Danielle Keats Citron and Frank Pasquale
Volume 62, Issue 6, 1441-1494
A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens’ privacy, and chill free expression. In addition to eroding civil liberties, fusion center overreach has resulted in wasted resources without concomitant gains in security.While many scholars have assumed that this network represents a trade-off between security and civil liberties, our study of fusion centers suggests these goals are, in fact, mutually reinforcing. Too often, fusion centers’ structure has been based on clever legal strategies for avoiding extant strictures on information sharing, rather than on objective analysis of terror threats. The “information sharing environment” created by fusion centers has short-circuited traditional modes of agency accountability. Our twentieth- century model of agency accountability cannot meaningfully address twenty-first-century agency coordination.A new concept of accountability—“network accountability”—is needed to address the shortcomings of fusion centers. Network accountability has technical, legal, and institutional dimensions. Technical standards can render data exchange between agencies in the network better subject to review. Legal redress mechanisms can speed the correction of inaccurate or inappropriate information. A robust strategy is necessary to institutionalize these aspects of network accountability.