The DHS Privacy Office

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Nuala O’Connor Kelly left the DHS privacy office last week. I have mixed reviews of her performance. On the good side, she did not rubber stamp DHS policies. She criticized the TSA, for example, for improperly gathering airline passenger records from Jet Blue Airlines. But on the negative side, she acted more as an internal facet of DHS than as an external overseer. Her role was more akin to an in-house privacy counsel who would advise behind the scenes than to an independent agent.

This wasn’t necessarily O’Connor Kelly’s fault. The DHS privacy office lacks essential powers, like the ability to subpoena documents. It lacks the independence to rebuff the DHS. It lacks any real teeth to enforce sanctions when the DHS violates the law. Although it produces public reports about its activities, the privacy office could do more to ensure greater public accountability for DHS, which often operates in manner that isn’t transparent.

We need a privacy agency, one that has teeth. For a good proposal for such an entity, see Robert Gellman, A Better Way to Approach Privacy Policy in the United States: Establish a Non-Regulatory Privacy Protection Board, 54 Hastings L.J. 1183 (2003). As Gellman notes: “The failure of the United States to have a national privacy agency is, perhaps, the single most important difference in approach to data protection between the United States and most other industrialized countries.”

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