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Privacy and Homeland Security Research Paper

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Updated: Aug 20th, 2019

Introduction

Privacy of individuals is an issue of concern. This confidentiality is guaranteed under the Privacy Act of 1974, 5 USC 552a. Provisions of privacy of citizens guarantee every individual that his or her personal identification information should not be collected without legal authority.

However, the Department of Homeland Security (DHS) along with policies and technology, are violating people’s right to privacy. The information collected about an individual by the federal government and its authorities should only be done with legal authorization. The Department of Homeland Security has gone ahead to maintain this information in a way that allows its access by unauthorized persons, groups, or institutions.

In the common law, any person who is aggrieved by one who illegally intrudes into his or her privacy discloses any personal information, or does false publication about people’s names can initiate a lawsuit. No one should be compelled to give his or her private information unless under the authority of the law in case of investigations.

The Department of Homeland Security is charged with the responsibility of providing mechanisms to ensure security to all Americans. However, the need to ensure intelligence makes the department endeavor to collect personal information in diverse ways. As various agencies of the DHS collect information, privacy Acts require the department to provide that there is authority, purpose, routine, and disclosure regulation.

There have been controversies about the way Homeland Security officers collect information from citizens. Various quarters have risen complains that the department collects Personally Identifiable Information (PII) without legal authority. The department has also been accused of illegal disclosure of personal information.

Therefore, this research proves that if privacy is subverted, with the DHS practices continuing to be under the umbrella of safety, civil rights will continue to diminish until they are non-existent. To support this thesis statement, the report will rely highly on the Privacy Act of 1974, the US Constitution, the Patriot Act, the National Defense Authorization Act, department policies and memorandums, scholarly journals and law reviews, E-Government Act of 2002, and the Federal Records Act among others.

The findings will be useful in enhancing the application of contract laws since they reveal the instances when Personally Identifiable Information (PII) can be collected, revealed, or shared.

Research Questions

This paper seeks to address the following questions:

  1. Why is the Department of Homeland Security violating citizens’ constitutional rights in exchange for protection?
  2. Should the willingness to provide personally identifiable information (PII) be voluntary or mandatory by law?

Hypothesis

Based on the above research questions that have been raised on matters of privacy and homeland security, the paper hypothesizes that the United States citizens are willing to give up their right to privacy in the name of security. The willingness to provide personally identifiable information (PII) should be made voluntary by amending various US Acts on confidentiality.

Review of Literature

There is a wide range of theoretical and conceptual literature on the issue of privacy and homeland security. The security of the federation of the United States of America is the most critical issue on matters of national interest. The conceptual framework derives its force from the fourth amendment, which gives people the right to be free of any unwarranted search as Marc reveals1.

Also, the fourteenth amendment gives them the right to due process. According to Jacob,the Harvard Law Review of 1890 provided the theoretical basis of the right to privacy”2, which has been cited by many books and courts. Several former presidents of the United States of America have been assassinated in the past. Moreover, the September 2001 attack on the World Trade Center by terrorists caught the country off guard.

Since the September 11 attack, the homeland security has intensified its security plans, as addressed in the National Defense Authorization Act. According to William, the need to ensure the privacy of citizens resulted in the “formation of the privacy office in the Department of Homeland Security”3.

Under the Privacy Act of 1974, the Department of Homeland Security is charged with the responsibility of protecting the privacy of all Americans. However, transparency in the Department of Homeland Security is also guaranteed under various Acts. William notes that transparency regulates the adoption of different privacy rules in planning matters of security4.

It also ensures that the technology adopted by various institutions, including the Department of Homeland Security, adheres to privacy regulations. The need for transparency recommends the Department of Homeland Security take fair information Practice principles (FIPPs) in its endeavor to ensure the privacy of citizens. The federal laws should also regulate the purpose for which personally identifiable information is to be obtained.

Officers of the departments are restricted by the Privacy Act of 1974 from obtaining Personally Identifiable Information from citizens without the right authorization. However, the issue of security threats in the US has forced many Americans to give out much of their personal and/or private information in the name of securing themselves. This Act has tampered with their civil liberty.

Civil liberty violations and privacy issues are emerging. One of the significant problems in matters of privacy is authorization. Paul and Daniel affirm that officers from the homeland security agencies that collect PII must have the right legal authority to carry out the duty5. Article 2 (10) of the Montana constitution directs that unauthorized persons cannot obtain personally identifiable information from any citizen in the United States.

Officers from various defense bureaus must be authorized to obtain private information. Not all officers are allowed to collect personally identifiable information. However, many of them from multiple agencies within the DHS misuse their powers to violate the privacy rights by fostering relationships with the business sector and local law enforcement, as well as, using technology to invade people’s personal lives.

