On August 22, 2013, the Department of Defense published a proposed rule and amendment to the Department of Defense Privacy Program. The current policy section of the Department of Defense’s Privacy Program states that “No record shall be maintained on how an individual exercises rights guaranteed by the First Amendment to the Constitution….” There are three enumerated exceptions: when retention is authorized by statute, where the individual has authorized it, or “when the record is pertinent to and within the scope of an authorized law enforcement activity.”
The Department of Defense’s proposed rule would expand the third exception to allow information relating to First Amendment-protected speech to be maintained when the record is “pertinent to and within the scope of an authorized intelligence or administrative investigation.” This exception – both as it stands and as revised – however is simultaneously overly broad and vague.
The Brennan Center submitted the following letter to the suggesting reforms to the Privacy Act and urges the Department of Defense to significantly narrow this exception.
Brennan Center Comments to Department of Defense Privacy Program Proposed Rule