Civil Liberties, Technology Clash at Justice


Civil Liberties, Technology Clash at Justice

By Neil Munro

Michael Carpenter photo

Justice Department's Paul Kendall

The Justice Department is bolstering the nation's 5,000 independent law enforcement authorities with $400 million in federal information technology grants, creating a civil liberties headache and a major oversight problem.

"It is a very, very hot issue now. The Justice Department is deeply concerned" about the need to balance improved information sharing among these state and local authorities with protection of citizens' civil liberties, said Paul Kendall, general counsel at the Office of Justice Programs.

Kendall, chairman of the department's Intelligence Systems Policy Review Board, is trying to establish a group that will oversee the federally funded information technology grants. He also wants to assemble a federal technical group to improve coordination among state and local computer programs.

Kendall is helping organize a Washington conference early next year where federal, state and local officials will meet with technology experts and civil liberties advocates to debate how information technology can be best used while protecting civil liberties.

These civil liberties laws have tied up information technology programs as government officials try to match the technology with privacy rules. One information technology effort in Michigan was stalled for three years, Kendall said.

In some cases, the laws have curbed the use of the latest technology and hindered the development of databases that would allow police to freely swap tips, government officials said.

During the last 18 months, the Justice Department has reviewed and approved roughly $4 billion in federal grants established by Congress to help state and local law enforcement officials track criminals, collect evidence and complete investigations.

Of that amount, $300 million to $500 million is being spent on information technology, Kendall estimated. He and other Justice Department officials say they are surprised that so much of the money is flowing into IT.

"As we give out more and more money to state and local governments, and the cost of equipment goes down, there is a geometric increase in activities and systems development. ... It is difficult to get a handle on just what the money is being spent for," said Kendall.

For example, in 1995 and 1996, Congress set up a $175 million grant fund to help state and local authorities implement the 1994 Violence Against Women Act. When reviewing the grant applications, Justice officials were surprised to see that roughly $52 million of the $175 million is being sought for information technology, said Kendall. "That was astounding," he said.

The department is also giving out grants to link the 5,000 local and state law enforcement organizations with the Regional Intelligence Sharing System. The network helps police contact other police who might have information helpful to their investigations, said David Boyd, director of science and technology for the National Institute of Justice, a research arm of the Justice Department.

"We are seeing quite a bit of money coming down into Virginia." Information technology is "one of the best things that has hit law enforcement in a long time," said Larry Gately, a vice president at Gately Communication Co. Inc., Hampton, Va., which sells radios and computer services to local police forces.

But the Justice Department can't approve every grant application that it might get, because it must ensure that federally funded information technology programs meet civil liberties laws and are not wasteful, Kendall said.

Justice Department officials must also minimize duplication when handing out the grants, said Kendall. "We're concerned with what people are doing with information technology dollars to ensure there is no waste. ... Resources are still not sufficient to satisfy all the needs."

"What we ultimately want to provide is some kind of technical assistance," he said, noting that federal officials must take care not to push their way into state and local concerns.

"It is a very delicate line. ... We are trying, without imposing a mandate on state and local government, to figure out a way to best utilize the resources," he said.

To help solve this problem, the NIJ requires that all state and local programs built with NIJ's $60 million in grant money be designed to link to the RISS or to the FBI's Combined DNA Index System, said Boyd.

The clash between new technology and civil liberties laws is also generating a dilemma for the department.

The laws bar local law enforcement jurisdictions from freely combining data, names and facts in their law enforcement databases, said Kendall. The relevant rule, named "Title 28 of the Code of Federal Regulation, Part 23," or 28CFR part 23, requires that law enforcement authorities store data about a person in law enforcement databases only if there is a reasonable suspicion of criminal activity by that person and the data is relevant. Law enforcement officials must also exclude the names of victims and witnesses from the databases, as well as unneeded information about suspects' political views, activities and associations, he said. Moreover, the stored data can only be shared with law enforcement officials who have a need to know the data, he said.

In practice, this means that federally funded law enforcement networks must use good information security technology and must be distinct from other state databases, including those that store court records or driver's license data, he said.

"If you don't comply with that, your system won't get funded," said Kendall. 28CFR part 23 is part of a September 1993 regulation titled "Criminal Intelligence Systems Operating Policies."

But while this rule is vital to prevent people from being unfairly entangled in law enforcement investigations, it also hinders routine information sharing among cops, said Kendall.

When the 28CFR part 23 rule was drafted, officials did not foresee wide use of electronic bulletin boards, Web browsers or e-mail, he said. If the technology can be designed to protect civil liberties and adhere to federal regulations, police could use it to share tips, help identify suspects and thwart crime, he said.

This conflict has forced the Justice Department to make new judgments, said Kendall. For example, the department approved one system designed to let police post tips and requests for information about suspects on a central bulletin board that can be viewed by many local police, he said. In a compromise, the Justice Department required that the information be pulled off the bulletin board after 90 days, he said.

To help law enforcement make the best use of the technology, 28CFR part 23 may need some modification, he suggested. "The rules that exist need to be reviewed to take into account technological development, he said.

David Burnett photo

Attorney General Janet Reno

That's one of the topics that will be debated at the conference, he said. "People across the political spectrum unite in their concern that these systems do not abridge civil liberties. ... [Attorney General] Janet Reno has expressed repeatedly her concern about this issue," he said.

However, federal rules and curbs on information sharing are a low priority for overburdened local law enforcement officials, Gately said. "Except for the very large cities, most of the smaller police departments have all they can do just to try to hook into their [own] data system," he said.

The technology "is certainly a very powerful tool. ... The problem is that it is not just criminal and law enforcement data that we are talking about," said James Lucier, an analyst with Americans for Tax Reform, a Washington-based group that promotes libertarian policies.

For example, states are collecting data on children via the schools, and on people via the state-sponsored health networks, he said. Unless privacy-protection rules are drafted and enforced, this data may become available to law enforcement officials, he said.

Estimated Annual Infotech Grants in Selected Programs
Community Oriented Policing Service $100 million per year
Bureau of Justice Assistance $30 million per year
(Supports the Regional Intelligence Sharing System)
Bureau of Justice Statistics $150 million
(Supports "Instant Check" computer network, intended to check for possible criminal records of gun buyers)
Office of Juvenile Justice and Delinquency Prevention $10 million per year
National Institute of Justice $60 million per year
Corrections Program Office Up to $18 million per year
Violence Against Women Act $52 million for 1996-97, with additional funds dependent on future appropriations
Local Law Enforcement Block Grant Program $50 million per year

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