[NCUC-DISCUSS] One example of how NSA used personal data

[DeeDee Halleck]

*Americans' Personal Data Shared With CIA, IRS, Others in Security
Probe*Friday,
15 November 2013 12:01
By Marisa Taylor <http://truth-out.org/author/itemlist/user/45876>, McClatchy
Newspapers<http://www.mcclatchydc.com/2013/11/14/208438/americans-personal-data-shared.html>
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Washington - U.S. agencies collected and shared the personal information of
thousands of Americans in an attempt to root out untrustworthy federal
workers that ended up scrutinizing people who had no direct ties to the
U.S. government and simply had purchased certain books.

Federal officials gathered the information from the customer records of two
men who were under criminal investigation for purportedly teaching people
how to pass lie detector tests. The officials then distributed a list of
4,904 people – along with many of their Social Security numbers, addresses
and professions – to nearly 30 federal agencies, including the Internal
Revenue Service, the CIA, the National Security Agency and the Food and
Drug Administration.

Although the polygraph-beating techniques are unproven, authorities hoped
to find government employees or applicants who might have tried to use them
to lie during the tests required for security clearances. Officials with
multiple agencies confirmed that they’d checked the names in their
databases and planned to retain the list in case any of those named take
polygraphs for federal jobs or criminal investigations.

It turned out, however, that many people on the list worked outside the
federal government and lived across the country. Among the people whose
personal details were collected were nurses, firefighters, police officers
and private attorneys, McClatchy learned. Also included: a psychologist, a
cancer researcher and employees of Rite Aid, Paramount Pictures, the
American Red Cross and Georgetown University.

Moreover, many of them had only bought books or DVDs from one of the men
being investigated and didn’t receive the one-on-one training that
investigators had suspected. In one case, a Washington lawyer was listed
even though he’d never contacted the instructors. Dozens of others had
wanted to pass a polygraph not for a job, but for a personal reason: The
test was demanded by spouses who suspected infidelity.

The unprecedented creation of such a list and decision to disseminate it
widely demonstrate the ease with which the federal government can collect
and share Americans’ personal information, even when there’s no clear
reason for doing so.

The case comes to light amid revelations that the NSA, in an effort to
track foreign terrorists, has for years been stockpiling the data of the
daily telephone and Internet communications of tens of millions of ordinary
Americans. Though nowhere near as massive as the NSA programs, the
polygraph inquiry is another example of the federal government’s vast
appetite for Americans’ personal information and the sweeping legal
authority it wields in the name of national security.

“This is increasingly happening – data is being collected by the federal
government for one use and then being entirely repurposed for other uses
and shared,” said Fred Cate, an Indiana University-Bloomington law
professor who specializes in information privacy and national security.
“Yet there is no constitutional protection for sharing data within the
government.”

Several people who were on the list not only were stunned to learn about
it, but they also questioned how the government could legally collect and
share their information when they have no direct link to the inquiry. All
of them said they were too nervous to be identified because they feared
further scrutiny from the federal government or they didn’t want their
names published by the media.

“When it comes to national security, the government has a lot of leeway,”
said one Washington lawyer whose husband landed on the list after the
lawyer bought a book about how to pass lie detector tests. “But to me, this
list raises First Amendment, due process and privacy issues.”

The lawyer doesn’t work for the federal government. The husband is a
government employee but isn’t required to take a lie detector test for a
security clearance. “I’m concerned this may harm his career even though
there’s no reason that it should,” said the lawyer, who added that they
planned to ask the government to take the husband’s name off the list.
“It’s very alarming and McCarthy-esque in its zeal. To put a person on a
secret list because they bought the ‘wrong book’ or are associated with
someone who did is overly paranoid."

While the collection of the information likely passes constitutional
muster, the federal agencies involved may have violated their own privacy
policies by sharing the personal information of people who aren’t
government employees, several legal experts agreed.

Some federal security officials also questioned how useful the list would
be. Not only are the polygraph-beating techniques unproven, but confirming
that they’ve been used is nearly impossible as well, scientists agree. In
fact, the polygraph itself is deemed so unreliable that most courts don’t
allow the results to be submitted as evidence against criminal suspects.

