Statement Of The Center For Democracy & Technology Before The Senate Government Affairs Committee

Summary

E-government proponents have long believed that new technologies in general and the Internet in particular can be used to enhance the way we are governed and the way in which we interact with government. It has been argued that the Internet will be able to reinvigorate the stagnating institutions of our democracy by ushering in a new era of citizen involvement, government transparency and administrative efficiency.

The Center for Democracy and Technology shares this vision. The nature of the Internet, which gives agencies the ability to publish vast amounts of information cheaply and gives citizens an easily accessible way of interacting and transacting with government, means that it holds important promise for the way in which we are governed and the way government operates. CDT recognizes that the Internet will not solve all of the current problems facing representative democracy at a stroke, or even that it will solve most of the problems, but we believe that the Internet is an important tool in the campaign against citizen apathy, inefficiency and civic disengagement.

In order to meet the demands of Americans, we will need to provide more information and services online. We believe the E-government Act of 2001 contains a number of important steps towards that vision and we applaud its main authors Senators Lieberman and Burns for moving the issue forward.

However, while the bill sets the government on a new course to comprehensively cover an important issue, CDT hopes that this is only the beginning. In particular, we urge the committee to hold much needed hearings examining the state of the Privacy Act. Insuring that America’s strongest provision to protect against the misuse of personal information in Federal government records remains vital in the Internet age.

About CDT

The Center for Democracy and Technology (CDT) is a non-profit public interest organization founded in 1994 to promote democratic values and individual liberties for the digital age. CDT works for practical, real-world solutions that enhance free expression, privacy, universal access and democratic participation. We are guided by our vision of the Internet as a uniquely open, global, decentralized and user-controlled medium. We believe the Internet has unprecedented potential to promote democracy, diversity and human development, by placing powerful information and communications technology in the hands of individuals and communities.

Introduction

The United States used to be thought of as the world leader in the field of e-government. But recently, we have lost this edge to other countries like Singapore and Canada, who have better funded e-government projects. Indeed, Accenture, the consultancy firm, recently ranked America third in its league table of e-government maturity. The company’s end of year report card on US e-government might have read "good, but could try harder."

CDT believes that this bill goes some way towards mitigating the "could try harder" part of the report card. It contains a number of proposals that will improve accountability, transparency and responsiveness and, importantly, lays out a structure for the investigation of the privacy implications of new e-government initiatives.

In summary, the Center for Democracy and Technology believes that the E-Government Act is an important first step towards providing government information and services for the Internet age. However, we cannot stress strongly enough that this is only a first step, we must move forward, constantly striving to reinvent government in ways that are ever more efficient, making government ever more accountable, and, ultimately, serving its customers in the best possible way. In particular, we hope that, in the near future, the committee will address some of the fundamental problems facing the Privacy Act of 1974 in the age of e-government.

E-Democracy

CDT believes that the provisions in the E-Government Act concerned with putting government functions online will reduce the transaction costs of doing business with government, increase transparency and accountability, and, lastly, help to reinvigorate a populace of growing apathy.

Perhaps the most important of these provisions in this bill is that which would require all regulatory agencies to accept filings online and compel them to issue electronic dockets where practical. This is another step towards increasing the efficiency of government transactions. Regulatory agencies are a major consumer and generator of paperwork ­ efforts to decrease this burden on companies are positive. But electronic filing does not just benefit companies, by making the filings more accessible to advocacy workers and the media, they expose firms to scrutiny and help to keep them accountable to their shareholders, their customers and the public at large. Even in the limited trials of online comment periods that we have seen so far, CDT has found that with the proper outreach to public interest and community groups, more individuals participate. For example, the Federal Election Commission last year held an online comment period on the issues of Internet campaigning. CDT worked to build a Web site that helped frame the issues in a way that Internet users could easily file their comments on particularly relevant issues to the Web. In the month before CDT’s campaign, only 25 individuals had filed comments. The week after the web site went up thousands had filed. CDT was only able to do this because the FEC was open about the technology used for filing comments. If the Federal government can insure openness and standardization in the process of online filing, this process can significantly increase the transparency and accountability of government. We believe this initiative to be wholly positive.

The bill would also set in motion an investigation of the way in which the government might implement a single integrated reporting structure. Not only will this measure benefit businesses, but it also opens up exciting new possibilities in the field of e-democracy as integrated government databases create the possibility of better consultation with the public over policy issues.

Electronic government is not just about transacting using the Internet as in the previous example. It is also about the way in which documents are published by agencies. The parts of this bill that seek to modernize the way that Federal Courts publish their data are especially interesting. In particular, Section 205(d), which would mandate the exploration of technology to enable dockets to be linked to filings, are important steps which CDT believes will be replicated in many areas of government. These provisions would enable web surfers to find a case docket, then link electronically from there to a ruling, filing or submission for a case. This would open up the courts to the public, strengthening confidence in the judiciary and boosting transparency.

CDT believes that technologies that allow electronic versions of government documents to link to each other seamlessly will become increasingly important. Indeed, CDT believes that these technologies are already achievable at reasonable cost.