They do not obtain executive order before carrying out duties related to matters of privacy. The Privacy Act 5 USC 552a protects every citizen under investigation by the homeland security by ensuring that all information that such security officers may obtain from him or her is used only for the legally authorized purpose. Besides, homeland security is restricted by the same Act to get only the necessary and related information.

Elizabeth asserts that the need to ensure security and intelligence information should not be a reason to push people into giving out all their details6. Homeland security regulations on how to obtain information are spelled out in the Privacy Act of 1974, for example, the Privacy Act 1974, 5 USC, 552a (e) (3).

All investigative bodies and agencies that seek intelligence information from various individuals are required by law to provide such individuals with the Privacy Act Statement. Collection of PII from an individual without his or her consent and/or the provision of the Privacy Act Statement is considered illegal.

In fact, even when the homeland security wants to collect information for other purposes other than for storage, the Privacy Act statement must be issued to the respondent. The need to obtain such documents like the Privacy Act Statement has made many security agencies associate the regulations with obstacles towards speedy and free access to intelligence information.

According to Jacob, many quarters of homeland security argue that homeland security officers should be allowed to access personal information from any individual without warning or consent7. The debate behind this school of thought is that as the security officers prepare the documents and/or issue them to the alleged criminals, the criminals are able to escape or adjust the information, hence tampering with the justice process.

Privacy Acts have, therefore, been associated with obstruction of intelligence in the federation. Another essential aspect of matters of privacy and homeland security is the storage of PII by the authorities in the name of security. The privacy Act regulates the disclosure of personal information by homeland security to other individuals or organizations.

According to William, personally identifiable information is supposed to be guarded in the best way possible to ensure that no unauthorized person is able to access it and that no wrong reasons, for instance, giving up some of the Americans’ rights in order to be safe and/or prevent another 9/118. Storage and routine management of information are also regulated by the Privacy Act.

Not every person who works in homeland security can be trusted with private information. The persons on whom privacy information can be disclosed is also regulated by statutes such as Shine the Light Law (2005) SB 27 and CA Civil Code 1798.83). Such persons are adjusted based on whether they are within the homeland security department and/or the purpose for which they intend to use the information.

The purpose of collecting personally identifiable information is also regulated by the Privacy Act of 1974. Authorization statements that are issued to various security officers are not issued without a crucial purpose. Before authorization to obtain private information is issued by the homeland security, the Department of Homeland Security ensures that it can be able to cite factual leads that warrant investigation of a particular individual.

The purpose for which personally identifiable information is obtained must also be made known to the Americans from whom the information is obtained. According to William, “Article 1, 1 CA SB 1386 of the California law provides that privacy is one of the inalienable rights”9. Therefore, information obtained must not be used for other purposes other than that which was disclosed to the person at the point of receiving it.

The Act also regulates that PII information stored in the homeland security database should be deleted immediately after its use is over. However, one would wonder why the issue of security in the US should be used as a basis to lure Americans into unveiling that which they should keep sealed. Paul and Daniel affirm that proper disclosure of personally identifiable information should be carried out to avoid releasing it to unauthorized persons10.

The ‘Shine the Light’ Law (2005) SB 27, CA Civil Code 1798.83 regulates the disclosure of any private information. Disclosure of personally identifiable information is another issue with privacy and homeland security. Should disclosure of PII be voluntary or mandatory? The Privacy Act of 1974 directs that private information should be obtained in a deliberate manner.

However, the Act gives exceptions that disclosure can be mandatory. A duty to provide information is imposed by the federal statute. Elizabeth asserts that compulsory disclosure of information can also be warranted by an order from the executive11. In addition, the US Constitution and the Patriot Acts also warrant for mandatory disclosure of information by an individual.

Moreover, persons who are required by various statutes to disclose information are liable for punishment by law if they fail to provide such information. Persons who refuse to offer information that is much required by homeland security are denied some of the privileges and benefits guaranteed by the US constitution.

I t is out of such clauses in the Privacy Act that the human rights organizations and human rights activists in America have raised protests. The claim is that obtaining information from any individual through forceful means contravenes the bill of rights.

Elizabeth asserts that proper use of the privacy statutes will be of importance to the contract law12. It will be possible to prevent intrusion of solitude and misuse of powers to intrude into Americans’ private details in the name of heightening their security. Article 2 (10) of the Montana constitution guarantees the right to personal privacy.

Privacy laws will ensure that no agency will be allowed to force its way to another in terms of electronics or even physically. It will also be illegal for homeland security to disclose a private fact. Currently, there have been arguments around disclosure of truthful facts about a person.

