WASHINGTON, Oct. 6 (UPI) -- An intelligence bill currently before the Senate would authorize a four-year experiment, during which intelligence and other federal agencies would be exempted from some Privacy Act provisions and able to freely share information about Americans -- if it is relevant to a foreign intelligence, counter-terrorism or anti-proliferation activity.
Privacy and civil liberties advocates immediately condemned the legislation. "This punches yet another enormous hole through the Privacy Act," ACLU Legislative Council Tim Sparapani told United Press International.
Others were more sanguine. Angeline Chen, who teaches national security law at George Mason University, said she felt the authors of the provision were "Trying to strike a balance" between privacy and the need to share information identified by several inquiries into the failure to interdict the Sept. 11 plot.
The bill, the Intelligence Authorization Act for Fiscal Year 2006 was voted out by the Senate Select Committee on Intelligence last week and is currently pending in the Senate.
The committee report accompanying the bill notes that the "Information Sharing Working Group," made up of representatives from U.S. intelligence and law enforcement agencies and from the Departments of Defense and Homeland Security, had recommended the changes last year.
The report notes that "Certain provisions of the Privacy Act could prevent the sharing of intelligence information within the executive branch," adding that under current law, information about a U.S. person held by one government agency cannot be shared with another agency without the person's permission.
That restriction is part of a raft of provisions in the 1974 act, which governs every aspect of the way U.S. agencies gather, store and use personal data about Americans.
Though there are 12 exceptions to the restriction on data sharing, including for information used "to support a civil or criminal law enforcement activity under certain proscribed conditions," the report says there is no such exemption for intelligence.
Section 307 of the new intelligence bill creates one, exempting all 15 U.S. intelligence agencies -- and the departments and offices that house them -- from this requirement. Under the provision, intelligence agencies can also ask for records from non-intelligence agencies -- and be entitled to get them -- if the information relates to terrorism.
If in doubt about whether information is covered, agency heads can consult either the attorney general or the director of national intelligence.
No court order or other judicial instrument is required, but, to get records from a non-intelligence agency, the director of the agency that wants the records must put the request in writing.
The exemption is slightly narrower if the agency holding the record does not have "responsibility... to protect the United States and its interests against the threat of international terrorism or the proliferation of weapons of mass destruction."
The provision is one of a series of measures in the Senate bill that exempt intelligence agencies or the new Director of National Intelligence John Negroponte from several reporting and disclosure provisions.
They include a clause that allows the director of the Defense Intelligence Agency to exempt from the Freedom of Information Act any of the agency's "operational files" -- an authority that the CIA and other U.S. foreign intelligence agencies already had for their own files. It defines "operational files" as those dealing with "the conduct of foreign intelligence or counterintelligence operations" by the agency's Directorate of Human Intelligence.
A statement from the National Security Archive -- a non-profit that has sued to bring to light government documents about abuses by the nation's intelligence agencies -- called the provision the "Abu Ghraib Protection Act."
"The (Defense Intelligence Agency) tried this before and failed because it would protect records about death squads. Now it looks like the (agency) wants to cover up records about Abu Ghraib," commented the archive's director Thomas Blanton.
The bill also exempts the office of the director of national intelligence from normal government financial reporting requirements until 2008.
Other provisions would expand the authorities of defense intelligence personnel to conceal their government affiliation, "to improve the(ir)... ability to recruit sources."
Under the Privacy Act, every agency that maintains records about individuals has to disclose the purposes for which the information is kept -- and other information about the records -- to any person from whom information is sought.
Section 431 of the bill would extend an exemption to that requirement already enjoyed by the CIA and by law enforcement to defense intelligence personnel.
The bill expands the existing exemption for defense personnel, which only covers a single "initial assessment contact outside of the United States.
It was not immediately clear what the scope of the section 307 Privacy Act exemption might be in practice for certain categories of documents.
Tax returns, for example are held by the IRS, part of the Treasury, which is covered by the exemption because it is a department that houses an element of the intelligence community. But tax returns also enjoy special protection in the law.
Health records -- held by several covered agencies including the Department of Defense -- are also covered by specific protections.
Nonetheless, critics were quick to charge that the changes could be the thin end of a very thick wedge.
"I don't trust this kind of expansion of secret intelligence information sharing," said Jim Harper, director of information policy studies at the libertarian Cato Institute and a member of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee.
"I think they're going to broaden it and broaden it until it's where it was in the 1960's and 70's" when intelligence agencies spied on Americans who opposed administration policies, he added.
No one at the office of the Director of National Intelligence or of Sen. Pat Roberts, R-Kan., the chairman of the Senate Intelligence Committee and the authorization bill's sponsor, returned calls and e-mails requesting comment.
The ACLU's Sparapani called the new bill "another chapter in the 30 year history of successive administrations putting exemption after exemption into the act."
"If you punch enough holes in it," he added, "eventually it becomes useless."
"The Privacy act is clearly not up to modern challenges," agreed Harper, saying that the homeland security advisory committee that he was a member of planned to partner with the National Institute of Standards and Technology to review the law, to see if it is still adequate, given the enormous developments in technology since it was passed in 1974.
Chen noted that section 307 sunsetted after four years, which she called "an important safety mechanism."
"They're being very careful and sensitive to the concerns people have about privacy," she said, noting that the measure "left all the other restrictions (on collection, retention and use of personal information in the Privacy Act) in place."
The bill requires annual reports to the House and Senate intelligence committee on the operation of the exemption from the attorney general and the director of national intelligence, "in consultation with" the president's Privacy and Civil Liberties Oversight Board.
The report also "expressly states" that the exemption "does not permit the collection or retention of foreign intelligence or counter-intelligence information not otherwise authorized by law."
