Perspective: Curbing data use is key to reining in NSA

Proposed legislation and rules focus mostly on curbing data collection activities, not on controlling use of personal data

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Meanwhile, NSA Inspector General George Ellard earlier this year said he found at least 12 substantiated instances where NSA analysts misused data access privileges to spy on spouses, boyfriends and girlfriends. The IG's report also cited multiple violations of rules in place for handling collected data.

Though the report cited relatively few instances, and none especially serious, it does suggest that the NSA doesn't oversee the activities as closely as its leaders claim.

There's also little disclosure on how data collected by the NSA is used by other federal agencies, such as the FBI and the U.S. Department of Homeland Security.

The McClatchy newspaper company's Washington bureau reported this week that data collected by the DHS' Customs and Border Protection agency in connection with a probe of two individuals allegedly teaching others how to beat lie detector tests was shared with nearly 30 federal agencies.

The report said that some 4,900 people in the Internal Revenue Service, the NSA, the CIA, DHS and other agencies accessed the data, which included names, Social Security Numbers, addresses and professions.

Officials from multiple agencies confirmed receiving the list to determine whether any employee had obtained the documents before taking a lie detector test. Many agencies planned to retain the list for future use, the McClatchy report said.

Controlling how NSA-collected data is used should be the most important objective of lawmakers, said Fred Cate, professor of law at the Indiana University Maurer School of Law. Cate filed filed an amicus brief in support of the EPIC Supreme Court petition.

"There will almost always be a legitimate reason to collect sensitive data," said Cate. "The challenge is to ensure that data collected for one purpose is not used for other purposes."

The Supreme Court has repeatedly ruled that the Fourth Amendment applies only to collection of data, not its use, Cate noted. The high court has ruled that "even information that illegally seized by the government can be used for other purposes."

Therefore, the onus is on Congress to impose limits on data use by the NSA and other agencies, he said. Even then, Cate noted, "we apparently will have to trust that the government is following the law."

Steve Vladeck, professor of law and associate Dean for scholarship at the American University Washington College of Law is confident that some use restrictions in bills currently pending before Congress will be adopted.

"Reasonable people can disagree about whether the government should be collecting all of this data and yet still agree that there should be far greater, and harsher, constraints on when the government can actually access or otherwise utilize that data," Vladeck said.

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at @jaivijayan, or subscribe to Jaikumar's RSS feed . His email address is jvijayan@computerworld.com.

Copyright © 2013 IDG Communications, Inc.

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