Creating the Department of Homeland Security: Consideration of the Administration's Proposal

Subcommittee on Oversight and Investigations
July 9, 2002
09:00 AM
2123 Rayburn House Office Building 

Mr. David L. Sobel
General Counsel
Electronic Privacy Information Center
1718 Connecticut Avenue, NW
Suite 200
Washington, DC, 20009

Statement  

Mr. Chairman and Members of the Subcommittee: 

Thank you for providing me with the opportunity to appear before the Subcommittee to discuss the Administration's far-reaching proposed legislation to create a new Department of Homeland Security.  I will discuss the role that the exchange of information plays in protecting our nation's infrastructure and preventing terrorism, and focus on proposals that would, ironically, limit public access to crucial data in the name of "information sharing."  The Electronic Privacy Information Center (EPIC) has a longstanding interest in computer and network security policy and its potential impact on civil liberties, emphasizing full and informed public debate on matters that we all recognize are of critical importance in today's inter-connected world.

My comments will focus primarily on proposals to create a new Freedom of Information Act (FOIA) exemption for information obtained by the Department of Homeland Security concerning infrastructure protection and counter-terrorism efforts.  But I would also like to share with the Subcommittee some general observations that I have made as the debate over "critical infrastructure information" has unfolded over the past few years.  I believe it is essential to understand the broader context in which the FOIA exemption proposal arises. 

· There appears to be a consensus that the government is not obtaining enough information from the private sector on security risks and vulnerabilities that could adversely affect the critical infrastructure.  I hasten to add that citizens - the ones who will suffer the direct consequences of infrastructure failures - are also receiving inadequate information about these vulnerabilities.

· There has not yet been a clear vision articulated defining the government's proper role in securing the infrastructure.  While there has been a great deal of emphasis on finding ways to facilitate the government's receipt of information, it remains unclear just what the government will do with the information it receives.  In fact, many in the private sector advocate an approach that would render the government virtually powerless to correct even the most egregious security flaws.  Despite its ambitious reach, the Administration's homeland security proposal does not clearly define the new Department's role in protecting the infrastructure.

· The private sector's lack of progress on security issues appears to be due to a lack of effective incentives to correct existing problems.  Congress should consider appropriate incentives to spur action, but secrecy and immunity, which form the basis for many of the proposals put forward to date, remove two of the most powerful incentives - openness and liability.  Indeed, many security experts believe that disclosure and potential liability are essential components of any effort to encourage remedial action.[1]

· Rather than seeking ways to hide information, Congress should consider approaches that would make as much information as possible available to the public, consistent with the legitimate interests of the private sector.  This is particularly critical in the context of the new Department, which will assume an unprecedented range of responsibilities involving public safety.  

As indicated, I would like to focus my comments on proposals to limit public access to information concerning critical infrastructure protection.  EPIC is a strong advocate of open government, and has made frequent use of the FOIA to obtain information from the government about a wide range of policy issues, including (in addition to computer security) consumer privacy, electronic surveillance, encryption controls and Internet content regulation.  We firmly believe that public disclosure of this information improves government oversight and accountability.  It also helps ensure that the public is fully informed about the activities of government. 

I have personally been involved with FOIA issues for more than twenty years and have handled information requests on behalf of a wide range of requesters.  In 1982, I assisted in the preparation of a publication titled Former Secrets, which documented 500 instances in which information released under the FOIA served the public interest.  I am convinced that an updated version of that publication would today yield thousands of examples of the benefits we all derive from the public access law that has served as a model for other nations around the world.

EPIC and other members of the FOIA requester community have, for the past several years, voiced concerns about various proposals to create a broad new FOIA exemption, such as those contained in the Cyber Security Information Act (H.R. 2435) and the Critical Infrastructure Information Security Act (S. 1456), for information relating to security flaws and other vulnerabilities in our critical infrastructures.  Section 204 of the Administration's proposed legislation, as I will discuss in more detail, contains an exemption provision that appears to be even more far-reaching than those previously proposed.  We collectively believe these exemption proposals are fundamentally inconsistent with the basic premise of the FOIA, which, as the Supreme Court has recognized, is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed."[2]  To accomplish that end, "[d]isclosure, not secrecy, is the dominant objective of the Act."[3]

It is clear that, as we simultaneously move further into the electronic age and confront the risks of terrorism, the federal government increasingly will focus on the protection of critical infrastructures.  It is equally apparent that government policy in this emerging field will become a matter of increased public interest and debate.  The proposal to create a vast Department of Homeland Security raises that debate to a new level of urgency.  While reasonable observers can disagree over the merits of specific initiatives, I believe we all agree that infrastructure protection and counter-terrorism activities raise significant public policy issues that deserve full and informed public discussion.

