61 Pages Posted: 23 Mar 2010 Last revised: 14 Jun 2010
Date Written: March 16, 2010
The conventional wisdom is that the USA PATRIOT Act tore down the wall that prevented counterterrorism officials from sharing information with one another. Yet a number of laws remain on the books that could restrict data exchange, including the National Security Act of 1947, the Posse Comitatus Act, and the Privacy Act. Each statute reflects a blend of distinct policy concerns – for instance, preventing criminal investigators from evading the legal limits on domestic surveillance, keeping military and intelligence agencies from using excessive force in contexts where it’s unjustified, ensuring that the armed forces remain subordinate to civilian authorities, and safeguarding individual privacy against government intrusions. These laws are overbroad; they have the potential to restrict not just the harmful conduct Congress sought to proscribe, but also innocent information sharing. In fact, it’s possible to expand sharing while simultaneously vindicating these laws’ underlying principles. Intelligence agencies are unlikely to collect evidence for law enforcement officials to use in criminal proceedings, because doing so would undermine their institutional interests. Information sharing can mitigate intelligence and military incentives to operate in inappropriate spheres. The chances that data exchange might undermine civilian control of the military are too slight to justify sharing restrictions. And information sharing can preserve privacy values by reducing the need for agencies to engage in multiple rounds of privacy-eroding surveillance.
Keywords: al Qaeda, American Airlines, CIA, Central Intelligence Agency, FBI, FISA, Federal Bureau of Investigation, Foreign Intelligence Surveillance Act, hijackers, Khaled al Mihdhar, Pentagon, republicanism, Roberta Wohlstetter, Steve Bongardt, Umar Farouk Abdulmutallab
JEL Classification: C80, H56
Suggested Citation: Suggested Citation
Sales, Nathan Alexander, Mending Walls: Information Sharing after the USA Patriot Act (March 16, 2010). Texas Law Review, Vol. 88, p. 1795, 2010; George Mason Law & Economics Research Paper No. 10-16. Available at SSRN: https://ssrn.com/abstract=1572984