The Politics of Privacy

In the aftermath of Hurricane Katrina, various members of Congress screamed long and loud about the federal government's slow and ineffectual response. Now, some of those same politicians are threatening reforms aimed at improving future response efforts, possibly setting the stage for another debacle.

At issue are Congressional efforts to kill the Department of Homeland Security's domestic satellite surveillance system, also known as the National Applications Office. Established after the Katrina disaster in 2005, the applications branch is supposed to give federal, state and local officials wide access to overhead imagery, improving the response to natural calamities and other domestic security operations.

Why is that capability so critical? In the days that followed Katrina, military officials and federal disaster managers found there was no existing mechanism for quickly declassifying satellite imagery, then transmitting it (in a timely manner) to on-site FEMA responders and other relief organizations.

I know--I was there. Working as a contractor for an intelligence production center, I was tasked to contact FEMA headquarters and confirm their receipt of overhead data. I quickly discovered that, in those days, the agency's satellite office consisted of one, harried geospatial specialist, trying to navigate the alphabet of intelligence agencies and military commands on his own. He quickly confirmed that FEMA wasn't receiving any type of overhead information, despite on-going coverage by platforms that ranged from spy satellites, to U-2 spy planes.

Over the days and weeks that followed, scores of military personnel, intelligence specialists and disaster mangers worked to knock down the organizational and classification "stovepipes" that impeded--or, in some cases--prevented the flow of needed information. After the initial crisis passed, there were follow-on meetings and conferences, aimed at institutionalizing the reforms.

Held at locations ranging from Washington, D.C., to Colorado, the various forums had a simple goal--establishing procedures that would guarantee the flow of needed data during future domestic emergencies, and alleviate the logjams that followed Katrina. Meanwhile, FEMA's bureaucratic parent (DHS) took the important step of establishing and funding a satellite office, creating a permanent structure to handle imagery support and related matters.

Now, key members of the U.S. House of Representatives are threatening to shut down the satellite program, claiming that DHS hasn't "created legal safeguards to ensure that the office won't be used for domestic spying."

Leading the charge, The Wall Street Journal Reports, is Mississippi Congressman Bennie Thompson, Chairman of the House Homeland Security Committee.

Recent classified briefings on the program “did not allay any of our concerns,” said House Homeland Security Committee Chairman Bennie G. Thompson, a Mississippi Democrat. In a letter to Homeland Security Secretary Michael Chertoff on Monday, written with two colleagues, he wrote: “Should you proceed with the [program] without addressing our concerns, we will take appropriate steps to discontinue it.”

[snip]

Rep. Thompson, along with Democratic Reps. Jane Harman of California and Christopher P. Carney of Pennsylvania, wrote to Mr. Chertoff to ask he stop further work until he addresses their concerns. “We are disappointed by [the department’s] continuing pattern of putting the cart before the horse,” they wrote.

Rep. Thompson said he wants to see, in writing, how existing laws will be applied to safeguard civil liberties and privacy. The charter describes at what points in the process lawyers will evaluate the legality of a request for data from the office, but it doesn’t explain how they will make their determinations.

According to Journal reporter Siobhan Gorman, the clash is merely the latest between House Democrats and DHS over the privacy issue.

The plan ran into resistance on Capitol Hill shortly after it was announced in August, as lawmakers asked for a legal framework and details of how the program would operate to ensure Americans’ privacy. Homeland officials promised not to begin the program until they answered lawmakers’ concerns.

For months, the department worked on a document it called the new program’s charter. That document got hung up within the administration last winter because agencies, including the Director of National Intelligence, expressed concerns that it did not untangle legal issues such as how to ensure that state and local privacy guidelines were followed. Plans to provide imagery from the satellite program to state and local law-enforcement officials have been put on hold until legal and privacy issues are resolved.

The charter creates a working group to handle policy and legal issues and lists which privacy-related laws will govern the work of the new spy satellite office. It also clarifies that the satellites won’t be used to intercept communications.

Democratic lawmakers said the charter doesn’t address the requirements they have written into law. Congress said it wouldn’t provide money in 2008 for the program until the department certified that it adhered to privacy laws and the Government Accountability Office reviewed it. Homeland Security hasn’t yet sent GAO a certification for review.

Mr. Thompson's protests aside, the privacy issue is hardly a show-stopper. The satellite program's charter should be finalized and implemented as soon as possible, with minimal interference from Congress. Having seen much of the domestic imagery products generated in the wake of Katrina, I would say that the privacy concerns are somewhat exaggerated.

Put another way, I didn't see a single product--from overhead platforms and other sources--that presented a serious affront to individual privacy. While such concerns must be addressed, nit-picking over privacy will only slow the future flow of information to those who need it most, state and local leaders, and their disaster managers.

The value of such data cannot be overstated. In the aftermath of a major disaster (like a hurricane), overhead sensors may represent one of the few sources of reliable information. During the days that followed Katrina, other sources were largely unavailable--a problem that may be repeated in future calamities. The loss of FAA radars and control towers limited air operations, including sorties by reconnaissance aircraft. Merely tasking those assets, through existing military channels, was also difficult.

Employment of unmanned aerial vehicles (UAVs) was equally limited, thanks to existing FAA restrictions on drone flights within the CONUS. Additionally, the use of helicopters--and other aircraft--for aerial damage surveys had an impact on other, equally vital operations, including search and rescue. Diverting the single Blackhawk meant a delayed rescue for survivors trapped in flooded homes and other locations.

Against that backdrop, overhead platforms proved invaluable. Measures and Signatures Intelligence (MASINT) sensors offered broad area coverage, showing utility companies where power service had been interrupted. That allowed them to direct crews to the hardest-hit areas, improving efforts to restore electrical service.

Similarly, imagery of key infrastructure highlighted the extensive damage to bridges, roads, oil refineries, public buildings and housing areas, providing some of the earliest--and most comprehensive--assessments of the storm's impact. With that information in hand, relief officials could target their operations more efficiently.

Make no mistake. No one would describe the government's response to Hurricane Katrina as a monumental success--far from it. Mistakes were made (at the federal, state and local level) and the overall pace of relief efforts left much to be desired. But without the support of overhead platforms, the much-criticized response would have been far worse.

Three years later, satellite imagery should be a standard element of disaster relief and other domestic security situations. Past examples clearly show that overhead platforms can provide critical information for such operations, without violating the privacy of American citizens.

Indeed, the requirement to deliver such products at the "unclassified" level means that the full capabilities of overhead systems will not be utilized. That virtually eliminates the chances that such platforms will be used for pin-point spying, aimed at individuals, groups or corporate entities. Moreover, Congress is quite aware of past success stories in domestic operations. That leads some to believe that the so-called privacy concerns are a pretext for political grand-standing.

In the meantime, state and local officials remain cutoff from the imagery program, until those Congressional questions can be fully answered. There's no indication as to how long that might take; after all, the fight over the satellite program's charter has been going on for almost a year.

Someone ought to remind Mr. Thompson that the start of hurricane season is only six weeks away. A lot of disaster officials in Mississippi (and other states) could sure use the overhead data that is currently beyond their reach, thanks to their "concerned" Congressmen and women.