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Abstract

“ARMED AND DANGEROUS.” Imagine those words flashing on a Customs and Border Protection (“CBP”) agent’s computer screen as you attempt to reenter your country of birth from a relaxing vacation. Reacting to the computerized warning, the CBP agents detain and question you for several hours before you are released from custody—without an explanation—and allowed to continue on your trip home as if nothing had happened.

This hypothetical scenario became very real for Julia Shearson and her four-year old daughter in January 2006, and marked the beginning of her quest for answers. Why was she flagged as “ARMED AND DANGEROUS?” What actions had she taken that led the government to classify her in this way? Could she obtain documents held by the Department of Homeland Security (“DHS”) and CBP that might indicate why she was detained? What recourse does she have to clear her name?

In addition to Shearson’s concern about being misclassified, her situation also raises several national policy questions. What effect would mandatory disclosure requirements of an agency’s inner operations have on its ability to protect the United States from threats to national security? Under what circumstances should a federal agency that possesses sensitive information relating to national security be allowed to exempt itself from the disclosure requirements?

These questions highlight the broader issue of establishing equilibrium between personal privacy and national security in the twenty-first century. The notion that people needed to sacrifice some individual freedoms in return for the protection provided by organized society was developed early on in political philosophy. But striking the appropriate societal balance between personal liberties and security has proven to be extremely difficult, and supporters for each have even taken to social media sites to advocate for their position. Congress attempted to weigh these two competing considerations in its passage of the Privacy Act of 1974 (“Privacy Act”), which regulated the type of information a federal agency could maintain on an individual, but provided agencies with exemptions from the disclosure requirements for law enforcement activities. The United States has changed dramatically since the Privacy Act’s passage though, and several authors have noted that society now tends to give security more weight than personal liberties, especially after the events of September 11, 2001.

This Article argues that the Sixth Circuit Court of Appeals improperly held that Shearson may compel DHS and CBP—a law enforcement branch of the DHS—to disclose documents relating to her detainment under the Privacy Act, and asserts that congressional action is required. Part II provides a general overview of the Privacy Act and the factual background of Shearson’s case. Part III surveys other circuit court cases that have wrestled with interpreting the extent of the permissible exemptions under the Privacy Act’s general exemptions provision. Part IV of this Article details both parties’ positions and summarizes why Shearson’s argument persuaded the Sixth Circuit. Part V critically analyzes the Sixth Circuit’s reasoning and suggests that the court’s holding was improper in light of the Privacy Act’s plain language and the likely effects of its decision on national security. Part VI explores the potential implications of the Sixth Circuit’s ruling on the future of personal privacy and the national security of the United States.