Network Accountability for the Domestic Intelligence Apparatus

tags: Surveillance Danielle Citron Frank Pasquale

New oversight model required for intelligence-sharing system composed of multiple interacting agencies

Notes

A new concept of accountability-"network accountability"-is needed to address the shortcomings of fusion centers

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By operating at the seams of state and federal laws, they circumvent traditional accountability measures

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lack of oversight of fusion centers is both eroding civil liberties and wasting resources

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The structure of the ISE poses important new challenges to administrative law, a body of law built to address actions of individual agencies rather than the interactions of a network of agencies.

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dysfunctional transactions within networks of agencies rather than from any particular entity acting unilaterally

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due process should apply just as forcefully to agency interactions as they do to agency actions.

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liberty and security are mutually reinforcing, because nearly all the problematic abuses at fusion centers are distractions from their central anti-crime and anti-terror missions.

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As fusion center officials note, "There is never ever enough information….That's what post-9/11 is about."

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co-location of state, federal, and private actors creates confusing lines of authority

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improvisational development of fusion centers

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not clear why federal agents would not be required to comply with state privacy laws while working at the fusion center

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far from clear that more access to this digitized information actually leads to more actionable intelligence than it impedes

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Predictive data-mining tools have proven unreliable in crime- and terror-fighting efforts

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Analytical tools produce many false leads, draining scarce resources away from more effective crime-fighting endeavors.

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there are simply too few acts of terrorism from which to extrapolate future conduct

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exceptionalist mindset. Power that emerged as a response to an emergency is now being brought to bear on quotidian crime

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Surveillance has a profound chilling effect

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fusion centers adhere to what Jack Balkin has called "information gluttony"

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fusion centers have refused to respond to requests about their work on the grounds that they do not collect and retain data

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privacy harms will be ameliorated once decisionmakers have a complete picture of people who have been unfairly targeted or categorized

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cf Counting the Countless: opposition to the idea of fixing surveillance by expanding it

Because fusion centers often consist of collaborations among governmental units (and private parties), they create opportunities to shift activity to the least stringent regulatory regime

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do not host data but instead refresh it regularly.'" When the data is not actually residing permanently on a fusion center's server, it does not trigger the fair information practices required by some state and federal laws

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after FedEx's CEO announced that the company would cooperate with the government "up to and including the line on which we would be doing a disservice to our shareholders,"'" FedEx received a range of government perks

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agency-centered model of the rule of law that fails to address the unique challenges of networked interagency collaboration

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The unmonitored and unregulated spread of information from one node of the network to another (or to all other nodes) both swamps analysts and threatens to leave an indelible stigma on individuals unjustifiably caught in the network's dragnet.

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Audit logs typically are not tamper resistant

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argue that any failures of intelligence simply indicate underinvestment in it

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Posner's cost-benefit analysis aspires to provide a clear economic rationale for an apparatus that is hard-pressed to "prove a negative"-to demonstrate that its work prevented a given catastrophic attack

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remove the threat of terror from the deeply contested realms of emotion and politics to a more "rational" approach

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The Cold War, however, ushered in a new type of exception, "an era of 'permanent emergency"' in which sacrifices of constitutional rights were not clearly temporary or reversible

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Agency action is least reviewable at what might be termed the "highest" and the "lowest" levels of governance-when the government is conducting foreign affairs and national defense (in the realm of high politics), and when it is engaged in minor activities that most judges find too trivial to review

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Fusion centers operate at the intersection of "high" and "low" concerns, simultaneously too important and too trivial to require judicial review

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willingness of nodes in the fusion network to undergo independent audits from other network entities to assure objective assessments

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Crisis-driven reform of financial regulations has generated models of network accountability

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Notes

A new concept of accountability-"network accountability"-is needed to address the shortcomings of fusion centers

hubs known as "fusion centers" whose federal and state analysts gather and share data and intelligence on a wide range of threats.

By operating at the seams of state and federal laws, they circumvent traditional accountability measures

lack of oversight of fusion centers is both eroding civil liberties and wasting resources

The structure of the ISE poses important new challenges to administrative law, a body of law built to address actions of individual agencies rather than the interactions of a network of agencies.

dysfunctional transactions within networks of agencies rather than from any particular entity acting unilaterally

due process should apply just as forcefully to agency interactions as they do to agency actions.

liberty and security are mutually reinforcing, because nearly all the problematic abuses at fusion centers are distractions from their central anti-crime and anti-terror missions.

As fusion center officials note, "There is never ever enough information….That's what post-9/11 is about."

co-location of state, federal, and private actors creates confusing lines of authority

improvisational development of fusion centers

not clear why federal agents would not be required to comply with state privacy laws while working at the fusion center

far from clear that more access to this digitized information actually leads to more actionable intelligence than it impedes

Predictive data-mining tools have proven unreliable in crime- and terror-fighting efforts

Analytical tools produce many false leads, draining scarce resources away from more effective crime-fighting endeavors.

there are simply too few acts of terrorism from which to extrapolate future conduct

exceptionalist mindset. Power that emerged as a response to an emergency is now being brought to bear on quotidian crime

Surveillance has a profound chilling effect

fusion centers adhere to what Jack Balkin has called "information gluttony"

fusion centers have refused to respond to requests about their work on the grounds that they do not collect and retain data

privacy harms will be ameliorated once decisionmakers have a complete picture of people who have been unfairly targeted or categorized

Because fusion centers often consist of collaborations among governmental units (and private parties), they create opportunities to shift activity to the least stringent regulatory regime

do not host data but instead refresh it regularly.'" When the data is not actually residing permanently on a fusion center's server, it does not trigger the fair information practices required by some state and federal laws

after FedEx's CEO announced that the company would cooperate with the government "up to and including the line on which we would be doing a disservice to our shareholders,"'" FedEx received a range of government perks

agency-centered model of the rule of law that fails to address the unique challenges of networked interagency collaboration

The unmonitored and unregulated spread of information from one node of the network to another (or to all other nodes) both swamps analysts and threatens to leave an indelible stigma on individuals unjustifiably caught in the network's dragnet.

fusion centers are supposed to employ audit logs that record the activity taking place in the information-sharing network,"' including "queries made by users, the information accessed, information flows between systems, and date- and time-markers for those activities."

Audit logs typically are not tamper resistant

argue that any failures of intelligence simply indicate underinvestment in it

Posner's cost-benefit analysis aspires to provide a clear economic rationale for an apparatus that is hard-pressed to "prove a negative"-to demonstrate that its work prevented a given catastrophic attack

remove the threat of terror from the deeply contested realms of emotion and politics to a more "rational" approach

The Cold War, however, ushered in a new type of exception, "an era of 'permanent emergency"' in which sacrifices of constitutional rights were not clearly temporary or reversible

Fusion centers operate at the intersection of "high" and "low" concerns, simultaneously too important and too trivial to require judicial review

willingness of nodes in the fusion network to undergo independent audits from other network entities to assure objective assessments

Crisis-driven reform of financial regulations has generated models of network accountability