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The Hidden Costs of Terrorist Watch Lists

75 Pages Posted: 10 Jun 2013 Last revised: 19 Jul 2013

Anya Bernstein

University at Buffalo Law School

Date Written: 2013

Abstract

Courts have started to recognize standing to sue for those on the government’s No Fly List, which bars listed individuals from flying. This salutary step, however, leaves untouched the complex watch list infrastructure on which the No Fly List is built and whose flaws it inherits. Lower-profile watch lists have fewer determinate consequences on listed individuals than the No Fly List does. But, this article argues, they exact substantial costs.

This article first explains why the incentive structure of terrorist watch lists encourages government agencies to list more people than necessary and not to check their work. It then demonstrates how a misguided understanding of the relationship between false positives and false negatives obscures the effects of these perverse incentives. Those effects, the article shows, extend beyond individuals listed on a watch to include government agents and agencies, public policy, and society at large. Yet, as I explain, neither the current statutory regime nor judicial doctrine can address these broad negative effects; even scholarship largely misses the point. To remedy this situation, this article proposes ways to build self-assessment and improvement — in the form of Bayesian updating — into the watch list process. More broadly, the article contributes to attempts to analyze and constrain the government’s use of big data.

Suggested Citation

Bernstein, Anya, The Hidden Costs of Terrorist Watch Lists (2013). 61 Buffalo Law Review 461 (2013). Available at SSRN: https://ssrn.com/abstract=2276685

Anya Bernstein (Contact Author)

University at Buffalo Law School ( email )

School of Law
624 O'Brian Hall
Buffalo, NY 14260-1100
United States

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