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US outlines privacy safeguards – and reveals plans to mine personal data

'Invasive and unprecedented'

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The US Government signalled some willingness this week to address concerns over citizens' privacy, but also launched a scheme which will analyse secret airline passenger risk profiles and keep them for 40 years.

The US Government released guidelines which it says will protect the privacy of US citizens in an era of increasing data collection and information sharing by and between Government bodies.

Congress had previously mandated greater information sharing within government and law enforcement, but there have been concerns that that process undermines individuals' privacy.

The office of the US intelligence chief John Negroponte has now released a set of guidelines for state agencies to follow in dealing with individuals' data.

The guidelines say that Government bodies must ensure that information is being gathered lawfully and that sharing with other bodies is legal. Information can only be shared if it is to do with homeland security, terrorism or law enforcement, they say.

"Protected information should be shared through the Information Sharing Environment (ISE) only if it is terrorism information, homeland security information, or law enforcement information," said the guidelines. "Each agency shall adopt internal policies and procedures requiring it to ensure that the agency’s access to and use of protected information available through the ISE is consistent with the authorized purpose of the ISE."

Meanwhile, however, the US Government began a planned scheme this week which creates risk assessments of airline passengers, assessments that passengers can never see and which are kept on file for 40 years.

A programme has been identified by digital rights group the Electronic Frontier Foundation (EFF) which collects information about individuals, stores it in a database and performs a risk assessment about whether or not the individuals concerned are likely to break US law.

"Personally identifiable information is collected to ensure that people and cargo entering or exiting the United States comply with all applicable US laws," said a privacy impact report on the Automatic Targeting Scheme (ATS). "Relevant data, including personally identifiable information, is necessary for CBP to assess effectively and efficiently the risk and/or threat posed by a person, a conveyance operated by person, or cargo handled by a person, entering or exiting the country."

Information will be gathered and stored on US citizens and foreigners, including EU citizens. A major source of data will be passenger name records (PNR), themselves the subject of data protection controversy in Europe.

The US has agreed a controversial deal with the European Commission to allow airlines to pass 34 pieces of information to US authorities every time an EU citizen flies into the US. The European Parliament opposed the deal, as did privacy activists, in part because US data protection is weaker than that in the EU.

"Generally, data maintained specifically by ATS will be retained for up to forty years," said the ATS privacy report. "Certain data maintained in ATS may be subject to other retention limitations pursuant to applicable arrangements."

European PNS data will not be kept for as long as 40 years, said the report, because of the conditions of its transferral.

The EFF says that the system is invasive and unprecedented. "The government is preparing to give millions of law-abiding citizens 'risk assessment' scores that will follow them throughout their lives," said EFF Senior Counsel David Sobel. "If that wasn't frightening enough, none of us will have the ability to know our own score, or to challenge it. Homeland Security needs to delay the deployment of this system and allow for an informed public debate on this dangerous proposal."

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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