Federal agencies, however, are under increased pressure to detect security
violators, also known as “insider threats,” ever since former NSA
contractor Edward Snowden leaked documents earlier this year outlining the
agency’s extensive collection of telephone and Internet data.

The Snowden case is only the latest in a series of what the government
condemns as betrayals by “trusted insiders” who’ve harmed national
security. As a result, the Obama administration has been pressing a
government-wide crackdown on security threats that requires federal
employees at agencies from the NSA to the CIA and the Peace Corps to the
Department of Education to keep closer tabs on their co-workers and exhorts
managers to punish those who fail to report suspicious behavior.

Officials say that one of the reasons for retaining the list of nearly
5,000 names is to help federal agencies detect future security violators,
such as the next Snowden. It’s unclear how helpful such a list would be in
that regard, though. Snowden underwent two polygraphs for his NSA job but
he wasn’t found to have used polygraph-beating techniques to pass them,
officials familiar with his tests told McClatchy. The NSA refused to
comment.

Customs and Border Protection, the Department of Homeland Security agency
that’s leading the polygraph investigation, has described it as important
in rooting out crooked customs officials at the U.S.-Mexico border.
Customs’ internal affairs division launched the polygraph inquiry after
identifying 10 applicants who’d received the lie detector training from one
of the instructors. Customs then assembled the list of customers’ names
earlier this year as a result of court-approved search warrants that remain
under seal in the criminal investigation, known as Operation Lie Busters.

Federal authorities acknowledge that the mere teaching of such techniques
is protected by the First Amendment. However, prosecutors have pursued a
novel legal theory in order to seek criminal charges. They assert that
instructors who help federal applicants or employees try to hide lies
during government polygraph tests are guilty of obstruction.

One of the Customs and Border Protection internal affairs officials
involved in the case has urged authorities across the country to keep track
of people who learn the techniques. The methods, known as countermeasures,
include controlled breathing, muscle tensing, tongue biting and mental
arithmetic.

“You have access to all of this data – all of their financial records, all
of their telephone records, all of their transactions . . . ,” Customs
official John Schwartz said in a June speech to police polygraphers that
McClatchy attended. “Then we can look at that list and determine for
ourselves if we are good or not good at detecting these countermeasures.”

Schwartz didn’t return calls about the case. Customs spokesman Michael
Friel said that “since the matter is under investigation it would be
inappropriate to comment at this time.”

In an email disseminating one version of the list in a spreadsheet, Defense
Department official Frank Maietta asked polygraph managers at each agency
to check the list for any federal workers or job applicants who might have
gotten training.

The agencies included federal law enforcement and intelligence agencies
such as the FBI and the Defense Intelligence Agency and others such as the
Department of Energy and the Transportation Security Administration.
McClatchy contacted the federal agencies that received the list from
Schwartz and Maietta but most refused to respond to questions, citing the
criminal investigation. Several, however, defended their overall adherence
to privacy laws.

In the email to the agencies, Maietta, a polygraph official with the
Defense Intelligence Agency, described the information as “merely a mailing
list obtained from this case.”

“There’s no indication that any of these individuals did anything wrong,
actually received hands-on training, took a polygraph anywhere, utilized
countermeasures or are with any federal agency," he wrote in the email in
May.

Maietta said an earlier request for the same database check resulted in
“very few” responses.

“Some of you indicated your agencies would not allow you to share
information,” he wrote.

Nonetheless, the search eventually yielded dozens of federal applicants,
several security officials with knowledge of the case told McClatchy. As
fresh personnel information was gathered, officials updated the lists and
circulated them across the government.

However, only a small percentage of the people on the list were employees
with security clearances, said the officials, who asked to remain anonymous
because of the sensitivity of the matter. They included one NSA contractor
who feared revealing financial problems, a potentially career-ending
admission.

Of the several hundred people who might have been linked to the Defense
Department, however, a fraction underwent lie detector tests. Also, a
portion of them hadn’t worked for the department since the 1980s.

“There was serious effort put into this list but it turned out to be a
whole lot of nothing,” said one federal security official with knowledge of
the overall effort who asked not to be named for fear of retaliation. “Only
a handful of federal employees were directly involved.”

