In the debate over how much information the government should be able to collect from people, defenders of government acquiring significant amounts of information argue that the information cannot be accessed unless there is a good reason for doing so, such as acquiring information against a terrorist threat. Critics, however, counter that there is no assurance that the government will not access the information in other circumstances. Experience with government information collection certainly reveals numerous circumstances where unauthorized access occurs, with the penalties seeming to be quite limited. For an example, see here.
If private information is to be collected, then we need a better system of disciplining those who wrongfully access it. Relying on ordinary government officials to impose the discipline is not adequate. They often lack the inclination or incentive to impose a sufficient punishment.
Here is my proposal. It should be made a crime with strong penalties to improperly access information. When there is evidence that information has been accessed improperly, the case should be investigated and prosecuted by a specific official whose duty it is to investigate such matters. That official should have been appointed with the advice and consent of the Senate.
The law should largely eliminate prosecutorial discretion in these cases, requiring that the case be prosecuted if there is probable cause to believe that a crime has been committed. If this special prosecutor concludes there is no probable cause, then he should be obligated to write a report explaining why and to send that report to the relevant congressional committees.
I believe this arrangement would be constitutional under both the orignial meaning and current law. Some people believe that prosecutorial discretion is an inherent aspect of executive power, but I don't. Instead, it is a common procedure, that normally makes sense because we don't want all cases prosecuted, but it is not constitutionally required.
This arrangement would not, of course, perfectly prevent the improper accessing of information, but it would provide a much better system for preventing it than the usual one of prosecution by ordinary government officials.
(Cross posted at the Liberty Law Blog)
Posted at 7:59 AM