Steve C. Posner on 6 U.S.C. § 485 and the Newly Developing Information Sharing Environment

Steve C. Posner on 6 U.S.C. § 485 and the Newly Developing Information Sharing Environment

   By Steve C. Posner, Attorney, Posner Law Firm

The Information Sharing Environment may be the most important development in privacy since Louis Brandeis developed the concept more than a century ago. Learn what it is, how it is intended to work, the extent to which privacy is being protected as the Environment is implemented, and what it all means for you and your clients.

“The legal transformation from a “need to know” to a “need to share” culture among criminal and intelligence investigation agencies came to full conceptual bloom with the Intelligence Reform and Terrorism Prevention Act of 2004 § 1016, codified at 6 U.S.C. § 485, which, as amended by the National Transit Systems Security Act of 2007, formally created the Information Sharing Environment,” writes Steve C. Posner. “The concept was not altogether new; the term “information sharing environment” first appeared in a May 2001 congressional report concerning the vulnerability of Defense Department networks used to share sensitive law enforcement information in the war on drugs. “

“However, not until the latter half of 2004 did the Information Sharing Environment begin to take its presently evolving form with consideration of its impact on privacy,” explains Posner. “Part of the answer is in the technologies themselves. Anonymization technologies that will minimize the amount of information that is collected, quality control measures, auditing trails to make sure that information is not being abused or misused or compromised, and also the policies. The wall is now down. No one is proposing re-erecting it. Intelligence agencies and law enforcement agencies are sharing information as they never did before. The government agencies have broad collection authority. There is really not any information that the government does not have the legal authority to get.”

“But the Privacy Act and our other rules are outdated. And the guidelines have not been put in place for this new information sharing environment,” argues the author.” And these guidelines need not tie the hands of investigators and law enforcement and intelligence officials. In fact, the guidelines can empower the officials as well as constrain them, by telling them what is permissible and what they are authorized to do.”

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Steve C. Posner is the author of the annually updated legal treatise Privacy Law and The USA PATRIOT Act (LexisNexis/Matthew Bender), emphasizing the practical implications, burdens and options for organizations and individuals cooperating with and subject to government evolving reporting requirements, information requests and surveillance.

Mr. Posner frequently speaks on privacy and national security law to professional and community groups, as well as to undergraduate and graduate level university classes.

Mr. Posner is a former editor of the Technology Law and Policy Review column for The Colorado Lawyer magazine, and former co-chair of the Colorado Bar Association's Law and Technology Committee. He is admitted to practice law in Colorado, New York and California, and is in private practice in Evergreen, Colorado.

Privacy Law and The USA PATRIOT Act is available online to subscribers on lexis.com, and the print version can be purchased at The Store.

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