Sex offenders appeared on the list, including convicted child molesters who
have to undergo post-conviction polygraph testing in some states, officials
confirmed. But such offenders generally are monitored by state or local
authorities, not the federal agencies that received the list. Federal
prosecutors also don’t have the jurisdiction to seek charges related to
those offenders.

Many, if not all, of the 4,904 names appear to be customers of an
instructor who hasn’t been prosecuted and may never be. Federal agents
collected the data in a search of Oklahoma instructor Doug Williams’
computers and business records. Williams, however, has said that he hasn’t
committed a crime.

So far, one instructor has been prosecuted. Chad Dixon of Indiana began
serving eight months in prison this month after pleading guilty earlier
this year to obstruction charges, mainly as a result of an undercover
sting. Dixon was recorded telling undercover agents that they shouldn’t
tell federal officials about learning the techniques.

Despite Dixon’s criminal investigation, one of the numerous nurses on the
list questioned why federal agencies would have a legitimate interest in
her personal information.

“I’m not a federal employee. I’m a nurse,” she said. The 42-year-old woman
declined to say why she’d sought the advice, but nurses are required to
pass lie detector tests in some states for their licenses. “This does
bother me,” she added about the effort. “My information was supposed to be
confidential.”

The Supreme Court, however, has held that people who voluntarily turn over
information to a “third party,” such as the polygraph instructors, would
have no expectation of privacy under the Fourth Amendment.

“It doesn’t seem right to tar people and give them what is a scarlet letter
of being likely liars just because they’ve been reading or thinking about
beating lie detector tests,” said Lee Tien, a senior staff attorney with
the Electronic Frontier Foundation, a civil liberties group. “But the fact
is government agencies have an enormous free zone when collecting and
sharing data.”

Even so, it’s not clear under what circumstances various government
agencies should continue retaining and sharing information about people
whose only connection to the case was a book purchase.

“I think it’s a fair question to ask,” said Stephanie Pell, a former
federal prosecutor with the Justice Department’s National Security
Division. “What is the government’s rationale for continuing to retain and
share the information once it is established that all someone did was buy a
book?”

Others assert that the government clearly overreached. Customs officials
recently confronted leaders of the agency’s union about their purchase of
Williams’ book on beating lie detectors. Joseph Martin, the president of
the Arizona chapter of the National Treasury Employees Union, said his vice
president bought the book so the union could urge members not to
voluntarily undergo a polygraph, because of its unreliability.

“What business is it of the government’s if we bought this book?” he said.
“We have a right to read about lie detectors and tell our members not to
take them.”

A customs internal affairs policy allows for the collection and sharing of
records on federal applicants and employees, but it doesn’t appear to
permit it when it involves people who have no federal government ties.

The Pentagon, however, said disclosures of personnel records for authorized
law enforcement purposes were permitted, although it didn’t specifically
address the issue of book-buying.

The FBI echoed that reasoning.

“The FBI routinely receives names of individuals from various law
enforcement and criminal justice agencies to check previous
criminal-history data or any other derogatory information that exists in
our records,” bureau spokesman Paul Bresson said, adding, “After processing
the names, we supply our results back to the submitting agency.”

The Air Force’s Office of Special Investigations checked the list “to only
positively identify Air Force personnel,” spokeswoman Linda Card said.
Defense Department policy “requires polygraph technical reports be
maintained for a minimum of 35 years,” she said, without elaborating on
whether the list could be kept that long.

The Pentagon’s inspector general, which also was involved in the database
check, allows for the sharing of personal information of people who aren’t
Defense Department employees “when their activities have directly
threatened the functions, property or personnel of the Department of
Defense.”

Washington attorney Kel McClanahan called that interpretation “quite a
reach” in this instance, because people who buy books on beating lie
detectors aren’t necessarily a threat. Still, suing the government would be
an uphill battle because the Privacy Act of 1974 leaves so much wiggle room
for agencies to collect and share personal data for law enforcement
purposes, said McClanahan, who handles lawsuits alleging privacy violations.

“Even the most extreme cases of overreach like this are virtually
impossible to litigate because of a poorly written law from 1974,”
McClanahan said. “This is merely a symptom of the problem.”



*© 2013 McClatchy-Tribune Information Services. Truthout has licensed this
content. It may not be reproduced by any other source and is not covered by
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