Department of Homeland Security

The Department of Homeland Security (DHS) was created on November 25, 2002, by the Homeland Security Act. In the wake of the attacks of September 11, 2001, President Bush established the Office of Homeland Security by executive order. Following congressional calls for the reorganization and refocusing of government agencies to bolster national security, the Office of Homeland Security was supplanted by a full-scale department to be headed by a new secretary of homeland security. After much wrangling between the president and Congress over the scope and the extent of legislative oversight of the new entity, DHS came into being in the largest government reorganization since the 1940s. It subsumed twenty-two existing federal agencies consisting of approximately 180 thousand federal employees, and represents the third largest government department.

The Department of Homeland Security’s mandate is to reduce America’s vulnerability to terrorism, prevent terrorist attacks inside the country, and manage recovery efforts in the event of such an attack. Agencies such as the Immigration and Naturalization Service, the Secret Service, the Federal Emergency Management Administration, the Customs Service, and others were placed under the department’s authority. Former Pennsylvania Governor Tom Ridge was named as the first secretary of homeland security.

A primary aim of the Homeland Security Act is to assist with the collection, analysis, and sharing of intelligence information relating to security threats to the homeland and to enabling DHS to be proactive in forestalling attacks. However, threats to national security inevitably create tensions with the constitutional liberties and freedoms Americans have long cherished. The breadth and nature of DHS’s mandate have generated significant criticism from civil libertarians who argue that the legislation undermines privacy rights and government openness by restricting public access to government information while lowering barriers to the monitoring and interception of electronic communications.

The Freedom of Information Act (FOIA) of 1966 provides a right to the public to have access to information regarding government activities to prevent ‘‘wrongdoing’’ by the federal government; however, section 214 of the Homeland Security Act provides blanket authorization for DHS to withhold certain information relating to national security-related ‘‘critical infrastructure’’ if provided voluntarily by private companies. While supporters contend that such a provision is critical to encouraging the sharing of critical information with the government, critics note that information voluntarily provided to DHS by a nuclear power company related to a nuclear spill could not be shared with other government regulatory agencies or the general public. Section 214, it is contended, significantly undermines the purpose of FOIA.

Section 225 expands the government’s ability to monitor electronic communications absent a judicial warrant. One provision within this section expands the scope of cases in which Internet service providers (ISPs) are shielded from liability for turning over private communications to the government. Although prior statutes went further to protect the privacy of ISP subscribers from unreasonable searches and seizures in line with the Fourth Amendment, the new law lowers the standard necessary to permit disclosure of private Internet communications. The section also expands the government’s ability to install monitoring devices temporarily without a warrant on certain electronic devices in an ‘‘emergency situation’’ or on computers deemed ‘‘protected,’’ which Courts have understood to mean those involved in or affecting interstate or foreign commerce or communication. Although the standard of a ‘‘reasonable expectation of privacy’’ that has governed consideration of Fourth Amendment searches and seizures is in a state of flux and may well have shrunk in this new world of Internet connectivity, section 225 certainly narrows the scope of privacy rights over certain electronic communications.

The Homeland Security Act has also been criticized for eroding individual rights by authorizing the president to suspend collective bargaining rights for DHS employees if he or she deems that union activities are having a ‘‘substantial adverse impact’’ on homeland security. The act also limits liability, even in cases of negligence, for makers of critical vaccines against smallpox or anthrax with whom the department has contracted.

Sensitive to the civil liberties implications of the legislation, section 705 of the law created a position for the officer for civil rights and civil liberties while section 222 creates a privacy officer. The former is tasked with conducting investigations on allegations of civil rights abuses in DHS and providing advice to the secretary of homeland security as to matters concerning civil liberties. The officer, for example, has established a training program for DHS employees called Civil Liberties University. The privacy officer is similarly responsible for advising the secretary and for reporting on the privacy implications of DHS activities and new technologies.

Although DHS includes some administrative structures to review the privacy and civil rights effects of the Homeland Security Act, this has not prevented groups such as the American Civil Liberties Union from initiating litigation concerning border security practices or the sharing of airline passenger screening procedures. The focus on homeland security appears unlikely to recede in importance in the near future, so pressures on civil liberties will no doubt endure.

ANDREW FINKELMAN

References and Further Reading

  • Jones, Karen E., Comment and Casenote: The Effect of the Homeland Security Action on Online Privacy and the Freedom of Information Act, University of Cincinnati Law Review 72: 787.
  • Thessin, Jonathan, Recent Developments: Department of Homeland Security, Harvard Journal on Legislation 40 (2003): 513.

See also Electronic Surveillance, Technological Monitoring, and Dog Sniffs; 9/11 and the War on Terrorism; Patriot Act; Wiretapping Laws

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