Crackdown that shared Americans’ personal data goes ‘overboard,’ senator says

McClatchy Washington BureauNovember 14, 2013 

US NEWS SCOTUS-KAGAN 61 MCT

Sen. Tom Coburn (R-OK)

RAFAEL SUANES — MCT

— A key congressional defender of the National Security Agency’s spying programs criticized federal officials Thursday for a separate initiative that collected and shared the personal information on thousands of Americans in an attempt to root out untrustworthy federal workers.

Sen. Tom Coburn, R-Okla., said McClatchy’s report on an effort by a Department of Homeland Security agency disturbed him because it appeared to scrutinize people who had no direct ties to the U.S. government and simply had purchased certain books about how to evade lie detector tests.

“This is really concerning to me,” Coburn told Acting Homeland Security Secretary Rand Beers during a hearing on national security threats. “It looks sloppy on its face in terms of the number of people.”

The senator asked for a briefing on the crackdown, saying he would reserve final judgment on it. But, he added, “It looks to be very inappropriate in the expanse. . . . This is way overboard.”

McClatchy reported earlier Thursday that federal officials gathered the information from the customer records of two men who were under criminal investigation for purportedly teaching people how to pass lie detector tests. The officials then distributed a list of 4,904 people – along with many of their Social Security numbers, addresses and professions – to nearly 30 federal agencies, including the Internal Revenue Service, the CIA, the National Security Agency and the Food and Drug Administration.

Although the polygraph-beating techniques are unproven, authorities hoped to find government employees or applicants who might have tried to use them to lie during the tests required for security clearances. Officials with multiple agencies confirmed that they’d checked the names in their databases and planned to retain the list in case any of those named take polygraphs for federal jobs or for future criminal investigations.

It turned out, however, that many people on the list worked outside the federal government and lived across the country. Among the people whose personal details were collected were nurses, firefighters, police officers and private attorneys, McClatchy learned. Also included: a psychologist, a cancer researcher and employees of Rite Aid, Paramount Pictures, the American Red Cross and Georgetown University.

Moreover, many of them had only bought books or DVDs from one of the men being investigated and didn’t receive the one-on-one training that investigators had suspected. In one case, a Washington lawyer was listed even though he’d never contacted the instructors. Dozens of others had wanted to pass a polygraph not for a job but for a personal reason: The test was demanded by spouses who suspected infidelity.

In the wake of earlier revelations on the NSA’s massive surveillance programs, Coburn has been a vocal defender of the agency’s stockpiling of data related to daily telephone and Internet communications of tens of millions of ordinary Americans. However, in raising concerns about the polygraph inquiry during the hearing, he said, “We need to protect ourselves. But we also need to protect the Fourth and First Amendments.”

Legal experts have told McClatchy that the polygraph inquiry demonstrates how Americans have few legal protections from the federal government’s collection and sharing of personal data when it occurs in the name of national security.

The Supreme Court has held that people who voluntarily turn over information to a “third party,” such as the polygraph instructors, have no expectation of privacy under the Fourth Amendment.

While federal authorities acknowledge that the mere teaching of such polygraph-beating techniques is protected by the First Amendment, prosecutors have pursued a novel legal theory in order to seek criminal charges. They assert that instructors who help federal applicants or employees try to hide lies during government polygraph tests are guilty of obstruction.

Federal agencies are under increased pressure to detect security violators, also known as “insider threats,” ever since former NSA contractor Edward Snowden leaked documents earlier this year outlining the agency’s extensive collection of telephone and Internet data.

However, Coburn said that when Americans hear about the polygraph initiative, they’re going to ask, “What did we do wrong?”

“Because we wanted to read a book, now the federal government’s shared all our information?” he said.

One of the reasons for retaining the list of nearly 5,000 names is to help federal agencies detect future security violators, such as the next Snowden. However, it’s unclear how helpful such a list would be in that regard. Snowden underwent two polygraphs for his NSA job but wasn’t found to have used polygraph-beating techniques to pass them, officials familiar with his tests told McClatchy.

Customs and Border Protection, the Department of Homeland Security agency that led the polygraph inquiry, has declined to comment, citing a criminal investigation. The agency did not respond to McClatchy’s request for comment on Coburn’s concerns. Most of the nearly 30 agencies also have refused to comment for McClatchy’s story. A handful defended their overall adherence to privacy policies.

Email: mtaylor(at)mcclatchydc.com or follow: @marisaataylor

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