The changing political landscape: the war on terrorism delays congressional action on privacy, the Paperwork Reduction Act, and e-government. (Capital edge: legislative & regulatory update).

The recent terrorist attacks on the United States have radically changed political agendas worldwide.

The pre-September 11, 2001, U.S. legislative agenda has been postponed until well into the 2002 session of Congress. Both the U.S. House of Representatives and the Senate are delaying most legislative business in order to complete work on anti-terrorism legislation, an economic stimulus package, and appropriations for fiscal year 2002.

There had been as many as 12 congressional hearings on Internet privacy and e-government in the months leading up to September 11. Since then, there have been numerous hearings focusing on more pressing concerns, such as critical infrastructure, bioterrorism, and homeland security. Likewise, the debate over Internet privacy now focuses on possible civil liberty violations with anti-terrorism legislation. The Bush Administration has asked Congress for additional powers to conduct surveillance, install wiretaps, and gain access to information about individuals. A new congressional debate could involve balancing individuals' civil liberties with the need for law enforcement officials to have increased surveillance powers for investigating suspected terrorists and terrorist activities.

Paperwork Reduction Legislation Postponed

In 2001, Congress held three hearings concerning paperwork reduction efforts in the government, and the House passed one bill relating to small business paperwork reduction (H.R. 327). Now, it is unlikely this bill will receive any attention in the Senate. Even though the Paperwork Reduction Act (PRA) was scheduled to be reauthorized in 2001, any substantive changes to the underlying PRA will have to wait for later reauthorization legislation.

The Latest on E-Government Initiatives

Congress has had an interest in e-government initiatives for a number of years, with various bills seeking to streamline government information management systems introduced. The most recent legislation is the e-Government Act of 2001. Introduced in both the House (H.R. 2458) and the Senate (S. 803), the legislation would consolidate the information management functions of the Office of Management and Budget (OMB) by creating a federal chief information officer (CIO).

Sen. Joe Lieberman (D-CT), the Senate sponsor of S. 803, has held one hearing on the subject. The House Government Reform Subcommittee on Technology and Procurement Policy had scheduled a hearing on October 17 to discuss electronic government and information technology initiatives. The hearing was cancelled after the House building was temporarily closed due to anthrax exposure. Written testimony submitted to the subcommittee reveals potential differences between the Bush Administration and congressional sponsors of the e-Government Act. Mark Foreman, associate director for information technology and e-government at the OMB, was scheduled to review the administration's goal of developing a more "citizen-centric" government through the use of the Internet and to describe ways of developing a government-wide information technology policy. Foreman was also expected to outline the administration's Enterprise Information Management and Integration Initiative, which seeks to use the principles of "unify and simplify" to identify e-government priorities. In October, he announced that the OMB would soon release a list of 23 approved e-government initiatives based on the unify and simplify criterion.

Also scheduled to appear before the subcommittee were the federal CIOs of the treasury, education, labor, health and human services, housing and urban development departments, and the Federal Emergency Management Agency. In their written testimony, the CIOs emphasized the need for Congress to fund adequately the technology required by federal agencies to carry out their missions. In addition, the testimony indicated that maintaining a skilled information technology workforce in the coming years will likely prove a challenge for many government agencies if human resource investments are not made. The testimony also recommended legislation to reduce burdens on citizens providing information to the government and stronger statutory authority to enforce interagency and intergovernmental cooperation.

While both the executive branch agencies and Congress appear to be focused on enhancing efficiency, increasing access to government services by citizens, and eliminating redundancies, it is yet unclear whether the vision of a federal CIO, as outlined in the e-Government Act, will be changed to reflect the new realities of the post-September 11 world. Senior staff on the Senate Governmental Affairs Committee, which Lieberman chairs, indicate that changes are expected to result from ongoing negotiations with the OMB; however, given the atmosphere of uncertainty on Capitol Hill, the legislation is not likely to move soon. These negotiations are intended to address the Bush administration's opposition to any statutory mandate. However, since Lieberman's introduction of the e-Government Act, the president has created the post of "CyberSecurity Czar" within the new Office of Homeland Security (OHS), headed by former Pennsylvania Governor Tom Ridge.

New Homeland Security Czar to Protect Information Systems

The OHS has been asked to coordinate efforts to protect critical public and privately owned information systems within the United States from terrorist attack. The executive order, issued on October 8 by President Bush, also has assigned OHS to coordinate efforts between federal, state, and local agencies to ensure rapid restoration of public and private critical information systems after disruption by a terrorist threat or attack. The executive order also gives Ridge the authority to review the budgets of all federal agencies that engage in security activities and make recommendations to ensure that funding levels are "necessary and appropriate" for each agency prior to the submission of the president's annual budget request to Congress.