Methodology

The research will adopt a descriptive survey method. The study will rely on first-hand data that will be collected through direct interviews on a representative sample of security officers, legal officers, and citizens. An example of 100 security officers from the Department of Homeland Security (DHS), 50 judicial officers practicing in various states of the United States, and 100 citizens of the United States will be used.

250 people will be taken as a good representative sample from the whole population involved in matters of privacy and homeland security. The interviews will be conducted by issuing a questionnaire with both closed and open-ended questions. The resultant data will then be coded and presented in the form of tables and analyzed in graphs.

Data Presentation

Table 1.0 Ways in which Homeland Security interferes with privacy in America

Stakeholders in privacy and homeland security/Factor of privacy Security officers (out of 100) Percentage Legal officers (out of 50) Percentage Citizens (out of 100) Percentage
Unauthorized access to PII 54 54% 40 80% 88 88%
Unexplained Purpose of PII 88 88% 46 92% 90 90%
Illegal disclosure of PII 40 40% 24 48% 30 30%
Mandatory provision of PII 60 60% 45 90% 88% 88%

Graph 1.0 Table 1.0 Ways in which Homeland Security interferes with privacy in America

Homeland Security interferes with privacy in America

Analysis

Table 1.0 indicates various ways in which homeland security interferes with privacy in the name of securing the Americans’ life. From table 1.0, security officers rated access to personally identifiable information without legal authorization at 54%, 80% by licensed practitioners, and 88% by ordinary citizens.

The indication is that security officers who thought that the privacy of individuals was interfered with were the least while most of the citizens believed that unauthorized way of obtaining PII profoundly interfered with their privacy. In the same way, 80% of legal practitioners were for the same idea.

A staggering 88% of the citizens who are the primary victims of a violation of privacy thought that the police threatened their security without authorization in the name of securing them. The implication is that homeland security officers do not obtain legal authority in most cases before intruding into individuals’ privacy by collecting personally identifiable information.

Graph 1.0 also shows that homeland security violates privacy laws by carrying out unexplained purpose searches. Both table 1.0 and figure 1.0 indicate that 88% of the homeland security officers, 92% of the legal officers, and 90% of the ordinary citizens responded that security officers did not explain the purpose of the personally identifiable information that they obtained from the citizens.

An average of 90% of the population sample that the research adopted believed that homeland security violated the Privacy Act of 1974 by obtaining Personally Identifiable Information without explaining its purpose to the suspects. All respondents rated violation of privacy through unexplained investigations above average.

Graph 1.0 further shows that 88% of security officers who carry out the investigations did not find importance in explaining the reason for inquiries to the suspect as William reveals13. Therefore, they violated the terms of the Privacy Act. A higher 90% of the ordinary citizens affirmed that homeland security officers violated their right to privacy through unexplained searches where they were required to provide personally identifiable information.

From graph 1.0, the highest score of 92% was obtained from legal practitioners who responded that they had witnessed violation of privacy laws from officers who did not explain the purpose of investigation to the victims.

able 1.0 also indicates that 40% of homeland security officers, 48% of legal officers, and 30% of the ordinary citizens believed that privacy rights in America were being violated by homeland security by disclosure of personally identifiable information. Graph 1.0 shows that all the ratings of privacy violation by homeland security through exposure were below average.

In fact, the ordinary civilians rated it at a staggering 30%, with security officers rating it as low as 40% while lawyers rated it at 48%. The average rating of violation of privacy through disclosure was at 39%. We can interpret that violation of privacy rights through disclosure of PII was below average in America.

From table 1.0, it is clear that 60% of the homeland security officers responded that privacy rights of American might have been violated in cases of mandatory provision of PII. 90% of the legal practitioners thought that the privacy of individuals was violated through the fundamental ways of obtaining PII.

88% of the civilians also responded that violation of privacy was enhanced through effective methods of obtaining personally identifiable information. An average of 79% of the population believed that the mandatory provision of PII was one of the prominent ways of violating privacy in America. It is therefore clear from graph 1.0 that the privacy rights of American citizens are being violated through the mandatory provision of PII, which is provided for in the 1974 Privacy Act.

The claim is that the violation is legal since it is provided for by the Privacy Act itself. It is therefore recommended that the Act be amended to abolish mandatory provision of PII, failure to which civilians will be punished by law.

Table 2.0 Exchanging privacy with protection

Opinion/stakeholder Yes Percentage No Percentage Indifferent Percentage
Security officers (out of 100) 4 4% 92 92% 4 4%
Legal officers (out of 50) 40 40% 50 50% 10 10%
Ordinary citizens (out of 100) 20 20% 76 76% 4 4%

Graph 2.0 Privacy and security: not interchangeable

Privacy and security: not interchangeable

Table 2.0 and graph 2.0 verify the claims of whether security matters should be used as a basis of tampering with people’s privacy. From graph 2.0, we see that 4% of security officers, 40% of legal officers, and 20% of civilians (an average of 51%) believed that privacy should not be exchanged with security. Intimacy does not hinder the security apparatus from obtaining intelligence information.

