specifically, the office has established a  five-stage review process. Under this process, a PIA must satisfy all the  requirements of a given stage before it can progress to the next one. The  review process is intended to take 5 to 6 weeks, with each stage intended  to take 1 week. Figure 1 illustrates the stages of the review process.
subsections: section_title: Privacy Office Efforts Have Helped to Identify the Need for an Increasing Number of PIAs
paragraphs: Through efforts such as the compliance framework, the Privacy Office has  steadily increased the number of PIAs it has approved and published each  year. Since 2004, PIA output by the Privacy Office has more than doubled.  According to Privacy Office officials, the increase in output was aided by  the development and implementation of the Privacy Office’s structured  guidance and review process. In addition, Privacy Office officials stated  that as DHS components gain more experience, the output should  continue to increase.
Because the Privacy Office has focused departmental attention on the  development and review process and established a structured framework  for identifying systems that need PIAs, the number of identified DHS  systems requiring a PIA has increased dramatically. According to its  annual Federal Information Security Management Act reports, DHS  identified 46 systems as requiring a PIA in fiscal year 2005 and 143 systems  in fiscal year 2006. Based on the privacy threshold analysis process, the  Privacy Office estimates that 188 systems will require a PIA in fiscal year  2007.
Considering that only 25 were published in fiscal year 2006, it will likely be  very difficult for DHS to expeditiously develop and issue PIAs for all of  these systems because developing and approving them can be a lengthy  process. According to estimates by Privacy Office officials, it takes  approximately six months to develop and approve a PIA, but the office is  working to reduce this time.
The Privacy Office is examining several potential changes to the  development process that would allow it to process an increased number  of PIAs. One such option is to allow DHS components to quickly amend  preexisting PIAs. An amendment would only need to contain information  on changes to the system and would allow for quicker development and  review. The Privacy Office is also considering developing standardized  PIAs for commonly-used types of systems or uses. For example, such an  assessment may be developed for local area networks. Systems intended  to collect or use information outside what is specified in the standardized  PIA would need approval from the Privacy Office.
section_title: The Privacy Office Has Taken Steps to Integrate Privacy Into DHS Decision Making
paragraphs: The Privacy Office has also taken steps to integrate privacy considerations  in the DHS decision-making process. These actions are intended to  address a number of statutory requirements, including that the Privacy  Office assure that the use of technologies sustain, and do not erode,  privacy protections; that it evaluate legislative and regulatory proposals  involving the collection, use, and disclosure of personal information by the  federal government; and that it coordinate with the DHS Officer for Civil  Rights and Civil Liberties.
For example, in 2004, the first Chief Privacy Officer established the DHS  Data Privacy and Integrity Advisory Committee to advise her and the  Secretary on issues within the department that affect individual privacy, as  well as data integrity, interoperability, and other privacy-related issues.  The committee has examined a variety of privacy issues, produced reports,  and made recommendations. In December 2006, the committee adopted  two reports; one on the use of RFID for identity verification and another  on the use of commercial data. According to Privacy Office officials, the  additional instructions on the use of commercial data contained in the May  2007 PIA guidance update were based, in part, on the advisory committee’s  report on commercial data.
In addition to its reports, which are publicly available, the committee  meets quarterly in Washington, D.C., and in other parts of the country  where DHS programs operate. These meetings are open to the public and  transcripts of the meetings are posted on the Privacy Office’s Web site.  DHS officials from major programs and initiatives involving the use of  personal data such as US-VISIT, Secure Flight, and the Western  Hemisphere Travel Initiative, have testified before the committee. Private  sector officials have also testified on topics such as data integrity, identity  authentication, and RFID.
Because the committee is made up of experts from the private sector and  the academic community, it brings an outside perspective to privacy issues  through its reports and recommendations. In addition, because it was  established as a federal advisory committee, its products and proceedings  are publicly available and thus provide a public forum for the analysis of  privacy issues that affect DHS operations.
The Privacy Office has also taken steps to raise awareness of privacy  issues by holding a series of public workshops. The first workshop, on the  use of commercial data for homeland security, was held in September  2005. Panel participants consisted of representatives from academia, the  private sector, and government. In April 2006, a second workshop  addressed the concept of public notices and freedom of information  frameworks. In June 2006, a workshop was held on the policy, legal, and  operational frameworks for PIAs and privacy threshold analyses and  included a tutorial for conducting PIAs. Hosting public workshops is  beneficial in that it allows for communication between the Privacy Office  and those who may be affected by DHS programs, including the privacy  advocacy community and the general public.
subsections: section_title: Privacy Office Officials Have Participated in the DHS Decision-making Process
paragraphs: Another part of the Privacy Office’s efforts to carry out its Homeland  Security Act requirements is its participation in departmental policy  development for initiatives that have a potential impact on privacy. The  Privacy Office has been involved in policy discussions related to several  major DHS initiatives and, according to department officials, the office has  provided input on several privacy-related decisions. The following are  major initiatives in which the Privacy Office has participated.