The issue is perhaps best illustrated by examining the latest iteration of the "critical infrastructure information" exemption approach - Section 204 of the Administration's proposed Homeland Security Act.  In what is surely among the most far-reaching one-sentence statutory provisions ever drafted, Section 204 provides:

Information provided voluntarily by non-Federal entities or individuals that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism and is or has been in the possession of the Department [of Homeland Security] shall not be subject to [the FOIA].

 It should be noted that this provision would conceal from public scrutiny a major component of the Department's statutory mission - the information analysis and infrastructure protection functions set forth in Title II of the Administration's proposed legislation.  Indeed, "information analysis and infrastructure protection" is the first of the Department's "primary responsibilities" enumerated in Section 101(b)(2).

Section 204 would cast a shroud of secrecy over one of the Department's critical functions, removing any semblance of meaningful public accountability.  The tragic events of September 11th illustrate the importance of such accountability mechanisms;  the Congress, the media and the public are currently engaged in an examination of possible failures of intelligence or analysis that may have contributed to the tragedy.  Indeed, the legislation we are discussing today is a direct outgrowth of that review process and public debate.  If Section 204, or a similar secrecy provision, is enacted, the news media and the public will be unable to hold the new Department accountable should it fail to make effective use of information it obtains.   "What did DHS know and when did it know it?" is a question that will go unanswered.  Such insulation from accountability is clearly the wrong way to go as we seek to create an effective new entity.

While Section 204 is, in my view, exceedingly broad, I would urge the Subcommittee to approach more circumscribed exemption proposals with skepticism as well.  Any new exemption, unless extremely limited, is likely to remove important information from public view and restrict public oversight of critical government operations.  And, perhaps most importantly, any new exemption designed to protect voluntarily-submitted private sector information is simply not needed.

It is clear that government activities to protect the infrastructure will be conducted in cooperation with the private sector and, accordingly, will involve extensive sharing of information between the private sector and government.  To facilitate the exchange of information, some have advocated enactment of an automatic, wholesale exemption from the FOIA for any information concerning potential vulnerabilities to the infrastructure that may be provided by a private party to a federal agency.  Given the breadth of the proposed definitions of the categories of information to be exempted, I believe such an exemption would likely hide from the public essential information about critically important - and potentially controversial - government activities undertaken in partnership with the private sector.  It could also adversely impact the public's right to know about unsafe practices engaged in by the private operators of nuclear power plants, water systems, chemical plants, oil refineries, and other facilities that can pose risks to public health and safety.  In short, critical infrastructure protection is an issue of concern not just for the government and industry, but also for the public - particularly the local communities in which these facilities are located.

If the history of the FOIA is any guide, a new exemption would likely result in years of litigation as the courts are called upon to interpret its scope.  The potential for protracted litigation brings me to what I believe is the most critical point for the Subcommittee to consider, which is the need for a new "critical infrastructure" FOIA exemption.  FOIA caselaw developed over the past quarter-century makes it clear that existing exemptions contained in the Act provide adequate protection against harmful disclosures of the type of information we are discussing.  For example, information concerning the software vulnerabilities of classified computer systems used by the government and by defense contractors is already exempt under FOIA Exemption 1.  A broad range of information collected for law enforcement purposes may be (and routinely is) withheld under Exemption 7.  Most significantly, Exemption 4, which protects against disclosures of trade secrets and confidential information, also provides extensive protection from harmful disclosures.  Because I believe that Exemption 4 extends to virtually all of the "critical infrastructure" material that properly could be withheld from disclosure, I would like to discuss briefly the caselaw that has developed in that area.

For information to come within the scope of Exemption 4, it must be shown that the information is (A) a trade secret, or (B) information which is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential.[4]  The latter category of information (commercial information that is privileged or confidential) is directly relevant to the issue before the Subcommittee.  Commercial or financial information is deemed to be confidential "if disclosure of the information is likely to have either of the following effects: (1) to impair the government's ability to obtain the necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained."[5]  The new FOIA exemption that has been proposed seeks to ensure that the government is able to obtain critical infrastructure information from the private sector on a voluntary basis, a concern which comes within the purview of Exemption 4's "impairment" prong.  The courts have liberally construed "impairment," finding that where information is voluntarily submitted to a government agency, it is exempt from disclosure if the submitter can show that it does not customarily release the information to the public.[6]  In essence, the courts defer to the wishes of the private sector submitter and protect the confidentiality of information that the submitter does not itself make public.