The importance of information is an overarching theme of this bill and the moves to create an integrated government portal are symptomatic of the significance that easy access to government information has for today’s citizens. Indeed, this portal will have to build on the considerable work of firstgov.gov, which is a significant starting point for the collation of government information and services online. CDT has long recognized that successful e-government will require some reorganization of government and its functions around users rather than departments. Plans for an integrated portal are commensurate with that vision. Like the provisions highlighted above, an integrated portal will not just improve government efficiency, but it will strengthen our very democracy as legislatures and agencies make more and more government products available online.

If passed, the bill would also appropriate $10 million for the creation of an online public library that would house electronic versions of items of national significance. The importance of such an institution would be unparalleled ­ it would be the equivalent of building a library the size of the Library of Congress in every small town, homestead and city across the United States. The Online Public Library would be used to house America’s heritage and make it accessible to everyone across the country. At a time when information and access to information are becoming ever more important in our economy, an Online Public Library would be a superb educational resource, providing people with information about our country and our democracy. It would be administered in conjunction with the Smithsonian and the Library of Congress, lending it some of the best institutional back up one could wish for.

But just as e-government presents a number of opportunities, which have been highlighted above, it presents a number of challenges. Permanent historical preservation of data is one such challenge. Much information is now published online only and is never issued on paper ­ were this information not archived in an accessible manner, parts of the US national record, which previously would have been kept in paper format, could be lost forever. This bill would give the Federal CIO the power to set standards for permanent historical preservation of documents. This is particularly significant because of the rapid change at which computer formats change, the rapidly evolving nature of Internet content (with many sites updated several times per day) and because of the lack of a single cataloging standard for Internet documents.

Privacy

Americans have always been concerned with issues of privacy from government and privacy has long been a concern of the online community. While the Privacy Act of 1974 offers some protections, the law has become outdated in the face of current technologies. The E-government act of 2001 is a first step to reassuring users of online government services.

In particular mandatory privacy impact assessments in all government IT projects will be highly beneficial. For instance, if an agency wanted to share information with another agency, this bill would force it to consider whether this amalgamation of data adequately protected the people the agency served. These assessments would be similar to the environmental impact statements that agencies must perform before embarking on projects. These have been successful in making agencies accountable for the decisions with regard to building projects. It is hoped that privacy impact assessments will have similar consequences. CDT understands that these assessments will not force agencies to adopt one standard, however, they will force agencies to act responsibly. CDT believes this provision will ultimately lead to better-designed and more user-oriented government IT projects.

The Center for Democracy and Technology is proud to have been associated with the Platform for Privacy Preferences Project (P3P) since its inception and is delighted that language is included in this bill that mandates Federal agencies to use it (or similar machine readable protocols) on their websites. P3P is a format that makes the complicated Web site privacy policies machine readable and easy to find in new Web browsers. They are then represented in graphical format by the web browser to the user. This makes surfers aware of how much data they are giving away when they surf and tells them what companies will do with it. P3P is important because it represents a compromise between freedom and legislated privacy. Using P3P, surfers will be given a meaningful choice about how much data they disclose and are given fair and comprehensible warning of what it will be used for. As the standard is adopted by government, users will come to expect it on commercial sites, making it the de facto Internet privacy best practice. CDT strongly supports this move.

While these are very small steps to start the federal government in the right direction on privacy, CDT believes that there is still much more to be done. In particular, the Privacy Act needs to be revisited for the Internet age. For example, some of the definitions are well known to be out of sync with the original intentions of the bill. For example:

• The basic definition of "system of records" – While the authors of the Privacy Act attempted to keep the definitions in the law technology neutral, the authors could not have foreseen how database structures would change in the intervening years. The central definition in the Act is the "system of records," limiting the types of databases that are covered to those that search for a specific term that could be personally identifiable. In the ’70s, most databases would have been covered by this definition. Today, however, new, "relational" databases are created that allow information to be retrieved by multiple methods. Therefore, while some databases do not technically fit under the definition, there is the potential for major abuses in the future, where information resources that have been created for one purpose outside of the current Privacy Act context are used for other purposes. On the other hand, opening up the definition of system of records could include far too many databases to be useful and add an extra level of bureaucracy. These issues must be carefully balanced in a new definition.
   
• Definition of the "routine use" exemption – The issue that has caused the most concern over the 26 years of the Privacy Act has been the growing exemptions to the part of the law forbidding personal information from sharing between agencies. Recent Administrations have been increasingly accepting of the "routine use" exemptions, that was supposed to allow agencies the ability to share information with selected others based on the frequency and administrative burden of the project. These exemptions are now so widely used and unchecked that almost every Privacy Act Notice required by the law lists numerous routine uses, often citing uses that are exempt through other means or that seem to be boilerplate language. Clearly, this is not what Congress intended by including this exemption. While several members of Congress have examined this problem, few detailed alternatives have been offered

These are just two of the many difficult issues facing the Privacy Act today. CDT strongly urges the Committee to hold hearings as soon as possible on the future of this important law and begin to look into how to address these fundamental issues.

We thank you for your attention and look forward to any comments or questions from the committee.