Publications

The Washington Post, June 15, 2004 - Floyd Abrams

Heather Mac Donald's May 31 op-ed attacking the recommendations of an advisory committee I served on that was appointed by Defense Secretary Donald H. Rumsfeld does not do justice to the topic we addressed or to our conclusions.

The report, "Safeguarding Privacy in the Fight Against Terrorism," was the product of more than a year of testimony and study of a panel headed by former Federal Communications Commission chairman Newton Minow. Other panelists were two former Cabinet members (Griffin Bell and William Coleman Jr.), a former secretary of the Army and member of Congress (John O. Marsh Jr.), a counsel to presidents Bill Clinton and Jimmy Carter (Lloyd Cutler), a former president of Stanford University (Gerhard Casper), and an associate counsel to Mr. Carter (Zoe Baird).

It would be surprising if all but one of these panel members (Mr. Coleman having dissented on certain matters) suffered from "technophobia" to the point that they would recommend policies that "would bring our intelligence efforts to a halt, and leave us vulnerable to the next terror attack," to quote Ms. Mac Donald.

The committee was asked by Mr. Rumsfeld to balance the prevention of acts of terrorism with the protection of individual privacy. Our response was that technologies should be developed to help to identify terrorists before they act. Privacy concerns could be accommodated by requiring the government to comply with a series of safeguards.

Written authorization should be obtained to engage in data-mining operations, with most data mining involving information that could personally identify Americans being conducted only with the authorization of the Foreign Intelligence Surveillance Court.

Data-mining activities can serve constructive purposes in the fight against terrorism while still raising serious privacy issues. Since the magnitude of those issues depends on many factors, including the sensitivity of the data being mined and the expectation of privacy reasonably associated with the data, we proposed that the government meet certain legal and technological requirements that accommodate privacy interests before engaging in data mining concerning Americans.

When data mining is limited to searches based on distinct suspicions about a specific individual, we urged no changes from current practice.

Examination of airline passenger lists, we recommended, should not be subject to new regulatory requirements. Nor should data mining concerning federal employees solely in connection with their employment.

But to protect the privacy of all Americans we recommended that data mining by the government of information that could personally identify Americans did require some limits.

FLOYD ABRAMS

New York