Sometimes We Need 'Big Brother'

In the 1960s, citizens became aware that intelligence-gathering agencies such as the FBI, CIA and various military intelligence agencies were infiltrating "bad guy" organizations to learn as much as possible about threats to our government and our way of life.

Concerns about government agencies that were overextending their authority led to the passage of legislation aimed at protecting constitutional rights of privacy. These protections were incorporated in the Omnibus Crime Control and Safe Streets Act of 1968 and subsequently led to the Justice Department drafting regulations to implement the law. The key regulation became known as 28 Code of Federal Regulations (CFR), Chapter I, Part 23 -- Criminal Intelligence Systems Operating Policies.

It was determined that political views, religious views, social views, associations and non-criminal activities were not appropriate for inclusion in government files. The American Civil Liberties Union -- the often maligned guardian of our First Amendment rights -- began to adopt policies aimed at exposing threats to constitutional rights of privacy when government was perceived as going too far.

At the same time, John Q. Public was becoming concerned about the rise in crime that was poisoning our society. It was clear that the nation needed an effective criminal intelligence infrastructure providing law enforcement authorities with appropriate information needed to track the activities of suspected criminals to protect the lives and property of ordinary citizens. Visionary leaders in DOJ saw the need to provide the kind of safeguards that would allow the country to move forward without alarming citizens unnecessarily. This became the motivation for 28 CFR Part 23 -- to establish ground rules permitting legitimate aggregation of data about criminal activity without setting off alarms of impropriety.

In cases where state and local governments obtain grant money from federal entities for developing or operating criminal intelligence systems, or where there is the probability that criminal justice information may be transferred, shared or disseminated to the public, it is important for state and local officials to understand the ground rules for computer systems that keep records of suspected criminal activity. It is equally important for private-sector companies to understand the rules because they frequently are responsible for developing systems acquired by the government.

Without conformance to the appropriate laws and regulations, systems developed with the best of intentions often are rejected by federal oversight officials when approval is sought to "plug into" criminal justice networks that exchange information about criminal activity affecting the country. This has resulted in scrapping or severely retrofitting systems that were developed at great expense to the taxpayer, not to mention time lost in making the necessary changes.

DOJ is taking the initiative to educate government and industry with respect to these rules. It is important for state and local government officials and key industry representatives to learn about criminal intelligence systems, interjurisdictional intelligence systems, reasonable suspicion, what constitutes criminal intelligence information, procedures for validating information, purge policies, etc.

If systems developed for criminal intelligence take these concepts into consideration, they will be permitted to interconnect with regional and national systems exchanging information about suspected criminal activity. The public's interests in privacy rights, freedom of association, freedom of speech, freedom of religion and presumption of innocence will be protected. It will further serve to protect government officials and organizations from damaging lawsuits, criminal prosecution, civil fines, damage to reputations, theft of data and illegal intrusion or misuse. The agency and government in general will be protected from the perception that it is acting like a "big brother."

Further information on 28 CFR Part 23 may be obtained from the Office of General Counsel, Office of Justice Programs, DOJ or from its World Wide Web sites at www.ojp.usdoj.gov/ogc or www.iir.com/riss/28cfr23.htm.

Bob Greeves is a principal of the Council for Excellence in Government and a consultant on intergovernmental information technology matters. He can be reached at greeves@tmn.com.

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