Passenger name record negotiations with the European Union  United States law requires airlines operating flights to or from the United  States to provide the Bureau of Customs and Border Protection (CBP)  with certain passenger reservation information for purposes of combating  terrorism and other serious criminal offenses. In May 2004, an  international agreement on the processing of this information was signed  by DHS and the European Union. Prior to the agreement, CBP  established a set of terms for acquiring and protecting data on European  Union citizens, referred to as the “Undertakings”. In September 2005,  under the direction of the first Chief Privacy Officer, the Privacy Office  issued a report on CBP’s compliance with the Undertakings in which it  provided guidance on necessary compliance measures and also required  certain remediation steps. For example, the Privacy Office required CBP to  review and delete data outside the 34 data elements permitted by the  agreement. According to the report, the deletion of these extraneous  elements was completed in August 2005 and was verified by the Privacy  Office.
In October 2006, DHS and the European Union completed negotiations on  a new interim agreement concerning the transfer and processing of  passenger reservation information. The Director of International Privacy  Policy within the Privacy Office participated in these negotiations along  with others from DHS in the Policy Office, Office of General Counsel, and  CBP.
The Western Hemisphere Travel Initiative is a joint effort between DHS  and the Department of State to implement new documentation  requirements for certain U.S. citizens and nonimmigrant aliens entering  the United States. DHS and State have proposed the creation of a special  identification card that would serve as an alternative to a traditional  passport for use by U.S. citizens who cross land borders or travel by sea  between the United States, Canada, Mexico, the Caribbean, or Bermuda.  The card is to use a technology called vicinity RFID to transmit  information on travelers to CBP officers at land and sea ports of entry.  Advocacy groups have raised concerns about the proposed use of vicinity  RFID because of privacy and security risks due primarily to the ability to  read information from these cards from distances of up to 20 feet. The  Privacy Office was consulted on the choice of identification technology for  the cards. According to the DHS Policy Office, Privacy Office input led to a  decision not to store or transmit personally identifiable information on the  RFID chip on the card. Instead, DHS is planning on transmitting a  randomly-generated identifier for individuals, which is to be used by DHS  to retrieve information about the individual from a centralized database.
REAL ID Act of 2005  Among other things, the REAL ID Act requires DHS to consult with the  Department of Transportation and the states in issuing regulations that set  minimum standards for state-issued REAL ID drivers’ licenses and  identification cards to be accepted for official purposes after May 11, 2008.  Advocacy groups have raised a number of privacy concerns about REAL  ID, chiefly that it creates a de facto national ID that could be used in the  future for privacy-infringing purposes and that it puts individuals at  increased risk of identity theft. The DHS Policy Office reported that it  included Privacy Office officials, as well as officials from the Office of  Civil Rights and Civil Liberties, in developing its implementing rule for  REAL ID. The Privacy Office’s participation in REAL ID also served to  address its requirement to evaluate legislative and regulatory proposals  concerning the collection, use, and disclosure of personal information by  the federal government. According to its November 2006 annual report,  the Privacy Office championed the need for privacy protections regarding  the collection and use of the personal information that will be stored on  the REAL ID drivers’ licenses. Further, the office reported that it funded a  contract to examine the creation of a state federation to implement the  information sharing required by the act in a privacy-sensitive manner.
As we have previously reported, DHS has used personal information  obtained from commercial data providers for immigration, fraud  detection, and border screening programs but, like other agencies, does  not have policies in place concerning its uses of these data. Accordingly,  we recommended that DHS, as well as other agencies, develop such  policies. In response to the concerns raised in our report and by privacy  advocacy groups, Privacy Office officials said they were drafting a  departmentwide policy on the use of commercial data. Once drafted by the  Privacy Office, this policy is to undergo a departmental review process  (including review by the Policy Office, General Counsel, and Office of the  Secretary), followed by a review by OMB prior to adoption.
