While the partial shutdown of the government continues to have significant implications for agencies like the U.S. Transportation Security Administration, with travelers holding their shoes struggling to navigate the nation's airports among desperately long lines, the shutdown's impact on less visible operations may not be apparent to civilians. But that doesn't mean those operations aren't taking a hit, as well. What happens to privacy at the federal level when those charged with operationalizing it are sitting at home?
The shutdown's impact on the Department of Homeland Security and the Federal Trade Commission, for example, isn't to be ignored, according to former and current professionals closely linked to the two.
Mary Ellen Callahan, who was chief privacy officer and chief Freedom of Information Act officer at the Department of Homeland Security from 2009 to 2012, said there are two significant impacts of the shutdown on privacy work at the federal level, regardless of agency or department. Using her former agency as an example, Callahan said, "DHS has this great oversight capacity and compliance capacity to review things, to give advice on what's going on. But the only people who are not furloughed are the exempt employees, so that's the CPO, that's some people in Customs and Border Patrol, U.S. Citizenship and Immigration and Customs Enforcement. So some of those privacy officers are there, but they can only work on stuff related to 'essential activities,' so they can't do privacy impact assessments, they can't do investigations. They kind of can only respond to what's going on at the moment."
So not only is DHS short on staff, but even those deemed "essential" and still reporting for duty each day can only deal with issues considered "critical operations." As a result, oversight and consultation are essentially dead across government at the moment.
"So if you go and have a data breach, that's something you can work on; you can call someone back for a data breach, but you can't do an ongoing investigation associated with the misuse of data," Callahan said. "You're operating with a much narrower set of authority and a much narrower ability to do your job."
Likewise, said Reed Freeman of WilmerHale in D.C., who worked in the Federal Trade Commission's Bureau of Consumer Protection as a staff attorney and now defends clients in front of it, the FTC is hamstrung at the moment given that the majority of staff is furloughed, save for the most senior management, such as the commissioners themselves. Most importantly, perhaps, the staff at the Division of Privacy and Identity Protection at the FTC is on furlough, so all investigations are on hold.
"There's nobody there to continue to work on them or to generate new civil investigative demands, so, it's a mess," Freeman said.
He added that while some senior staff and the five commissioners themselves are still deemed essential (so there could still be, for example, a commission vote held, if necessary), the agency's work on a daily level happens because of its staff, which executes the commission's agenda and priorities.
"I think those of us who've worked at the FTC have a real appreciation for what a small agency is able to accomplish — its footprint is way bigger than its actual size," he said. "It's a huge shame. The FTC staff is highly professional, extremely competent and dedicated, and I'm sure that they're frustrated that they're not getting paid, but they are also a very dedicated group of people, and I'm sure they're frustrated they're not able to do their jobs right now."
Notably, the Department of Commerce has been able to keep its Privacy Shield program up and running despite the shutdown, given that it's independently funded out of "cost recovery funds." The department's shutdown plan indicates 12 Privacy Shield administrators and a chief counsel remain at work.
However, Callahan echoed Freeman that it's not just the work itself that suffers. Also to be considered is "burnout for the people working and not getting paid," she said of furloughed employees reporting to work throughout the shutdown, who are "not being able to do their job as well because the infrastructure and the scope of the work are narrower." Relatedly, the agency itself suffers because the functions of training and compliance, the "meat and potatoes that happen every day" are absent, and as a result, the agency becomes "weaker and less privacy-centric," Callahan said.
She added that when employees do return, the focus is necessarily on triage and not long-term maintenance.
Then, there's morale.
"The privacy officers in DHS and throughout the government, it is a tough job, and people have made conscious choices to be public servants and serve the public good and be in a role that is not the favorite role, but they do that because they want to serve their country. And it has to be demoralizing to either be in a circumstance where you’re working, but it’s a limited work, or alternatively you’re at home where you can’t work," she said. "So I really think it’s gotta be a blow to all federal employees, but I think the privacy professionals in the government are vulnerable to claims of being essential and having their work seen as less-than somehow, even though it’s even more crucial in today’s environment."
Freeman echoed that the shutdown's implications reach beyond the immediately visible.
"I think the folks who work there are I’m sure frustrated, but the bar is frustrated [too]," he said of himself and his colleagues in the legal profession. "There’s nothing going on at the commission, which means that there’s less going on in the bar as it relates to commission work."
For now, it remains to be seen how much longer the shutdown will last as President Donald Trump struggles to convince Democrats to give him the funding he has demanded before opening the government back up. In the meantime, Callahan thinks of her former peers with some concern.
"I’m worried about them," she said. "I get it, this can’t be fun."
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