November 27, 2002

By A.C. Thompson

The Homeland Security Act signed by President George W. Bush Nov. 25 is certain to make corporate America feel secure, cheery even, in this season of economic gloom. The law, which will establish a new, 177,000-employee Homeland Security Department, is loaded with perks for big business – and peril for personal liberty.

Perhaps most significantly, the law exempts businesses from being sued under certain circumstances. Section 803, headlined "Litigation Management," will relieve companies manufacturing counterterrorism technology from liability should their products cause injury or death.

Before the bill had even reached Dubya's desk, Public Citizen, a Ralph Nader-founded government watchdog group, was hollering. "These are the special deals that industry gets out of the people they give large campaign contributions to," Public Citizen president Joan Claybrook tells us. The no-liability provisions, she adds, are a stealth move by conservatives to push tort-law reform, a concept long embraced by CEOs and loathed by trial lawyers and consumer advocates. "Big corporations hate liability," she says.

Drug companies get an even better break: for injuries or illnesses caused as side effects of vaccines, the liability exemption is retroactive. It's a legislative handout. Consider the context: vaccine companies are under fire for including high doses of mercury in their products during the 1990s, a practice that has spurred parents in at least 35 states to sue a host of major pharmaceutical companies, among them Pfizer, GlaxoSmithKline, Merck, and Eli Lilly. The now-doomed suits are a bid to force the companies to scrutinize a possible link between mercury-laden vaccines and autism.

Another possible big business boon comes in a section covering "critical infrastructure" – that is, power generation and the electrical power grid, telecommunication systems, oil refining, water and sewage systems, food production, and so on. The law encourages companies in these fields to communicate with the Homeland Security Department regarding their vulnerabilities to terrorism. The information will be kept secret and exempted from the federal Freedom of Information Act.

For corporations with a habit of spewing toxic chemicals into the air or dumping heavy metals into rivers, the new law could be a way to avoid public scrutiny – and legal hassles. If a company admits to improperly storing hazardous materials or failing to maintain its facilities, that information, by decree of the Homeland Security Act, can't be used by federal or state prosecutors.

"There's very widespread concern that homeland security measures are being used to protect polluters and withhold information that doesn't need to be withheld," says Bradley Angel, executive director of Greenaction, a San Francisco-based environmental justice group that relies heavily on government documents.

At the Environmental Protection Agency, officials aren't entirely sure how the new rules will affect their operations. "It's difficult to read the tea leaves at this point," says Daniel Meer, an EPA emergency management expert. "I'm sure there are going to be all kinds of working groups and meetings."

While the law shields corporations from citizens' prying eyes, it subjects the public to increased electronic snooping by the feds. Under the rubric "Cyber Security Enhancement," federal agents will be able to monitor the e-mail of suspected hackers, without a court order. The law shreds privacy-protecting rules, allowing Internet service providers to turn over their customers' e-mails to the feds without a warrant.

"There's really no justification for this," argues Lee Tien, senior staff attorney for the Electronic Frontier Foundation, a cyber-liberties group. "I think it's likely there'll be use of this power for illegitimate reasons."

Of course, if the Defense Department gets its way, the privacy-infringing aspects of the Homeland Security Act will seem almost quaint. The Pentagon, as you've probably read, is trying to build the Death Star of surveillance, the Total Information Awareness system, a massive "data-mine" of e-mail messages, phone call records, financial documents, and other personal information.

Tien warns, "This would mean tremendous power to do surveillance. The threats to civil liberties are enormous."