Privacy SOS

Security clearances gone wild — at the Department of Education?

Workplace privacy in the US in 2012: do we have any?
Imagine you are contracted through work to do a project for the government. Now imagine that before doing your job, the government requires that you undergo national security level personnel screening. The screening includes fingerprinting; background checks; interviews about you with your current and past neighbors or employers; inquiries to your doctor about your psychological state; and any information that might “include, but is not limited to…academic, residential, achievement, performance, attendance, disciplinary, employment history, criminal history record information, and financial and credit information.” 
Now imagine that you are undergoing this kind of government interrogation so that you can help write a report on truancy for the Department of Education. Seems a little odd, no? 
But it’s true. According to a number of critics of the screening policy, including Andrew Zucker of the Concord Consortium, among the 1.2 million people with security clearances in the US are a number of education researchers, who are required by law to go through national security screenings to determine their “character, conduct and loyalty to the United States.” The American Educational Research Association has opposed the screenings since 2007.
After 9/11, the Bush administration implemented policies that required extensive background checks for people working for federal agencies — including contractors. These security screenings make sense in the context of intelligence and national security work, but the rules are being broadly applied by the Department of Education in a manner many critics say recalls the loyalty oaths of the bad 1950s. 
The issue centers on a Department of Education (ED) policy first issued in 2004 in light of a Bush administration executive order, and then reissued by ED in July 2010. The policy requires all contractors and employees to undergo extensive background checks if the contractors either “require access to unclassified sensitive information, such as Privacy-Act-protected, personally-identifiable, proprietary or other sensitive information and data” or “perform duties in a school or location where children are present.” The policy sounds reasonable on its face, but upon closer inspection it becomes clear that instead of protecting the privacy or safety of children in the education system, it is in fact redundant and privacy-invasive of researchers. 
The rules are redundant because, as Zucker notes, other “laws and regulations  adequately safeguard unclassified sensitive information and school buildings.” Among these laws are the Federal Information Security Management Act of 2002; Parts 34 and 45 of the Code of Federal Regulations; and internal Department of Education rules that impose a penalty of up to five years in prison and a $250,000 fine for unauthorized disclosure of individually identifiable information. 
Representatives from 100 organizations across the United States signed on to a letter to the ED in 2007, underscoring these points. The letter read, in part: “These [clearance] requirements are far beyond bounds of reason, necessity, and decency. There are ample provisions in law, contract language and regulations to protect the privacy of any personally identifiable data gathered by researchers (e.g. student test scores) and to address other reasonable concerns.”
Zucker quotes a senior manager at a research company that regularly contracts with ED on the issue of the background checks: “J. Edgar Hoover is alive and well!”
The Department of Education’s policy, implementation of which costs the government and researchers millions of dollars a year, is unnecessary, costly and disrespectful of the privacy rights of thousands of academic researchers who want to work for the government without being subjected to extremely invasive, national-security-level background screenings. 
All it would take for this wrongheaded policy to change is a stroke of the pen at the education department. In the interests of thrift and privacy, we urge Secretary of Education Arne Duncan to pick up that pen and make the change.

© 2021 ACLU of Massachusetts.