Ridge has appointed Richard Clarke as special advisor to the president on cyberspace security and General Wayne Downing (Ret.) as deputy national security advisor to the president on counter-terrorism. Clarke will be in charge of combating cyberterrorism and protecting essential information networks. He will protect information systems ranging from transportation, communications, utilities, health, banking and financial, and emergency service, and accessing information from industry in order to track and prevent cyberattacks. Downing, a retired army general with experience in counterterrorism, will work with the military and intelligence community in advising the president on efforts to detect and disrupt international terrorism and the organizations that sponsor terrorism.

Anti-terrorism Legislation Raises Privacy and Civil Liberties Concerns

Immediately after the terrorist attacks of September 11, the Bush Administration asked Congress for new and expanded powers to prosecute individuals involved in the attacks and to prevent future attacks.

The House and Senate Judiciary Committees have held hearings about the administration's proposed antiterrorism legislation, with U.S. Attorney General John Ashcroft urging the committees to give law enforcement and the intelligence community required additional powers to respond to and prevent terrorist activity. The administration has asked for authority to

* conduct roving wiretaps

* enhance the authority of the Immigration and Naturalization Service to detain and remove suspected terrorists

* allow law enforcement to seize a suspected terrorist's voice mail and e-mail with a search warrant

* increase the sentences for the commission of terrorist acts and those who support terrorist organizations

* enhance the capacity of the government to cripple the terrorist financial infrastructure and impose criminal liability on those who knowingly engage in financial transactions related to terrorist activities

* provide the U.S. attorney general with greater discretion and authority to disburse funds for rewards offered in connection with terrorist crimes

While the judiciary committees appear willing to grant stronger terrorism-fighting tools, members of Congress from both parties have expressed a need to strike a balance between civil liberties and national security.

Both the House and Senate have passed anti-terrorism legislation. The final bill, signed by President Bush, is the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001. The act, which amends numerous existing legislative pieces, provides the FBI director with access to certain business records for foreign intelligence and international terrorism investigations.

In line with U.S. legislation is Canada's proposed Public Safety Act, which would strengthen the government's ability to improve Canadians' safety and prevent and respond to terrorist attacks. The bill, like the USA PATRIOT Act, proposes to amend a number of existing laws.

Development of Privacy Legislation Continues at Slow Pace

Over the past several years, the Internet privacy debate has been shaped by two competing Senate bills introduced during the 106th Congress: S. 2829, introduced by Sen. John McCain (R-AZ), and S. 2606, introduced by Sen. Fritz Hollings (D-SC). These involve one or more of the four fair information practices developed by the Federal Trade Commission (FTC) and the requirement of the opt-in versus opt-out approach for privacy policies.

On October 4, however, FTC Chairman Timothy Muris said that the commission would no longer advocate for online privacy legislation, but would refocus its efforts on increasing enforcement of existing laws. This decision reverses past FTC calls for online privacy legislation that began in May 2000 under Chairman Robert Pitofsky and which included the four fair information practices of notice, choice, access, and security.

Muris offered several reasons for opposing online privacy legislation. He noted the difficulty and confusion generated by the privacy notices required under the Gramm-Leach-Bliley Act, which restricts financial institutions from providing customer information to be used in third-party marketing.

On October 12, Rep. Billy Tauzin (R-LA), chairman of the House Energy and Commerce Committee, and Rep. Cliff Stearns (R-FL), chairman of the House Commerce, Trade, and Consumer Protections Subcommittee, held a news conference to release an outline on proposed privacy legislation to be introduced in 2002. Stearns has held a series of six hearings on information privacy issues pertaining to the public and private sectors. The Tauzin/Stearns legislation would pre-empt state laws relating to the collection, processing, use, disclosure/dissemination, and sale of personally identifiable information; deny private rights of action, relying instead on enforcement by the FTC; and impose privacy safeguards for both online and offline information activities. The legislation will include notice and choice requirements and a safe harbor for compliance where organizations would comply with self-regulatory guidelines approved by the FTC.

The prospects for PRA reauthorization and Internet privacy will be determined in large part by the amount of attention the Bush administration and Congress must give to the war on terrorism. However, elements of government efficiency and privacy may be addressed as they relate to the government's focus on homeland security and anti-terrorism measures.

Read More About It

The following are helpful Web sites for monitoring late-breaking U.S. and international legislation:

* National Journal Group Inc. at www.nationaljournal.com/ (a publisher of magazines, newsletters, books, and directories focusing on politics, policy, and government)

* U.S. House of Representatives at www.house.gov

* U.S. Senate at www.senate.gov

* Washington Policy Watch and CLARA National and Province Report at www.arma.org/ members/index.cfm (available to ARMA International members only)

Bob Tillman is Director of Public Relations and Government Advocacy for ARMA International and can be reached at [e-mail]