But to give that record a new home, alongside the make and model of your car, every lawsuit filed by or against you, all your recent traffic tickets, the names and ages of your children, and any crime with which you've ever been charged, is to morph it from a benign court document into a crucial component of an unauthorized dossier, Hoofnagle claims.
Lee, of course, doesn't see things EPIC's way. His depiction of ChoicePoint's dossiers leans more toward the FBI's. At a House subcommittee hearing in May, Steve McCraw, assistant director of FBI intelligence, testified that what privacy enthusiasts consider troublesome, law enforcement considers helpful — when used responsibly.
"It's a nice tool. It ... saves valuable lead-time," McCraw said of the Bureau's use of ChoicePoint. "But it has to be done not on a fishing expedition. It's based upon a reason. There has to be a reason why you decided to run somebody through that database."
With only ChoicePoint and the FBI privy to who's being searched and under what circumstances, however, who's to control — or even see — what the government sees?
In August 2002, at a conference for the military's Defense Advanced Research Projects Agency in Anaheim, Calif., retired Adm. John Poindexter laid out his vision for protecting America against the threat of future terrorist acts. Despite his role in the 1980s Iran-Contra scandal, Poindexter had recently been named director of the government's new Total Information Awareness (TIA) project. "We must become much more efficient and more clever in the ways we find new sources of data, mine information from the new and old, generate information, make it available for analysis, convert it to knowledge, and create actionable options," Poindexter said.
Poindexter's ideas and the project he oversaw were among the most radical of the government's proposals in reaction to pre-9-11 intelligence failures. So it should come as no surprise that both Poindexter and TIA quickly raised some serious questions.
When new technologies develop, will politicians and the public have the gusto to ensure that the technologies' uses won't invade privacy? When emotions are cooked by an event of 9-11 magnitude, can one distinguish between the need to jack up intelligence-gathering skills and the temptation to succumb to paranoia that heralds Big Brother?
In the case of TIA, the answer was a firm yes. Congress quashed funding for TIA before it got off the ground. Even after the name was changed to Terrorism Information Awareness, the program couldn't shake the stigma of an Orwellian police state. Soon after the speech in Anaheim, Poindexter resigned as TIA director.
But not all surveillance experiments are as hyperbolically named as Total Information Awareness, nor is it the norm for a mad admiral in the bowels of the Pentagon to be running the lab. The distinction between too little privacy and too much security is seldom so obvious.
The Constitution doesn't guarantee privacy, per se, but it does guarantee the right to be protected against unreasonable searches. Over the years the Supreme Court has equated that right to a guarantee of privacy.
But the meaning of an unreasonable search is in constant flux. In the 1970s, when the Privacy Act was drafted, there could be no unreasonable search carried out with the aid of the Internet. There was no Internet.
Nor did most people consider it a threat to privacy when, in late 2001, Congress passed legislation titled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. In light of the recent attacks on the World Trade Center and the Pentagon, the search powers bestowed by the legislation seemed reasonable enough — unless you were inclined to hold the USA PATRIOT Act next to the Fourth Amendment, squint really hard and imagine the countless forms the act could take.
Among ChoicePoint's top officers, the PATRIOT Act is a reverent topic. "I think that the opportunities that we have, whether they're in ... the PATRIOT Act or other areas are probably clear to us now," COO Douglas Curling told investors in September 2003.
Curling went on to say that ChoicePoint had received $10-million in Homeland Security funds in 2003, on top of $20-million the year before. During a conference call two months earlier, he told financial analysts: "Our success has been, and probably will continue to be, in taking the core competencies of ChoicePoint and finding opportunities to apply those in governmental or Homeland Security initiatives."
With that, Curling may have ushered in a new sort of Total Information Awareness: a centralized government database in corporate database clothing — Poindexter's dream, privatized.
