What Price Privacy?

A huge spending bill signed into law by President Bush on Wednesday could create a new hot job-growth sector: chief privacy officers.

Every federal agency, regardless of size or function, will have to hire a chief privacy officer and employ an outside auditing firm biennially to ensure compliance with the nation's privacy laws, according to a little-noticed provision.

Sen. Richard Shelby (R-Alabama) included the language in the $388 billion spending bill.

Currently, only the Department of Homeland Security is required to have a chief privacy officer, though other agencies, including the Internal Revenue Service, have had one for years.

The provision is given added weight by the intelligence reform bill -- awaiting the president's signature -- which says that Congress believes intelligence agencies should have privacy and civil liberties officers.

The officers will be charged with making sure new technologies do not impinge on civil liberties and that federal databases comply with fair information practices.

The job of a privacy officer, according to DHS's chief privacy officer Nuala O'Connor Kelly, is to "further an agency's mission by creating good rules for the responsible use of personal information."

While civil-liberties and open-government advocates have long pushed for high-level privacy officers, some worry that the new provision might actually be too broad.

Law professor Peter Swire, who served as President Clinton's chief counselor for privacy, argues that not all agencies are the same when it comes to privacy.

"Some agencies face major privacy issues, including the Department of Health and Human Services and the Justice Department," Swire said. "Others really only have privacy issues for their own employees. The level of auditing and scrutiny should be much greater for the key agencies."

Outside audits could be enormously helpful in getting agencies to treat privacy as seriously as they do security, according to Ari Schwartz of the Center for Democracy and Technology.

"If privacy experts from the outside come in and say, 'Did you do X, Y and Z?' and those things were not on the agency's list, that's the only way you can improve a privacy project," Schwartz said.

Still, Schwartz hopes the Office of Management and Budget will issue guidelines that direct efforts toward agencies with the most information, so small agencies with little sensitive information will not drown in bureaucracy.

However, the OMB could decide that the provision only applies to the Treasury and Transportation departments, since the provision was included in the funding section devoted to those departments.

Shelby intended the bill to apply to the whole federal government, according to his spokeswoman, Virginia Davis.

The idea is not without its detractors, however.

On Monday, House Government Reform Committee chairman Rep. Tom Davis (R-Virginia) introduced a bill to repeal the provision outright.

Davis says privacy is the purview of chief information officers, which were required under a 2002 computer security law.

The intelligence-overhaul bill also complicates the question of jurisdiction by creating a privacy and civil liberties commission that will oversee the nation's intelligence efforts.

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