Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 41
29 Pages Posted: 2 May 2006
Since the attacks of September 11, 2001, the 9/11 Commission, the Administration, and many others have supported much greater information sharing to protect national security. This article examines how to pursue information sharing programs - the sharing of personally identifiable information - consistent with privacy, overall security, and civil liberties.
Part I of the article describes the support for increased information sharing. It then examines the Information Sharing Paradigm which depends on three key premises: (i) the threat has changed; (ii) the threat is significant, especially due to weapons of mass destruction; and (iii) progress in information technology offers the most effective response to the new threat. Taken together, these three premises support greatly expanded information sharing to fight terrorism. Observers may vary in how they assess the empirical truth of the three premises, but the three premises offer a helpful summary of the context for recent policy debates about information sharing.
Part II draws on academic research and the author's experience in government to offer a due diligence checklist for assessing proposed programs of information sharing:
1. Will the proposed sharing tip off adversaries? (To the extent it does, no or less presumption favors information sharing.)
2. Ends/means rationality. Does the proposal improve security? Cost-effectively?
3. Is the proposal security theater? How much does it provide the appearance of security?
4. Are there novel aspects to the proposed surveillance and sharing? What risks, if any, accompany these novel aspects?
5. Are there relevant lessons from historical instances of abuse? What checks and balances would mitigate risks of such abuse?
6. Do fairness and anti-discrimination concerns reduce the desirability of the proposed program?
7. Are there ways that the proposed measure could make the security problems worse?
8. What are the ramifications internationally and with other stakeholders?
9. Are there additional, privacy-based harms from the proposed measure?
10. Will bad publicity undermine the program?
There is a great urgency to adopt effective measures to fight terrorism and protect national security. In light of the urgency to take action, proponents of a new program can err on the side of optimism. They can conclude too readily that the program will improve security and have negligible side effects. In response, the due diligence checklist can provide important rigor in analyzing new proposals. There are characteristic ways that information sharing programs might go wrong. We should check for those problems before implementing such programs.
Keywords: intelligence, homeland security, FISA
JEL Classification: D73, H11, H56, K10, K19, K23, K42
Suggested Citation: Suggested Citation
Swire, Peter, Privacy and Information Sharing in the War on Terrorism. Villanova Law Review, Vol. 51, 2006; Ohio State Public Law Working Paper No. 63; Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 41. Available at SSRN: https://ssrn.com/abstract=899626