These examples demonstrate specific involvement of the Privacy Office in  major DHS initiatives. However, Privacy Office input is only one factor  that DHS officials consider in formulating decisions about major  programs, and Privacy Office participation does not guarantee that privacy  concerns will be fully addressed. For example, our previous work has  highlighted problems in implementing privacy protections in specific DHS  programs, including Secure Flight and the ADVISE program.  Nevertheless, the Privacy Office’s participation in policy decisions  provides an opportunity for privacy concerns to be raised explicitly and  considered in the development of DHS policies.
section_title: The Privacy Office Has Coordinated Activities with the DHS Officer for Civil Rights and Civil Liberties
paragraphs: The Privacy Office has also taken steps to address its mandate to  coordinate with the DHS Officer for Civil Rights and Civil Liberties on  programs, policies, and procedures that involve civil rights, civil liberties,  and privacy considerations, and ensure that Congress receives appropriate  reports. The DHS Officer for Civil Rights and Civil Liberties cited three  specific instances where the offices have collaborated. First, as stated  previously, both offices have participated in the working group involved in  drafting the implementing regulations for REAL ID. Second, the two  offices coordinated in preparing the Privacy Office’s report to Congress  assessing the privacy and civil liberties impact of the No-Fly and Selectee  lists used by DHS for passenger prescreening. Third, the two offices  coordinated on providing input for the “One-Stop Redress” initiative, a  joint initiative between the Department of State and DHS to implement a  streamlined redress center for travelers who have concerns about their  treatment in the screening process.
section_title: Although Privacy Act Processes Have Been Established, Little Progress Has Been Made in Updating Public Notices for DHS Legacy Systems- of-Records
paragraphs: The DHS Privacy Office is responsible for reviewing and approving DHS  system-of-records notices to ensure that the department complies with the  Privacy Act of 1974. Specifically, the Homeland Security Act requires the  Privacy Office to “assur that personal information contained in Privacy  Act systems of records is handled in full compliance with fair information  practices as set out in the Privacy Act of 1974.” The Privacy Act requires  that federal agencies publish notices in the Federal Register on the  establishment or revision of systems of records. These notices must  describe the nature of a system-of-records and the information it  maintains. Additionally, OMB has issued various guidance documents for  implementing the Privacy Act. OMB Circular A-130, for example, outlines  agency responsibilities for maintaining records on individuals and directs  government agencies to conduct biennial reviews of each system-of- records notice to ensure that it accurately describes the system-of- records.
The Privacy Office has taken steps to establish a departmental process for  complying with the Privacy Act. It issued a management directive that  outlines its own responsibilities as well as those of component-level  officials. Under this policy, the Privacy Office is to act as the department’s  representative for matters relating to the Privacy Act. The Privacy Office is  to issue and revise, as needed, departmental regulations implementing the  Privacy Act and approve all system-of-records notices before they are  published in the Federal Register. DHS components are responsible for  drafting system-of-records notices and submitting them to the Privacy  Office for review and approval. The management directive was in addition  to system-of-records notice guidance published by the Privacy Office in  August 2005. The guidance discusses the requirements of the Privacy Act  and provides instructions on how to prepare system-of-records notices by  listing key elements and explaining how they must be addressed. The  guidance also lists common routine uses and provides standard language  that DHS components may incorporate into their notices. As of February  2007, the Privacy Office had approved and published 56 system-of-records  notices, including updates and revisions as well as new documents.
However, the Privacy Office has not yet established a process for  conducting a biennial review of system-of-records notices, as required by  OMB. OMB Circular A-130 directs federal agencies to review their notices  biennially to ensure that they accurately describe all systems of records.  Where changes are needed, the agencies are to publish amended notices in  the Federal Register.
The establishment of DHS involved the consolidation of a number of  preexisting agencies, thus, there are a substantial number of systems that  are operating under preexisting, or “legacy,” system-of-records notices— 218, as of February 2007. These documents may not reflect changes that  have occurred since they were prepared. For example, the system-of- records notice for the Treasury Enforcement and Communication System  has not been updated to reflect changes in how personal information is  used that has occurred since the system was taken over by DHS from the  Department of the Treasury.
The Privacy Office acknowledges that identifying, coordinating, and  updating legacy system-of-records notices is the biggest challenge it faces  in ensuring DHS compliance with the Privacy Act. Because it focused its  initial efforts on PIAs and gave priority to DHS systems of records that  were not covered by preexisting notices, the office did not give the same  priority to performing a comprehensive review of existing notices.  According to Privacy Office officials, the office is encouraging DHS  components to update legacy system-of-records notices and is developing  new guidance intended to be more closely integrated with its PIA  guidance. However, no significant reduction has yet been made in the  number of legacy system-of-records notices that need to be updated.
