The Electronic Privacy Information Center (EPIC), a Washington D. C. - based privacy advocacy group, has recently filed a Freedom of Information Act lawsuit against the Office of the Director of National Intelligence (ODNI) in hopes of obtaining details of the agency’s plan to gather personal data from across the federal government.
As the top intelligence agency in the United States, ODNI coordinates the activities of the CIA, the FBI, the DHS and other intelligence agencies. Under new guidelines, the ODNI plans to obtain and integrate databases containing detailed personal information from across the federal government.
According to EPIC, "The data will be kept for up to five years without the legal safeguards typically in place for personal data held by government agencies. EPIC’s lawsuit asks the agencies to disclose the procedures it has established to safeguard privacy rights."
As regular readers may recall, I recently expressed concern over similar aggregation and analysis of personal information being done by the private sector. I dispute as a matter of principle that private companies have a right to trade in your personal information without full, no-cost disclosure on demand.
Perhaps paradoxically, I am less concerned about the ODNI regulations facilitating similar aggregation and analysis. While the more libertarian among you may deride my prioritization of concerns as "typical big-brother liberalism," I believe these two spheres (private industry versus government) have different levels of compelling interests; and as such, prompt discrete reactions.
In the first instance, the success or failure of a given corporation — even a very large corporation — does not intrude on the security of the republic. As recent events have demonstrated, not even mammoth financial institutions are "too big to fail." There is sufficient elasticity in the economy to absorb even large perturbations.
Second, private companies have no intrinsic right to know things about you. They only have your information insofar as you have assented to their having it — at least that is the predominant fantasy. Unfortunately, they are not now required to tell you what they have or how they use it. As discussed previously, this needs to change.
The mandate of government is wholly different. Government has a compelling interest in knowing who is within the boundaries of the nation. Moreover, as someone who has spent far too many hours on a roadside playing a game of "guess who I am" with random criminals, I argue the government also has a compelling interest in being able to positively identify any person at the moment of rightful governmental intersection.
In other words, if the government has a constitutionally permissible reason to contact you, they have a reasonable expectation of being able to positively identify you.
One could approach this position from a number of directions. There is the preceding law enforcement interest. There is also an interest related to the collection of taxes. Where ODNI is concerned, there are also national security interests. These may include regulation of commerce, immigration, and yes, interdiction of terrorists.
Another distinction between private and governmental interests involves sharing of the data. Where private companies are separable entities, the federal government may be more properly thought of as merely compartmentalized. The government, while divided into areas of focus, is nonetheless one corpus, bound by the Constitution.
When private companies share data, it is transferred between distinct bodies. When governmental agencies share data, it is more akin to blood flowing from one part of the body to another.
Without wandering into teleological justifications of state power, the new ODNI guidelines do little more than permit the government to more freely share those things already in its possession.
This distinction is more than semantic. Philosophically, one might reconcile it as the difference between a Mohist consequentialism and bald Machiavellianism. As Mo Tzu, the fifth century BC Chinese philosopher argues, "When people nearby are not befriended, there is no use endeavoring to attract those at a distance."
This sentiment works equally well in neighborhoods and governments. We must make the most of mutual resources or the whole enterprise becomes untenable. We’ve already seen the fruits of an atomized intelligence community. We can ill-afford another cataclysmic lesson.
Matthew Pate is a former law enforcement executive who holds a doctorate in criminal justice from the University of Albany and who has advised police agencies around the country. He writes from Pine Bluff, Ark. Contact him at firstname.lastname@example.org