Watchdog group says DHS privacy guidance allows researchers to break the law

The Homeland Security Department is considering adopting new privacy guidance for Internet-based research that allows investigators to break the law, according to the Electronic Privacy Information Center.

The Homeland Security Department should not be allowed to disregard federal privacy laws when collecting personally-identifiable information on individuals online in the course of researching possible cybersecurity threats, a privacy watchdog group is recommending.

Under DHS’ current privacy guidance under consideration for that type of research, federal analysts would be allowed to ignore federal privacy law in certain cases, Marc Rotenberg, president of the Electronic Privacy Information Center, wrote in a letter to DHS on Feb. 27.

Under the proposed guidelines, “researchers are permitted to make research decisions contrary to law, and are encouraged to ‘accept responsibility’ for their actions,” Rotenberg wrote.


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Rotenberg strongly disagreed with those principles and urged the DHS to reject them, asserting that being allowed to deviate from law is essentially illegal.

“The agencies should not and cannot legally adopt this principle of knowingly violating federal laws for the sake of research,” Rotenberg wrote.

DHS should abide by federal privacy laws rather than adopt the non-binding privacy principles, “which are not enforceable and provide few rights for individuals,” EPIC said in a statement on its website.

DHS officials were not immediately available to comment on Rotenberg’s recommendation.

Rotenberg was responding to DHS’ recent request for comments on the proposed privacy principles contained in a report developed on behalf of the DHS Science & Technology Directorate.

The report, known as the Menlo Report, was prepared by a team of academic and industry experts to identify ethical principles for protecting privacy of individuals while performing information and communication technology research.

The Menlo Report is the latest addition to federal protections for human research subjects’ safety and privacy that have been developed since the 1970s. The protections were developed following several highly-publicized abuses including the Tuskegee Syphilis study in which the U.S. Public Health Service infected African-American men with syphilis and left them untreated so that the disease's effects could be studied.

In 1979, a federal commission published the Belmont Report specifying that in most cases investigators must obtain informed consent from human research subjects. In July 2011, DHS and the Health and Human Services Department issued an advanced notice of proposed rulemaking with additional proposed protections.

In December 2011, the DHS science & technology unit released the Menlo Report with proposed protections for privacy in information and communication technology research.

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