ACLU Calls For Strengthening of DHS Privacy Office, Calls on Department Not to Weaken Position in Wake of O'Connor Kelly's Departure

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Contact: Media@dcaclu.org

WASHINGTON – The American Civil Liberties Union urged the Department of Homeland Security not to weaken the position of Chief Privacy Officer in the wake of the announcement by Nuala O’Connor Kelly today that she is leaving the position, and called for Congress to strengthen the DHS privacy office by giving it greater independence and powers of review.

“O’Connor Kelly has done a commendable job as Homeland Security’s first Chief Privacy Officer considering the limited independence of the job as it was created by Congress,” said Barry Steinhardt, Director of the ACLU’s Technology and Liberty Project. “But even as strong a privacy officer as O’Connor Kelly could only do so much with the powers that she was given. Her replacement must have a dedicated commitment to ensuring DHS’s programs respect a substantial zone of privacy for all Americans, even while they try to enhance our nation’s security.”

The ACLU praised O’Connor Kelly for keeping open the door at Homeland Security for privacy groups, as well as for investigating several glaring privacy breaches that have taken place in the department in the past several years. But the civil liberties group also noted that she lacked the true independence a real privacy officer must have. For example, her reports on privacy breaches had to be cleared by the DHS Secretary, and she lacked the power to demand access to internal documents, instead being forced to rely on voluntary internal compliance with such requests.

“Congress must give the DHS privacy office more teeth so it can serve as a true check and balance in an agency with enormous powers over many areas of Americans’ lives,” said ACLU Legislative Counsel Tim Sparapani. “In particular, Congress should pass the POWER Act,” added Sparapani, referring to legislation proposed in Congress by Rep. Bennie G. Thompson (D-MS) that would significantly enhance the powers of the DHS privacy officer.

Sparapani also cautioned that Homeland Security must not use O’Connor Kelly’s departure as an occasion to weaken the position, or leave it vacant for an extended period of time. “We understand that a truly vigorous and independent privacy officer can be inconvienent for government officials over the short term,” said Sparapani. “But over the long run, vigorous checks and balances will strengthen the Department of Homeland Security by inspiring greater public confidence in DHS programs. Weakening the privacy office will weaken DHS. The entire American system of government is based on that premise, and we hope current Homeland Security officials are wise enough to embrace that truth.”

Ultimately, the ACLU said, as long as the DHS privacy officer reports to the Homeland Security secretary instead of directly to Congress, the position will lack the political independence required of a real privacy officer.

Sparapani called upon Congress to pass legislation creating Chief Privacy Officers with true independence not only at DHS but at the Department of Justice and throughout the government.

“Every other industrialized nation in the world has a government privacy commissioner of some kind, and the United States must be brought up to par with that minimum international standard,” said Steinhardt. “Regardless of how good a privacy official Ms. O’Connor Kelly may have been, unless the position is strengthened structurally, it is only a matter of time before there are privacy abuses at the Department of Homeland Security that dwarf what we’ve seen so far.”