Suchergebnisse

We have become accustomed to the concept, once thoroughly horrendous to most lawyers, that the dispensation of justice may, be properly entrusted to those tribunals which, for want of a better term, we label administrative. In past years they were considered the illicit offspring of miscegenatious commingling of powers which,constitutionally, should have been kept in rigid segregation. In the last half century, this habit of thought has all but disappeared; our concern has been rather with the full acknowledgment and acceptance of these agencies into the family of makers and appliers of the law. We have undertaken to nurture and instruct them in the etiquette of the urbane administration of justice, and in the arts and the crafts of the prudent government of men and things. Notable products of this changed attitude are the various acts, federal and state, dealing with administrative procedure. Also, we must call to mind the many scholarly works on the general topic and specific phases of administrative law, and the acceptance of this subject as a special title in the encyclopedic search books and the compendious digests of the law.

Administrative agencies increasingly rely on technology to achieve substantive goals. Often this technology is employed to collect, exchange, manipulate and store personally identifiable information, raising serious concerns about the erosion of personal privacy. Congress has recognized this problem. In the E-Government Act of 2002, it required administrative agencies to conduct privacy impact assessments (PIAs) when developing or procuring technology systems that handle personal information. Despite this new requirement, however, agency adherence to privacy mandates is highly inconsistent. In this paper, we ask why. We first explore why both process requirements and traditional means of political oversight are often weak tools for ensuring that policy reflects privacy commitments. We then consider what factors might, by contrast, promote agency consideration of privacy concerns. Specifically, we compare decisions by two federal agencies - the Department of State and the Department of Homeland Security - to use RFID technology, which allows a wireless-access data chip to be attached to or inserted into a product, animal, or person. These two cases suggest the importance of internal agency structure, culture, and personnel, as well as alternative forms of external oversight, interest group engagement, and professional expertise, as important mechanisms for ensuring bureaucratic accountability to the secondary privacy mandate imposed by Congress. The analysis speaks to debates in both public administration and privacy protection. It implicates disputes over the efficacy of external controls on bureaucracy, and the less-developed literature on opening the black box of administrative decisionmaking. It further offers insight into pre-conditions necessary to advance privacy commitments in the face of social and bureaucratic pressure to manage risk by collecting information about individuals. Finally, it offers specific proposals for policy reform intended to promote agency accountability to privacy goals.

"The National Government and the States should be regarded not as competitors for authority but as two levels of government cooperating with or complementing each other in meeting the growing demands on both."1