The FBI is building a massive database of Americans’ biometric information, including not only fingerprints but also photos for face recognition and iris patterns. The Next Generation Identification (NGI) system also has the capability to store information on tattoos and such things as voice and gait recognition data. And it collects information not just on those convicted of a crime, but also on many people who are just applying for a job, volunteer position, naturalization, or military commission, and others who need to undergo a fingerprint or photo background check. With the construction of such a powerful surveillance tool, and all the potential for abuse that it brings, comes the need for checks and balances of commensurate strength. Yet the FBI appears to be moving in exactly the opposite direction, seeking to exempt itself even from the limited privacy protections that so far exist in law. In particular, the Justice Department last week issued a proposed rulemaking that would exempt the NGI from the protections of the Privacy Act of 1974. The Privacy Act, passed when government agencies were first beginning to store up significant amounts of data on American citizens in computerized databases, was intended to give force of law to some basic fair principles for how data should be handled. In particular, it provides four important commonsense protections that the FBI now proposes to strip away. Today, the ACLU has joined with the Georgetown Law Center on Privacy & Technology and numerous other organizations in asking for more time than the short 30-day period the agency has provided for the public to submit comments on their proposal (the Washington Post has a story on our coalition letter). 1. Data about people must be accurate, timely, and relevant before you judge them on it It doesn’t seem like too much to ask that, as the Privacy Act requires, the FBI maintain records used to make “any determination about any individual” with “such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” But the FBI complains that ensuring fairness in this way is “impossible,” because “seemingly irrelevant or untimely information may acquire new significance when new details are brought to light.” While that might be true, it’s also an argument against throwing out anything, ever. There is no piece of information that cannot gain new relevance in light of subsequent events—that is true now, and it was true when the Privacy Act was passed. Yet Congress clearly directed that government agencies should NOT keep “untimely” or irrelevant information. The law specifically resists the urge to keep everything for all time just in case it might someday prove useful—precisely what the FBI now says it wants to do. And what they keep, they need to make reasonable efforts to ensure is accurate. This, the FBI complains, it cannot do because it gets so much of its information from state and local police. I can see how that would be a difficulty for the FBI—but what about the problem for individuals who are victimized by inaccurate data? Just because inaccurate information about them is circulated among different law enforcement agencies at different levels, are they to have no recourse? The FBI appears eager to escape any lingering burden from the protections of the Privacy Act, but unconcerned that they would create a Kafkaesque nightmare for victims of bad data who cannot get fairness or relief from a circle of unaccountable finger-pointing bureaucracies. It runs against our nation’s values and traditions to make convenience for government agencies more of a priority than fairness to individuals. Unfortunately, we’ve been down this road before; in 2003 the FBI similarly exempted its NCIC database—the nation’s primary criminal-records database—from the Privacy Act. And people have been badly harmed by inaccuracies in that database. We don’t know what the accuracy rates of the NCIC are, but there is longstanding evidence and discussion of very high error rates. A 1986 study for Congress’s Office of Technology Assessment found that only 46% of NCIC records were “complete, accurate and unambiguous,” as were only 26% of identification records. Meanwhile a full 15% of the warrants in the system were found to be erroneous. As the author of that study put it, information systems containing inaccurate, incomplete, or ambiguous information not only violate society’s notion of fairness in dealings with individuals, they also threaten specific due-process guarantees that are afforded by the Constitution and statute. More recently, the National Employment Law Project (NELP) found in 2013 that fully 50% of the FBI’s criminal records fail to include information on the final disposition of a case—such as the fact that a person who was arrested may have been aquitted, or never even charged. About a third of felony arrest
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