By not reviewing notices biennially, the department is not in compliance  with OMB direction. Further, by not keeping its notices up-to-date, DHS  hinders the public’s ability to understand the nature of DHS systems-of- records notices and how their personal information is being used and  protected. Inaccurate system-of-records notices may make it difficult for  individuals to determine whether their information is being used in a way  that is incompatible with the purpose for which it was originally collected.
section_title: Privacy Office Has Generally Not Issued Reports in a Timely Fashion
paragraphs: Section 222 of the Homeland Security Act requires that the Privacy Officer  report annually to Congress on “activities of the Department that affect  privacy, including complaints of privacy violations, implementation of the  Privacy Act of 1974, internal controls, and other matters.” The act does not  prescribe a deadline for submission of these reports; however, the  requirement to report “on an annual basis” suggests that each report  should cover a 1-year time period and that subsequent annual reports  should be provided to Congress 1 year after the previous report was  submitted. Congress has also required that the Privacy Office report on  specific departmental activities and programs, including data mining and  passenger prescreening programs. In addition, the first Chief Privacy  Officer initiated several investigations and prepared reports on them to  address requirements to report on complaints of privacy violations and to  assure that technologies sustain and do not erode privacy protections.
In addition to satisfying legal requirements, the issuance of timely public  reports helps in adhering to the fair information practices, which the  Privacy Office has pledged to support. Public reports address openness— the principle that the public should be informed about privacy policies and  practices and that individuals should have a ready means of learning about  the use of personal information—and the accountability principle—that  individuals controlling the collection or use of personal information  should be accountable for taking steps to ensure implementation of the  fair information principles.
The Privacy Office has not been timely and in one case has been  incomplete in addressing its requirement to report annually to Congress.  The Privacy Office’s first annual report, issued in February 2005, covered  14 months from April 2003 through June 2004. A second annual report, for  the next 12 months, was never issued. Instead, information about that  period was combined with information about the next 12-month period,  and a single report was issued in November 2006 covering the office’s  activities from July 2004 through July 2006. While this report generally  addressed the content specified by the Homeland Security Act, it did not  include the required description of complaints of privacy violations.
Other reports produced by the Privacy Office have not met statutory  deadlines or have been issued long after privacy concerns had been  addressed. For example, although Congress required a report on the  privacy and civil liberties effects of the No-Fly and Automatic Selectee  Lists by June 2005, the report was not issued until April 2006, nearly a  year late. In addition, although required by December 2005, the Privacy  Office’s report on DHS data mining activities was not provided to  Congress until July 2006 and was not made available to the public on the  Privacy Office Web site until November 2006.
In addition, the first Chief Privacy Officer initiated four investigations of  specific programs and produced reports on these reviews. Although two of  the four reports were issued in a relatively timely fashion, the other two  reports were issued long after privacy concerns had been raised and  addressed. For example, a report on the Multi-state Anti-Terrorism  Information Exchange program, initiated in response to a complaint by the  American Civil Liberties Union submitted in May 2004, was not issued  until two and a half years later, long after the program had been  terminated. As another example, although drafts of the recommendations  contained in the Secure Flight report were shared with TSA staff as early  as summer 2005, the report was not released until December 2006, nearly a  year and a half later.
According to Privacy Office officials, there are a number of factors  contributing to the delayed release of its reports, including time required  to consult with affected DHS components as well as the departmental  clearance process, which includes the Policy Office, the Office of General  Counsel, and the Office of the Secretary. After that, drafts must be sent to  OMB for further review. In addition, the Privacy Office did not establish  schedules for completing these reports that took into account the time  needed for coordination with components or departmental and OMB  review.
Regarding the omission of complaints of privacy violations in the latest  annual report, Privacy Office officials noted that the report cites previous  reports on Secure Flight and the Multi-state Anti-Terrorism Information  Exchange program, which were initiated in response to alleged privacy  violations, and that during the time period in question there were no  additional complaints of privacy violations. However, the report itself  provides no specific statements about the status of privacy complaints; it  does not state that there were no privacy complaints received.
