American Conservative Union

Testimony at a Hearing on H.R. 338,

the ADefense of Privacy Act@

At a Joint Hearing Before the

Subcommittee on Commercial and Administrative Law and the

Subcommittee on the Constitution of the

Committee on the Judiciary of the House of Representatives

Submitted By

Bob Barr,

21st Century Liberties Chair for Freedom and Privacy,

American Conservative Union

July 22, 2003

I am pleased to offer my views today on behalf of the American Conservative Union at this joint hearing of the Subcommittee on Commercial and Administrative Law and Subcommittee on the Constitution to examine the Defense of Privacy Act, H.R. 338, introduced by Representative Chabot, the distinguished Chairman of the Subcommittee on the Constitution, and Representative Nadler, its ranking member. This legislation also enjoys the support of my good friend Representative Cannon, the distinguished Chairman of the Subcommittee on Commercial and Administrative Law, who I am very pleased to see has so ably taken up the gavel that I was once honored to hold.

I am particularly pleased that you have taken up this issue, Chairman Cannon, as bipartisan work on this issue - and on this important legislation - were, as you know, among the issues most dear to my heart when I sat where you are sitting now. I now appear before you to represent the American Conservative Union, the nation=s oldest conservative lobbying organization, which expresses its strong endorsement of this legislation. I hope we can, together, speedily send this good government initiative on its way through the House and ultimately to the President=s desk.

It is clear that those of us who support this legislation, both in and out of Congress, do not agree on every issue. In fact, however, many observers have been particularly impressed by the political diversity of the bill=s supporters, and I am pleased to be part of a distinguished panel which also spans the conventional ideological spectrum.

Supporters of this legislation share a commitment to protecting the privacy cherished by American citizens -- a value increasingly imperiled in an information age in which personal information has become a commodity that is captured and compiled, manipulated and misused, bought and sold in ways not even imaginable just a few years ago. The sphere of privacy, which Justice Brandeis eloquently described as the Aright to be let alone,@ is not only rapidly diminishing, it is increasingly penetrable. Special care is necessary to ensure that personal information remains personal, absent a sound reason to treat it otherwise. This value is neither Republican or Democratic; liberal or conservative, it is truly an American value; one that remains a the heart of our way of life and of our Bill of Rights.

H.R. 338 takes the first --necessary-- step toward protecting the privacy of information collected by the federal government. While some have decried the loss of personal privacy by private companies, (and this is indeed a matter of grave concern), it must be emphasized that government alone has the authority to compel the disclosure of personal information; and unlike a private commercial gatherer of personal data, the government can put you in jail based on what it uncovers. For this reason, the government has an obligation to exercise great responsibility when enacting policies that undermine privacy rights.

The Defense of Privacy Act requires that rules noticed for public comment by federal agencies be accompanied by an assessment of the rule=s impact on personal privacy interests, including the extent to which the proposed rule provides notice of the collection of personally identifiable information, what information will be obtained, and how it is to be collected, maintained, used and disclosed. The measure further provides that final rules be accompanied by a final privacy impact analysis, which indicates how the issuing agency considered and responded to privacy concerns raised by the public, and explains whether the agency could have taken an approach less burdensome to personal privacy.

Unlike existing laws that protect against the disclosure of information already obtained by the federal government, the Federal Agency Protection of Privacy Act provides prospective notice of a proposed rule=s affect on privacy before it becomes a binding regulation. Together with a wide and diverse array of co-sponsors, I introduced an earlier version of this measure last Congress - H.R. 4561, the Federal Agency Protection of Privacy Act, which passed the full House by a voice vote under suspension of the rules. Unfortunately, the Senate did not take up the measure with the rush of business at the end of a busy 107th Congress, but I am confident that with such broad support we will get the job completed this year.

Like that earlier measure, H.R. 338 specifically articulates the principles that should guide agency action when rules that impact privacy are promulgated: 1) the public should have notice that a rule provides for the collection of personally identifiable information and how the agency will collect, maintain, use and disclose that information; 2) individuals should have access to information that pertains to them and an opportunity to correct inaccuracies; 3) agencies should take steps to prevent information collected for one purpose from being used for another purpose; and 4) agencies should take steps to provide security for such information.

Importantly, H.R. 338 permits individuals who are adversely affected by an agency=s failure to follow its provisions to seek judicial review pursuant to the provisions of the Administrative Procedure Act. In this respect, the bill tracks the administrative innovations of 1996 amendments to the Regulatory Flexibility Act, which provided for the judicial review of rules issued without regard to their impact on small businesses. I can say, without hesitation, that privacy is no less important to American citizens than regulatory burdens are to American businesses, and this measure helps address these concerns.

Finally, I want to emphasize that H.R. 338 will not unduly burden regulators nor will it hinder law enforcement or foreign intelligence gathering. The Defense of Privacy Act will apply the best antiseptic-sunshine- to the federal rulemaking process by securing the public=s right to know about how rules will affect their personal privacy while ensuring that citizens have the opportunity not only to critique the substance of a rule, but to do so with an understanding of the reasoning and justification upon which the rule was predicated.

On behalf of the American Conservative Union, I thank the Committee for this opportunity to express our strong support for this important legislation.