Therefore, Americans should not give out their details in exchange for security. This may be attributed to the fact that unless the security apparatus obtains authorization to obtain PII, they should not investigate a suspect. The time taken to get approval does not interfere with the quality of evidence that the intelligence can gather, hence refuting the claim that lack of some private details obstructs security intelligence.

Approval by an average of 51% of the population can be interpreted that privacy laws do not obstruct the process of obtaining intelligence security information. Therefore, officers should not just abuse their mandates by interfering with the privacy of people by seeking unnecessary personal details.

Moreover, graph 2.0 shows that 92% of security officers, 50% of legal practitioners, and 76% of civilians were opposed to the idea of obstruction of security by privacy laws. An average of 43% of the population did not believe that privacy hinders security.

We can deduce that there was no considerable obstruction of security by privacy laws since the rating under this question was below average. Another 4% of security officers, 10% of legal officers, and 4% of civilians were indifferent of the issue of privacy and homeland security. This was an average of 5% of the population.

Conclusion

The research was set to investigate the issue of privacy and homeland security. The research hypothesized that the DHS uses and/or abuses policies and technology to invade peoples’ private lives and personal privacy. Through primary research, the researchers realized that there was considerable truth in this hypothesis since the above average population in America affirmed this idea.

As such, the willingness to provide personally identifiable information (PII) should be made voluntary by the amendment of various Acts on privacy. The research also upheld the hypothesis since the analysis of data indicated that the current Privacy Act of 1974 allowed violation of privacy under the disguise of mandatory provision of information.

The fact that an officer had authorization allowed him or her to use punishment and deprivation of rights and privileges to obtain PII from a civilian. The research, therefore, concludes that the Act should be amended to embrace full privacy under the first amendment and the 19th amendment of the American law, which positions privacy as an inalienable human right.

References

Elizabeth Uzelae, Reviving the Privacy Protection Act of 1980, 107 Northwestern University L. Rev. 1437 (2013).

Jacob Strahilevitz, Toward A Positive Theory of Privacy Law, 126 Harvard L. Rev. 2010 (2013).

Marc Blitz, The Fourth Amendment Future of Public Surveillance: Remote Recording and other searches in Public Space, 21 American University L. Rev. 63 (2013).

Paul Schwartz, and Daniel Solove, The PII Problem: Privacy and A New Concept of Personally Identifiable Information, 86 New York University L. Rev. 1814 (2011).

William Mitchell, National Security: Part I: Five Questions on National Security Law: Responses to the Five Questions, 38 Wm. Mitchell L. Rev. 1564 (2012).

William Prosser, Privacy, 48 California L. Rev. 383 (1960).

Footnotes

1 Marc Blitz, The Fourth Amendment Future of Public Surveillance: Remote Recording and other searches in Public Space, 21 American University L. Rev. 63 (2013)

2 Jacob Strahilevitz, Toward A Positive Theory of Privacy Law, 126 Harvard L. Rev. 2010 (2013), 2010

3 William Prosser, Privacy, 48 California L. Rev. 383 (1960), 383

4 Ibid, 383

5 Paul Schwartz, and Daniel Solove, The PII Problem: Privacy and A New Concept of Personally Identifiable Information, 86 New York University L. Rev. 1814 (2011), 1814

6 Elizabeth Uzelae, Reviving the Privacy Protection Act of 1980, 107 Northwestern University L. Rev. 1437 (2013), 1437

7 Jacob Strahilevitz, Toward A Positive Theory of Privacy Law, 126 Harvard L. Rev. 2010 (2013), 2010

8 William Prosser, Privacy, 48 California L. Rev. 383 (1960), 383

9 William Prosser, Privacy, 48 California L. Rev. 383 (1960), 383

10 Paul Schwartz, and Daniel Solove, The PII Problem: Privacy and A New Concept of Personally Identifiable Information, 86 New York University L. Rev. 1814 (2011), 1814

11 Elizabeth Uzelae, Reviving the Privacy Protection Act of 1980, 107 Northwestern University L. Rev. 1437 (2013)

12 Elizabeth Uzelae, Reviving the Privacy Protection Act of 1980, 107 Northwestern University L. Rev. 1437 (2013), 1437

13 William Mitchell, National Security: Part I: Five Questions on National Security Law: Responses to the Five Questions, 38 Wm. Mitchell L. Rev. 1564 (2012)

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