Late issuance of reports has a number of negative consequences beyond  noncompliance with mandated deadlines. First, the value these reports are  intended to provide is reduced when the information contained is no  longer timely or relevant. In addition, since these reports serve as a critical  window into the operations of the Privacy Office and on DHS programs  that make use of personal information, not issuing them in a timely fashion  diminishes the office’s credibility and can raise questions about the extent  to which the office is receiving executive-level attention. For example,  delays in releasing the most recent annual report led a number of privacy  advocates to question whether the Privacy Office had adequate authority  and executive-level support. Congress also voiced this concern in passing  the Department of Homeland Security Appropriations Act of 2007, which  states that none of the funds made available in the act may be used by any  person other than the Privacy Officer to “alter, direct that changes be  made to, delay, or prohibit the transmission to Congress” of its annual  report. In addition, on January 5, 2007, legislation was introduced entitled  “Privacy Officer with Enhanced Rights Act of 2007”. This bill, among other  things, would provide the Privacy Officer with the authority to report  directly to Congress without prior comment or amendment by either OMB  or DHS officials who are outside the Privacy Office. Until its reports are  issued in a timely fashion, questions about the credibility and authority of  the Privacy Office will likely remain.
section_title: Implementation of GAO Recommendations Would Lead to Improvements in Privacy Office Operations
paragraphs: In order to ensure that Privacy Act notices reflect current DHS activities  and to help the Privacy Office meet its obligations and issue reports in a  timely manner, in our report we recommended that the Secretary of  Homeland Security take the following four actions:  1.  Designate full-time privacy officers at key DHS components, such as  Customs and Border Protection, the U.S. Coast Guard, Immigration  and Customs Enforcement, and the Federal Emergency Management  Agency.  2.  Implement a department-wide process for the biennial review of  system-of-records notices, as required by OMB.  3.  Establish a schedule for the timely issuance of Privacy Office reports  (including annual reports), which appropriately consider all aspects of  report development, including departmental clearance.  4.  Ensure that the Privacy Office’s annual reports to Congress contain a  specific discussion of complaints of privacy violations, as required by  law.
Concerning our recommendation that it designate full-time privacy  officers in key departmental components, DHS noted in comments on a  draft of our report that the recommendation was consistent with a  departmental management directive on compliance with the Privacy Act  and stated that it would take the recommendation “under advisement.”  However, according to Privacy Office officials, as of July 2007, no such  designations have been made. Until DHS appoints such officers, the  Privacy Office will not benefit from their potential to help speed the  processing of PIAs, nor will component programs be in a position to  benefit from the privacy expertise these officials could provide.
DHS concurred with the other three recommendations and noted actions  initiated to address them. Specifically, regarding our recommendation that  DHS implement a process for the biennial review of system-of-records  notices required by OMB, DHS noted that it is systematically reviewing  legacy system-of-records notices in order to issue updated notices on a  schedule that gives priority to systems with the most sensitive personally  identifiable information. DHS also noted that the Privacy Office is to issue  an updated system-of-records notice guide by the end of fiscal year 2007.  As of July 2007, DHS officials reported that they have 215 legacy SORNs  that need to be reviewed and either revised or retired. Until DHS reviews  and updates all of its legacy notices as required by federal guidance, it  cannot assure the public that its notices reflect current uses and  protections of personal information.
Concerning our recommendations related to timely reporting, DHS stated  that the Privacy Office will work with necessary components and  programs affected by its reports to provide for both full collaboration and  coordination within DHS. Finally, regarding our recommendation that the  Privacy Office’s annual reports contain a specific discussion of privacy  complaints, as required by law, DHS agreed that a consolidated reporting  structure for privacy complaints within the annual report would assist in  assuring Congress and the public that the Privacy Office is addressing the  complaints that it receives.
In summary, the DHS Privacy Office has made significant progress in  implementing its statutory responsibilities under the Homeland Security  Act; however, more work remains to be accomplished. The office has  made great strides in implementing a process for developing PIAs,  contributing to greater output over time and higher quality assessments.  The Privacy Office has also provided the opportunity for privacy to be  considered at key stages in systems development by incorporating PIA  requirements into existing management processes. The office faces  continuing challenges in reducing its backlog of systems requiring PIAs,  ensuring that system-of-records notices are kept up to date, and in issuing  reports in a timely fashion.
Mr. Chairman, this concludes my testimony today. I would be happy to  answer any questions you or other members of the subcommittee may  have.
section_title: Contacts and Acknowledgments
paragraphs: If you have any questions concerning this testimony, please contact Linda  Koontz, Director, Information Management, at (202) 512-6240, or  koontzl@gao.gov. Other individuals who made key contributions include  John de Ferrari, Nancy Glover, Anthony Molet, David Plocher, and Jamie  Pressman.
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