In addition to the protections for private sector submitters contained in FOIA Exemption 4 and the relevant caselaw, agency regulations seek to ensure that protected data is not improperly disclosed.  Under the provisions of Executive Order 12600 (Predisclosure Notification Procedures for Confidential Commercial Information) issued by President Reagan in 1987, each federal agency is required to establish procedures to notify submitters of records "that arguably contain material exempt from release under Exemption 4" when the material is requested under the FOIA and the agency determines that disclosure might be required.  The submitter is then provided an opportunity to submit objections to the proposed release.  The protections available to private sector submitters do not end there; if the agency determines to release data over the objections of the submitter, the courts will entertain a "reverse FOIA" suit to consider the confidentiality rights of the submitter.[7]

In light of the substantial protections against harmful disclosure provided by FOIA Exemption 4 and the caselaw interpreting it, I believe that any claimed private sector reticence to share important data with the government grows out of, at best, a misperception of current law.  The existing protections for confidential private sector information have been cited repeatedly over the past two years by those of us who believe that a new FOIA exemption is unwarranted.  In response, exemption proponents have not come forward with any response other than the claim that the FOIA creates a "perceived" barrier to information sharing.[8]  They have not cited a single instance in which a federal agency has disclosed voluntarily submitted data against the express wishes of an industry submitter.  Nor have they provided a single hypothetical example of voluntarily submitted "critical infrastructure" information that would not fall within the broad protection of Exemption 4.

Frankly, many in the FOIA requester community believe that Exemption 4, as judicially construed, shields far too much important data from public disclosure.  As such, it is troubling to hear some in the Administration and the private sector argue for an even greater degree of secrecy for information concerning vulnerabilities in the critical infrastructure.  As I have noted, shrouding this information in absolute secrecy will remove a powerful incentive for remedial action and might actually exacerbate security problems.  A blanket exemption for information revealing the existence of potentially dangerous vulnerabilities will protect the negligent as well as the diligent.  It is difficult to see how such an approach advances our common goal of ensuring a robust and secure infrastructure.

It should not go unnoticed that we are discussing the desire of private companies to keep secret potentially embarrassing information at a time when the disclosure practices of many in the business world are being scrutinized.  If a company is willing to fudge its financial numbers to maintain its stock price, what assurance would we have that it was not hiding behind a "critical infrastructure" FOIA exemption in order to conceal gross negligence in its maintenance and operation of a chemical plant or a transportation system?

In summary, the Freedom of Information Act has worked extremely well over the last 36 years, ensuring public access to important information while protecting against specific harms that could result from certain disclosures.  After monitoring the development of critical infrastructure protection policy for the last several years, I have heard no scenario put forth that would result in the detrimental disclosure of information under the current provisions of the FOIA.  Overly broad new exemptions could, however, adversely impact the public's right to oversee important and far-reaching governmental functions and remove incentives for remedial private sector action.  I urge the Subcommittee and the Congress to preserve the public's fundamental right to know as it considers the establishment of a Department of Homeland Security.

David L. Sobel is General Counsel of the Electronic Privacy Information Center in Washington, DC, a non-profit research organization that examines the privacy and civil liberties implications of computer networks, the Internet and other communications media. He has litigated numerous cases under the Freedom of Information Act (FOIA) seeking the disclosure of government documents on privacy policy, including electronic surveillance and encryption controls.   Among his recent cases are those involving the Digital Signature Standard, the Clipper Chip and the FBI's Carnivore Internet surveillance system.

Mr. Sobel has a longstanding interest in civil liberties and information access issues and has written and lectured on these issues frequently since 1981.  He was formerly counsel to the National Security Archive, and his FOIA clients have included Coretta Scott King, former Ambassador Kenneth Rush, the Nation magazine and ABC News.

Mr. Sobel is a graduate of the University of Michigan and the University of Florida College of Law.  He is a member of the Bars of Florida, the District of Columbia, the U.S. Supreme Court and several federal Courts of Appeals.

Disclosure

Neither Mr. Sobel nor the Electronic Privacy Information Center has received any federal grants and/or contracts during the current fiscal year or either of the two previous fiscal years.

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