Statement of Donna Lieberman, on behalf of the New York Civil Liberties Union, before the New York City Council’s Governmental Operations Committee, the Committee on Civil Rights, and the Subcommittee on Immigration regarding The “Access Without Fear” Bill, Int. 326 My name is Donna Lieberman. I am the Executive Director of the New York Civil Liberties Union (NYCLU). The NYCLU has long been dedicated to the protection and enhancement of New Yorkers’ civil rights and civil liberties as articulated in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. I present testimony today, on behalf of the NYCLU, in support of the Access Without Fear bill. All New Yorkers, regardless of immigration status, ethnicity, sexual orientation or disability, must have confidence that when they provide sensitive personal information to an employee of the city—be it a police officer, a domestic violence counselor, a doctor, or a teacher—this information will be used only for the purpose for which it was provided. For many New Yorkers, however, there is a rapidly diminishing sense of confidence that private information turned over to a city employee will remain private. All New Yorkers—including every person in this hearing room—have good reason to question whether sensitive personal information residing in the databases of city agencies is secure. The prosecution of the so-called war on terrorism has led to an extraordinary expansion of the federal government’s authority to capture, compile and disseminate information on how we live. For residents of certain communities America has come to resemble an oppressive security state. In the absence of the protections provided in the Access Without Fear bill, even lawful immigrants will be deterred from seeking city services. And they will avoid the agencies of government despite risks to health and safety. The Access Without Fear bill proposes an important corrective to the government’s inclination to overreach in its pursuit of evidence of threats to the national security. This legislation would prohibit city employees from releasing personal and confidential information about an individual unless required to do so by law. The bill would codify a mayoral directive, first issued by Mayor Edward Koch in 1989, that prohibited city employees from releasing information regarding an individual's immigration status. The new law would extend the scope of this confidentiality policy, barring disclosure of all confidential information obtained by the city -- including, for example, medical history, disability status, sexual orientation, and immigration status. The Access Without Fear law would not overrule misguided federal policy; it could, however, establish that as a matter of local law the confidentiality of personal information will be maintained when it is provided to New York City employees. This policy can afford some greater measure of confidence that New Yorkers, non-citizens in particular, can seek city services without fear of reprisal. The recent history of government antiterrorism initiatives offers compelling reason to support the Access Without Fear bill. Indeed, the Bush administration’s antiterrorism initiatives give credence to concerns that New York City employees may become unwitting informants, transferring private information about New York City residents to overzealous federal agents. I offer for your consideration a summary overview of these troubling developments:
  • Attorney General Ashcroft’s National Security Entry-Exist Registration System requires the registration, fingerprinting, and tracking of more than 130,000 Arab and Muslim immigrant men, age sixteen over. This so-called Special Registration System has sown deep fear and mistrust in immigrant communities. These fears are justified. Hundreds of lawful immigrants were detained without charges when they appeared to register with immigration authorities. In most cases the detainments were due to government ineptitude. Immigration authorities were unable to access databases in order to verify the legality of a registrant’s immigration status. Consider the case of Mohammad Sarfaraz Hussain, an 18-year-old Jamaica High School student who was born in Pakistan but who has lived in New York since the age of seven. In February, after reporting to immigration officials as required by the registration program, he was told he was in the country illegally and that removal proceedings would be started against him immediately. It was only through the intervention of Congressman Gary Ackerman that the prosecution against Mohammad was suspended. Many others in Hussain’s predicament have not been so fortunate.
  • In July 2002, Attorney General Ashcroft announced a new program to recruit millions of Americans to spy for the government. Dubbed “Operation TIPS,” the program would train truckers, utility workers, postal workers, and local cable, gas and electric technicians to report “suspicious activities” to a special hotline. Only after fierce public criticism, including from some conservative Republicans, did the Bush administration agree to scale back the program, although it continues to enlist workers involved in certain key industries.
  • Emboldened by the actions of federal officials, Governor Pataki announced his own Statewide Public Security Tips Hotline in September 2002. The governor’s news release urged the public to report “suspicious activity” to a police hotline manned by the state police and, in New York City, by the NYPD. These “tips” are then cross referenced in local, state, and federal databases for use by the state’s Office of Public Security and by the federal Anti-Terrorism Task Force. The release was silent regarding procedures for purging the database of unfounded reports.
  • A couple of months later, in November 2002, the Pentagon announced plans to launch a program ominously called “Total Information Awareness” (TIA). If allowed to go forward, this initiative would create a global information dragnet, giving the federal government quick and easy access to every government and commercial database in the world, including databases kept by municipal agencies. According to its director, John Poindexter, who was convicted of conspiracy in the Iran-Contra scandal, the goal of TIA is to build “ultra-large-scale” database technologies for the purpose of “treating the world-wide, distributed databases as if they were one centralized database.”
  • More recently, we learned about “Computer Assisted Passenger Screening II,” or the CAPS II program. This federal initiative, a close cousin of Total Information Awareness, would compile information on tens of millions of air travelers -- including travel records, real estate histories, personal associations, credit card and telephone records – in order to create profiles of suspicious persons. CAPS II will create a permanent blacklist of Americans whose right to travel will be seriously curtailed.
Many of these antiterrorism initiatives are based upon a dubious premise: that terrorist activity can be discerned using data mining techniques to identify hidden patterns in huge masses of information. This technique makes sense in the commercial context, where credit card fraud is fairly common. But the same cannot be said about acts of terrorism, which have thankfully been extremely rare. As a means of identifying suspicious behavior, data mining is highly susceptible to error and abuse. Rather than exposing terrorists, data mining techniques are more likely to reveal government security agents’ subjective notions about what constitutes terrorism. Nevertheless, programs like TIA and CAPS II will provide the federal government with super-charged surveillance tools for monitoring the lives of millions of innocent people, New Yorkers included. What this record demonstrates, I believe, is that state and local law makers must take action to protect the fundamental privacy interests of their constituents. The Access Without Fear bill, if enacted into law, will establish an important principle: that while affording proper deference to federal law, the local government of New York City will provide a check on federal and state security initiatives that seek to obtain sensitive personal information when such initiatives are not predicated upon a legitimate security or law-enforcement interest. The NYCLU applauds the leadership of Council Member Hiram Monserrate in introducing this important legislation in the New York City Council. We urge the members of the Council to cast their votes in support of the Access Without Fear bill.