STATEMENT OF SENATOR CHUCK GRASSLEY BEFORE THE SUBCOMMITTEES ON COMMERCIAL AND ADMINISTRATIVE LAW, AND ON THE CONSTITUTION

Hearing on H.R. 338, the Defense of Privacy Act” and Privacy in the Hands of the Government

July 22, 2003

            Chairman Cannon, Chairman Chabot, Members of the Subcommittees, thank you for the opportunity to testify on the important topic of privacy. In this post-September 11 world, the government must do everything within its powers, and within the law, to protect our citizens and country. But more and more this stepped-up protection involves intrusions into our private lives. Some of them are just inconveniences; but some of them approach violations of fundamental rights. The “right to be let alone,” as Justice Brandeis noted in 1928, is the right that Americans cherish more than most any right.

            It is my belief that one of the most important jobs we as legislators and overseers of the executive process do is vigorously guard and protect the right to be let alone. I’d like to focus my remarks on this important oversight aspect of our job and, specifically, on the Terrorist Information Awareness program – T-I-A – that the Defense Department is researching.

            Power can be abused if put in the wrong hands. That’s why checks on power are critical for our privacy. A prosecutor can go too far in pressing a case, harassing and embarrassing a private person. So judges and defense counsel are a critical check on prosecutorial power. Likewise, an overzealous investigator can dig too deep into private lives. So the courts – under the authority of the Constitution – are there to restrain undue probing. Even intelligence officials’ powers are checked by the Foreign Intelligence Surveillance Act and the secret court that enforces that act. Without these checks, even a good-meaning public official can overreach, and exploit our deeply cherished privacy.

            But in some instances, there aren’t systemic checks in place. A public official working deep within the bowels of a government agency may be able to burrow into the private information of people with little or no oversight. H.R. 338 appears to focus on some of those situations where new administrative rules could create opportunities for unwarranted intrusions into privacy. The bill’s impact statement requirement would force careful consideration of appropriate safeguards to protect civil liberties. It is important that this process doesn’t become too cumbersome, create new bureaucracies, or cause unnecessary delays. We need a careful but nimble government to fight terrorism. I look forward to listening to the debate on this bill today and in the coming weeks.

            It’s in these situations, where there’s no obvious safeguard, that the Congress must provide rigorous oversight of the Executive Branch to protect the public – and the public’s cherished privacy rights – against unwarranted government intrusions. Let me describe one such instance where I’ve been involved in heavy oversight to protect civil liberties.

            Many of you may know about the Defense Department’s TIA program that’s designed to test technologies that collect information from public and private databases and try to find trends that could signal threats against the United States. This program’s being run under DARPA, the DOD unit that created the internet. Like many people, I’ve been concerned that TIA could be used to invade the privacy of Americans by snooping around in our bank accounts, personal internet computers, phone records, and the like. In November of last year, I asked the DOD Inspector General to look into the reasons for TIA and to make sure that there are controls in place to ensure that it’s used only for foreign intelligence purposes to protect us against terrorism and foreign threats. The IG investigation is proceeding, and a formal audit of TIA should be finished by the Fall.

            In January of this year, Senator Ron Wyden and I were able to get an amendment attached to the DOD appropriations bill that limited funding for TIA research, and required Congressional reporting and oversight. In a recent report, DOD seems to have embraced its role in restricting the intrusion TIA will have into people’s lives, and has confirmed that it will not, and cannot, meddle into private information that it’s not otherwise allowed access to under the law.

            After 9-11, all of us in the Congress were questioning why the government failed to “connect the dots” and recognize terrorist activities that were interrelated. Well, it’s my understanding that TIA is being researched as a tool that could potentially help connect some dots. We have to be careful about on the one hand demanding that the administration connect the dots – and on the other hand putting a stop to their efforts to connect the dots. I have learned that the DOD appropriations bill that’s currently being debated would cut off all research funding – we need to proceed with caution here. But one thing’s for certain, oversight is critical.

            It’s a delicate balance that Congress must strike between protecting people from terrorism, and protecting people from unwarranted government intrusions into their private lives. In the mix must be rigorous and effective congressional oversight. You can expect that I will continue to carry the oversight torch, and I hope that each of you will too.

            I thank you for your time, and for focusing on this important topic.