The Volokh Conspiracy

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National Security

Federal Government Has Shared Watchlist Info with 1,400 Private Groups

Due Process Concerns Abound


A number of lawsuits have challenged (largely Muslim) individuals' inclusion on the governmental no-fly list and other watchlists. My coauthor Cassandra Robertson and I have written before about the significant due process problems with these lists, which are rooted in the secrecy surrounding why a person ends up on such a list and the great difficulties in getting oneself removed. All that is needed to be placed in the Terrorism Screening Database and on a watchlist is "reasonable suspicion" on the part of the government (a primer on how this occurs is here).

While the problems and legal challenges began before the Trump presidency, an ongoing lawsuit by twenty-five persons on such lists is Elhady v. Piehota, which involves the Trump administration's first assertion of the state secrets privilege in this context. The complaint in the case is available here, and the district court's ruling on the government's motion to dismiss is here.

After initial attempts not to disclose this fact, the government has now acknowledged that it has shared watchlist information with 1,400 private entities. While the plaintiffs are still seeking to obtain more insights into which entities received that information and how it is being used, organizations such as hospitals and universities appear to be included.

As many suspected, being placed on a watchlist thus has even more far-reaching implications than affecting one's dealings with the government or travel situations; it could play a role in medical treatment, university admissions, or employability. Right now, we simply don't know which organizations and areas are affected, but the risk of widespread stigmatizing effects on innocent people will hopefully increase the courts' willingness to impose restrictions on the government's overly broad ability to add individuals to watchlists and to share the lists with private parties.