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Senate should ask FBI nominee Mueller about privacy, EPIC says

Robert Mueller, FBI director-designate, will be before the Senate Judiciary 
committee on Monday. EPIC's letter is a worthy effort to raise the topic of 
privacy, and will (I hope) get Mueller's views in the public record.

EPIC's Marc Rotenberg correctly says that as the first FBI director of the 
21st century, Mueller will have access to more sophisticated surveillance 
technologies than his predecessors. (Carnivore may get the most attention, 
but I'm more concerned about automated face recognition systems, and I hope 
that comes up on Monday.)

Background on Robert Mueller, FBI director-designate:

Senate hearing notice:

Politech archive on Carnivore:

Politech archive on Kyllo decision:



Date: Fri, 27 Jul 2001 13:31:25 -0400
To: Declan McCullagh <declan@well.com>
From: David Sobel <sobel@epic.org>
Cc: Marc Rotenberg <rotenberg@epic.org>, sobel@epic.org


                 [Electronic Privacy Information Center]

July 26, 2001

Sen. Patrick J. Leahy, Chairman
Sen. Orrin G. Hatch, Ranking Member
Senate Judiciary Committee
United States Senate
224 Dirksen Office Building
Washington, DC 20510

      Re: Nomination of Robert S. Mueller

Dear Chairman Leahy, Senator Hatch and
Members of the Senate Judiciary Committee:

As the Committee prepares to consider the nomination of Robert S.
Mueller to be Director of the Federal Bureau of Investigation (FBI),
we are writing to urge the Committee to include privacy protection and
compliance with the Freedom of Information Act (FOIA) in its inquiry.
As we set forth below, these issues include FBI use of new surveillance
and investigative technologies, including the Carnivore system; FBI
access to personal information contained in private sector databases;
and full and timely compliance with the disclosure requirements of the

New Technologies

Given the increased public concern over the use of new and potentially
invasive technologies by law enforcement agencies, it would be
appropriate to solicit Mr. Mueller's views on this issue. While the
FBI's use of the Carnivore Internet surveillance system properly has
been the subject of much public discussion, other technologies
increasingly are being employed by the FBI and the law enforcement
community. These include video surveillance systems, sophisticated
imaging devices and a wide range of biometric applications such as
facial recognition and retinal scans.

As the Supreme Court recently recognized in Kyllo v. United States,
533 U.S. ____ (2001), "[i]t would be foolish to contend that the
degree of privacy secured to citizens by the Fourth Amendment has been
entirely unaffected by the advance of technology." When law
enforcement employs invasive technology that is not in "general public
use," it must do so in a manner that "assures preservation of that
degree of privacy against government that existed when the Fourth
Amendment was adopted." In light of the Kyllo decision, we believe it
is imperative that Mr. Mueller address this issue, which he will
clearly confront as Director of the FBI.

With respect to the Carnivore system (now designated within the Bureau
as DCS 1000), many questions remain unanswered since the FBI's use of
the system came to light over a year ago. Through our pending FOIA
litigation concerning Carnivore, it appears that neither the FBI nor
the Justice Department conducted an analysis of the legality or
constitutionality of the surveillance technique prior to its
deployment. Despite the fact that the independent technical review
team retained by the Justice Department recommended modifications to
Carnivore last December, those changes have not yet been implemented.
In addition to the recommendations of the technical review team, EPIC
and other privacy groups have urged Attorney General Ashcroft to cure
Carnivore's fundamental constitutional defect by placing the system in
the control of the relevant Internet service provider rather than the
FBI. While the Attorney General recently announced that a new review
of Carnivore is now underway, we believe that Mr. Mueller's views on
this matter should be explored.

Access to Private Sector Databases

One of the most troubling law enforcement developments to arise in
recent years is the increased reliance of investigative agencies on
personal information contained in databases compiled by the private
sector. Through their access to these systems, the FBI and other
agencies routinely obtain a vast range of personal data, the direct
collection of which would appear to be prohibited by the Privacy Act
of 1974. As the Wall Street Journal reported earlier this year,
private data vendors "specialize in doing what the law discourages the
government from doing on its own -- culling, sorting and packaging
data on individuals from scores of sources, including credit bureaus,
marketers and regulatory agencies." (See attached article).

One such company, ChoicePoint, Inc., has a particularly close
relationship with the FBI. The company maintains a specialized
website, "ChoicePoint Online for the FBI" (www.cpfbi.com), to process
data queries from the Bureau. Last year, the Justice Department's
contract with the company reportedly grew to $8 million. We urge the
Committee to seek Mr. Mueller's opinions on the propriety of such

FOIA Compliance

As frequent users of the Freedom of Information Act, we have a
particular interest in Mr. Mueller's familiarity with and commitment
to the Act's disclosure requirements. The FBI's problems with FOIA
compliance are legendary, and it is not at all uncommon for
information requests to languish at the Bureau for many years.

The FBI's resistance to public disclosure and oversight appears to be
deeply ingrained. Norman J. Rabkin of the General Accounting Office
recently testified before this Committee concerning the GAO's
experience with the Bureau.

      While over time we have experienced access-to-records problems at
      different federal agencies, our experience at the FBI is by far
      our most contentious among law enforcement agencies. The FBI's
      reluctance to consistently honor our statutory rights of access
      has forced us to expend significant energy and resources. The FBI
      has also limited our ability to respond to our clients --
      congressional committees and individual Members of Congress -- in
      a timely and efficient way.

Prepared Statement of Norman J. Rabkin, General Accounting Office, Before
the Senate Judiciary Committee, June 20, 2001.

When the GAO has such problems, the Committee can well imagine the
difficulty that average citizens, journalists and public interest
organizations encounter when attempting to utilize FOIA's access
provisions to learn about FBI activities. As Director of the Bureau,
Mr. Mueller would be uniquely situated to remedy this chronic
deficiency. We strongly urge the Committee to elicit a commitment from
Mr. Mueller to address this issue quickly and decisively.

We appreciate your consideration of the foregoing suggestions and
would be pleased to assist the Committee in its ongoing oversight of
the FBI.


Marc Rotenberg                  David L. Sobel
Executive Director              General Counsel


"If the FBI Hopes to Get the Goods on You, It May Ask ChoicePoint,"
Wall Street Journal, pg. 1, April 13, 2001.

cc: Members of the Senate Judiciary Committee

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