Friday, June 12, 2009

Terrorist Background Check

Yesterday I reported on the DHS ICR for their proposed solution for conducting terrorist database background checks for personnel with access to restricted areas or secure areas within high-risk chemical facilities. Today I would like to take another look at the issue with less of a reportorial approach. Specifically, I would like to take a look at some of the items I would like to see discussed in public comments on this ICR. Facility Notification I noted yesterday that “The submitting facility would not be notified by DHS of the results of the TSDB screening.” That means that if an employee’s name showed up on the TSDB check, the facility would not be notified by DHS that that employee was potentially a terrorist or linked to a terrorist. At most, the ICR notes that “high-risk chemical facilities may be contacted by Federal law enforcement as a part of appropriate law enforcement investigation activity” (74 FR 27555). There is no explanation of why DHS would not notify the facility that there was a potential terrorist working at that facility. One can make a pretty good guess as to why DHS is taking this stance. First off, the mere presence of a person’s name on the TSDB does not mean that the person is a terrorist or has even associated with Terrorists. As we have seen with the ‘No Fly List’ there have been a number of very public instances of confusion of innocent people with potential terrorists because of name similarity. There are undoubtedly an at least equal number of unreported instances where person’s name was incorrectly placed on the list. This means that requiring or even allowing high-risk chemical facilities to make personnel decisions based on the mere match of an employee’s name with a name on the TSDB would be patently unfair. Civil liberties organizations should certainly applaud the approach that DHS is taking. On the other hand, the match does mean that there is at least a chance that an employee with access to restricted areas or security areas at a high-risk chemical facility is a terrorist planning an attack or a terrorist sympathizer providing information to terrorists planning an attack. While a ‘Federal law enforcement’ agency is getting around to conducting their investigation the planned terrorist attack could happen. The DHS approach is probably the correct way to deal with this situation, but I think that there needs to be a public discussion about the assumptions being made. This ICR and the public comment period is the appropriate place for such a discussion. Notifying Employees about the Check DHS is proposing to effectively transfer responsibility to facility management for informing individual employees about the Privacy Act issues regarding the facility submission of PII (personally identifiable information). Since the facilities are the ones actually collecting and transferring the data, I suppose that this makes a certain amount of sense. At the same time, however, DHS is proposing to publish Federal Register Notices about the same Privacy Act requirements. While it might be reasonable to expect that high-risk chemical facilities would read (or pay someone to read for them) the Federal Register watching for such notices, it is beyond the realm of reasonable supposition to assume that the average employee would do so. I would like to suggest a reasonable alternative. DHS could come up with a poster explaining the program similar to the ubiquitous OSHA posters about a wide variety of regulatory programs. These could be posted on employee bulletin boards at high-risk chemical facilities. While these types of posters are not read with any great frequency, they are much more likely to be read by the affected parties that Federal Register Notices. Unescorted Visitors Having worked in chemical production facilities for a number of years, I agree that there are a number of ‘visitors’ (not employees, not contractors) that frequently move about certain areas of chemical facilities on a fairly routine basis. Small package delivery drivers and a wide variety of vendors (uniform and industrial mats vendors come easily to mind) are frequently overlooked because they are such a common site at these facilities. The big problem with most of these ‘visitors’ is that they are relatively invisible and there is a certain amount of inevitable turnover in these positions. I would like to see some comments on how high-risk chemical facilities would manage the identification and clearance of these personnel. I think that rather than facilities doing background checks on these ‘unescorted visitors’, covered chemical facilities will probably resort to requiring escorts or setting their employers up more like contractors and transferring the background check responsibility to those companies.

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