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John Pistole: “What I Think Is Appropriate in Terms of Privacy”

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This entire interview between TSA Director John Pistole, James Fallows, and Jeffrey Goldberg is worth reading. But I’m particularly interested in what Pistole says about his role in finding the appropriate balance between security and privacy.

James Fallows: I’d like to start with a question both Jeff and I have raised, which is the whole question of the balance between security, on the one hand, and liberty and privacy concerns, on the other. Is it TSA’s job to set that balance? Or how do you think that balance is set?

John Pistole: The way I view it is for TSA to develop the security protocols that afford the best security, while recognizing that there is a balance. The best security would be something way beyond what we’re doing.

Jeffrey Goldberg: The best security would be to just not allow people on planes. That’s perfect security.

Pistole: That’s “risk elimination.” And we’re not in the risk-elimination business, we’re in risk mitigation, informed by the latest intelligence, informed by our friends [in the intelligence agencies], and informed by the results of our covert testing.

Those things inform judgments and actions and then we take that information — I take that information — and then ask the experts how can we address these threats? They come up with different things based on all the information they have, and then they make a recommendation, and then it’s up to me to say, OK, does that exceed what I think is appropriate in terms of privacy?

So that’s my responsibility. To say, does this give us security, without violating something that would be a Fourth Amendment issue? [my emphasis]

According to Pistole, it’s up to him–his responsibility–to determine what the appropriate balance between privacy and security.

Now, I appreciate that, at some level, it is up to him. He’s in charge of TSA and he’s got to make the final decision whether to implement (or discontinue) a controversial scanning technology.

But it’s not up to him.

It’s up to the entities that review counterterrorism techniques for their civil liberties and privacy impact. Specifically it’s up to the Privacy and Civil Liberties Oversight Board, which is mandated by Congress to do the following:

(1) analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and

(2) ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.

The PCLOB never got fully off the ground after it was passed in 2007. More appallingly, Obama hasn’t even nominated anyone to the board.

Absent review by the PCLOB, Department of Homeland Security is required to conduct a Privacy Impact Assessment, which it appears not to have done either. And Pistole should know that these reviews should take place, since Bennie Thompson reminded him of the fact several weeks ago.

In the absence of an Executive branch level Privacy and Civil Liberties Oversight Board that would evaluate decisions such as this, it was crucial that the Department of Homeland Security’s Privacy Officer and Office for Civil Rights and Civil Liberties thoroughly evaluate and publish written assessments on how this decision affects the privacy and civil rights of the traveling public. To date, the Department has not published either a Privacy Impact Assessment (PIA) nor a Civil Liberties Impact Assessment (CLIA) on the enhanced pat down procedures. Without a published PIA or CLIA, we cannot ascertain the extent to which TSA has considered how these procedures should be implemented with respect to certain populations such as children, people with disabilities, and the elderly. By not issuing these assessments, the traveling public has no assurance that these procedures have been thoroughly evaluated for constitutionality.

There is a means to conduct an independent review of where the line between privacy and security is–or at least there’s supposed to be, even if Obama refuses to fulfill that mandate.

I’m sure it’s nice for Obama and Pistole that, rather than having an independent board review gate grope before it gets implemented, Pistole just took it on himself to decide whether it’s constitutional and appropriate or not.

But that’s not how it’s supposed to work.

More Obama Administration Civil Liberties Neglect

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In New York, the cops are getting frisky with minorities (suspect classes under the equal protection clause):

From 2004 through 2009, in a policy that has gotten completely out of control, New York City police officers stopped people on the street and checked them out nearly three million times, frisking and otherwise humiliating many of them.

Upward of 90 percent of the people stopped are completely innocent of any wrongdoing. And yet the New York Police Department is compounding this intolerable indignity by compiling an enormous and permanent computerized database of these encounters between innocent New Yorkers and the police.

Not only are most of the people innocent, but a vast majority are either black or Hispanic. There is no defense for this policy. It’s a gruesome, racist practice that should offend all New Yorkers, and it should cease.

Police Department statistics show that 2,798,461 stops were made in that six-year period. In 2,467,150 of those instances, the people stopped had done nothing wrong. That’s 88.2 percent of all stops over six years. Black people were stopped during that period a staggering 1,444,559 times. Hispanics accounted for 843,817 of the stops and whites 287,218.
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“They have been collecting the names and all sorts of other information about everybody who is stopped and frisked on the streets,” said Donna Lieberman, the executive director of the New York Civil Liberties Union, which is fighting the department’s stop-and-frisk policy and its compiling of data on people who are innocent. “This is a massive database of innocent, overwhelmingly black and Latino people,” she said.

Bob Herbert is right, it is “a gruesome, racist practice”. Thank god we have a Constitutional law scholar President, expert in civil rights and dedicated to protecting the liberties afforded by them. This is a perfect situation for the President’s Privacy and Civil Liberties Oversight Board!

Oh, wait……..

When President Bush two years ago failed to name members to a federal board to monitor the protection of civil liberties, Democrats and activist groups were duly outraged, seeing it as one more example of his administration’s indifference to the subject.

But more than a year into a new presidency, the Privacy and Civil Liberties Oversight Board—created by Congress in 2007—remains as much a cipher under Barack Obama as it was under George W. Bush. The White House has yet to Read more →